With Southern Californians gearing up for a critical hearing Friday on whether to place major new restrictions on beach bonfires, air quality officials are drawing criticism for refusing to release key records detailing staff deliberations and communications on the issue.
When the South Coast Air Quality Management District took up the bonfire issue earlier this year, opponents alleged that board Chairman Bill Burke had pressured agency staff to pursue a ban on the popular coastal activity.
To explore whether the claim was valid, Voice of OC requested on April 8 all the email traffic among agency staff and board members on the bonfire issue.
Yet more than three months after that request under the Public Records Act, reporters are still waiting for many of the records.
“If we’re talking about electronic records, there’s no excuse for going on for months or even weeks,” said Terry Francke, and expert of the Public Records Act. Searching for emails is relatively quick, he said.
Francke, general counsel at CalAware and open-records consultant to Voice of OC, said the AQMD should have finished handing over the emails long ago.
“The law says the records are to be made promptly available,” said Francke. The agency should also have been clearly communicating about any delays, he added.
“The rule is that you’re entitled within the first 10 days to a notification in writing … indicating which, if any, records are going to be made available to you, and if others are not going to be made available to you, which records those are, with the legal citations to the authorities that allow them to say no,” said Francke.
That 10-day notification deadline can be extended by up to 14 more days if officials can’t make the initial determination “without some unusual work,” he added. The 14-day extension would have to be explained in writing, Francke said.
In AQMD’s case, the agency never sought a 14-day extension. Its only notice, dated the day after the request, didn’t state when the records would be available or why there would be a delay.
The AQMD board is set to vote Friday on a host of new restrictions against beach bonfires, including a ban on fire rings within 700 feet of homes that is believed would eliminate all of Newport Beach’s rings.
The proposal also bans beach burning when high levels of fine particles are forecast and gives cities greater power to remove fire rings in their area.
The proposaol is drawing fierce debate among local residents and officials.
Opponents claimed the restrictions would sacrifice a treasured Southern California tradition and is a thinly-veiled attempt to cut down on the number of working-class residents enjoying public beaches in wealthy Corona del Mar.
Supporters of the restrictions, meanwhile, strongly reject claims of class distinctions and argue that the pits generate hazardous pollution that hurts public health.
The role of Burke, who resigned his post on the California Coastal Commission after comparing beach bonfires to “carpet bombing” in Vietnam, remains unclear.
Huntington Beach activist and historian Chris Epting, who has been a vocal supporter of beach bonfires, says AQMD officials have told him that Burke, a political appointee, directed staff to pursue the ban.
Burke was quoted telling the Coastal Commission in early March that he was “100 percent certain” a beach bonfire ban would go through at AQMD.
“When you have a chairman like Burke who proclaims that there’s a ‘100 percent’ guarantee that it’s going to happen — when you start with it, everything else is corrupted by it,” said Epting.
Burke didn’t return a message seeking comment late Wednesday afternoon.
“This thing felt like a done deal from the beginning,” said Epting, adding that the agency’s “transparency has been fictional.”
AQMD initially provided thousands of emails to Voice of OC in early May.
Yet after reviewing the first 2,000 of the approximately 3,000 emails available as of Tuesday, it became clear the records didn’t show staff or board deliberations on the proposed bonfire restrictions. All of the records were either public comments, conversations with members of the public or a listing of news stories. A random sample of the remaining 1,000 or so simply showed more public comments.
(Click here to read the emails AQMD has provided so far. Viewing requires Firefox ESR for access on Apple Mac computers.)
Asked about the lack of internal discussion records, AQMD officials said they wouldn’t hand over any emails showing staff or board conversations about the proposed policy, claiming that they are “covered by the deliberative process exemption or the attorney-client privilege.”
Francke disagreed, saying that staff discussions of policy issues are generally public records.
“No, I don’t believe the deliberative process privilege would apply to those kinds of communications,” said Francke. Higher courts have applied that privilege mainly to conversations between the governor and his advisers, as well as an older case involving phone records of city council members, he said.
Francke also said AQMD should have already been communicating on its own about why records were being delayed and what was being withheld.
Yet it wasn’t until a phone call Tuesday at Voice of OC’s request that AQMD mentioned it wouldn’t provide staff discussions about policy.
Agency lawyers said AQMD doesn’t tell requesters why it’s withholding records — something clearly required by law.
“We don’t necessarily provide any follow-up in terms of what we’re not going to provide,” said John Olvera, principal deputy district counsel at South Coast AQMD.
“We don’t do that in the ordinary course,” District Counsel Barbara Baird added later.
The Public Records Act, however, states that agencies must “determine whether the request, in whole or in part, seeks copies of disclosable public records in the possession of the agency and shall promptly notify the person making the request of the determination and the reasons therefor.”
Despite robust legal budgets — AQMD’s hovers above $6 million annually — many public agencies and even judges often misinterpret the Public Records Act.
The latest example is Orange County’s efforts to charge more than $300,000 for a CD copy of its digital property maps.
The Sierra Club fought the county for free access to the GIS parcel maps since 2007 and lost in Orange County Superior Court as well as local appellate courts.
Yet this week, the state Supreme Court unanimously reversed those decisions and ruled against the county, declaring that despite their private sector appeal, the digital maps are public records and thus free to the public.
An important point to this week’s state Supreme Court decision, according to noted experts such as Francke, is that justices underscored the strength of the state’s public records laws, pointing to the guiding principle that the voters added to the California Constitution in 2004 with Proposition 59.
In this week’s ruling, Justice Goodwin Lieu wrote that statutes, court rulings or other forms of authority “shall be broadly construed if it furthers the people‘s right of access, and narrowly construed if it limits the right of access.”