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HomeMy WebLinkAbout2006-02-07; City Council; 18440; Public Meetings & Development Application Process20 CITY OF CARLSBAD- AGENDA BILL AB# 18.440 MTG. 2/7/06 DEPT. CA TITLE: PUBLIC MEETINGS AND ACCESS TO DOCUMENTS AND DEVELOPMENT APPLICATION PROCESSING S-lofXa) <u 4J 0) •H 0)o QJ o§o g o ozD Oo RECOMMENDED ACTION: Discuss the item and accept the report. ITEM EXPLANATION: At its meeting of Tuesday, January 17, 2006, the Mayor asked the Council to place a matter on a future agenda inquiring into the lawfulness of the conduct of staff in discussing various ideas and proposals with various landowners and representatives over what is commonly referred to as the City Center Gateway Project. That report is attached to this Agenda Bill. Staff will also discuss the required processing of development applications under the relevant state laws and local ordinances. ENVIRONMENTAL REVIEW: None. FISCAL IMPACT: None. EXHIBITS: Report from staff. CONTACT: Ronald R. Ball, City Attorney, 760-434-2891 January 25, 2006 TO: Mayor and City Council FROM: City Attorney PUBLIC MEETINGS AND ACCESS TO DOCUMENTS At its meeting of Tuesday, January 17, 2006 the Mayor asked the Council to place a matter on a future agenda inquiring into the lawfulness of the conduct of staff in discussing various ideas and proposals with various landowners and representatives over what is commonly referred to as the City Center Gateway Project. This is basically the same area subject to a proposed initiative amending the General Plan to designate this area as coastal agricultural. Specifically, the Mayor inquired: "I would like to start a process of review as to what governs public and private meetings between staff and citizens and what practices are being followed. ... I would like to call the City Attorney to investigate the Federal, State and Local law which governs when information is exchanged in meetings between City staff and citizens must be made public and when it must be held private." The Ralph M. Brown Act There are two basic fields of law that govern a local entity's conduct of the people's business, both of which are found in the Government Code. The first is the Ralph M. Brown Act ("Brown Act" or "Act"), which applies to legislative bodies. These are usually multi-member bodies such as councils, boards, commissions and committees that are created for the purpose of reaching collaborative decisions through public discussion and debate. The act does not apply to an individual elected officer, an appointed officer or any individual employee. Although the Act has been amended many times over its history since it was enacted in 1954, the basic thrust of it remains the same, which is: "54950. In enacting this chapter, the Legislature finds and declares that the public commissions, boards and councils and the other public agencies in this State exist to aid in the conduct of the people's business. It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly. The people of this State do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created." Our office has written 94 memos interpreting the provisions of the Brown Act. The text and a booklet explaining its operation is given to every new City Council member and each of the 15 boards, commissions and committees established by the City Council which assists in conducting the people's business. The legislative body is, of course, the Council itself, every board or commission created by the Council and standing committee that it has created. Its most recent application will be to the newly created Carlsbad Tourism Business Improvement District, which is scheduled to begin its meetings in February 2006. The Council is both subject to and implements the provisions of the Brown Act. It can provide more but not less access to meetings. It has already done this under a section of the Municipal Code, which requires public access to meetings of all City boards, commissions and committees or any of their subcommittees. (CMC §2.08.110). The group that met to discuss the Centre City Gateway project consisted of City staff, representatives from Lennar, Joe Sterling, a City consultant, and at various times, representatives from Legoland, the Gemological Institute of America and Grand Pacific Resorts. This group was not appointed by the City Council and no Council members attended the meetings. It does not fit the definition of the "legislative body" and therefore the group was not subject to the Brown Act. California Public Records Act The second body of law that applies to documents (not meetings) containing information about the peoples' business is the California Public Records Act (CPRA). The CPRA was created in 1968 in order to allow the public to have access to many written documents containing information on the public's business. It is not unlimited access, however. The thrust of the CPRA is set forth in section 6250 which states: "In enacting this chapter, the Legislature, mindful of the right of individuals to privacy, finds and declares that access to information concerning the conduct of the people's business is a fundamental and necessary right of every person in this state." The right of the people to have access to information concerning the conduct of the people's business has now been placed in the California Constitution which resulted from the approval of Proposition 59 by the California voters at the general election of November 2, 2004 (Cal.Const.Art.I, §3). Therefore, although an employee meeting or a meeting with employees, appointed officials and third parties is not subject to the Brown Act, the documents produced therein may be subject to the CPRA. This requires a request for identifiable documents and an analysis of which documents may be subject to an exemption. It does not apply to ideas, concepts or other non-written information. The CPRA itself contains seven categories of documents and a host of exemptions. Any member of the public requesting a document must identify it with particularity and the public entity must decide whether or not it is exempted. If it is not, the item is produced and the member of the public may view the document or pay for the costs of reproduction. If it is exempted, the public entity must give its reasons why it is not producible. One section of the Act deals with preliminary drafts, notes or other written information not intended to be relied on in conducting the people's business at that point in time. Specifically, section 6254(a) states: "Preliminary drafts, notes, or interagency or intra-agency memoranda that are not retained by the public agency in the ordinary course of business, provided that the public interest in withholding those records clearly outweighs the public interest in disclosure." This means that when a request for a document is received a determination must be made as to whether or not that document is covered by this exemption and whether or not the public interest in nondisclosure clearly outweighs the public interest for disclosure. Our office performed that task in processing the request for documents regarding a number of meetings between City staff and landowners or their agents in the conceptual proposal discussed above. In that case the documents consisted of PowerPoint presentations that were essentially minutes of the meetings. They were compiled by Joe Sterling of Sterling Insights, an agent of the City. They were made available for attendees to view on his website. An express term of the Sterling Insights contract with the City stated that all documents produced during the performance of the contract are the property of the City, thus removing any doubt as to whether the records were in fact City documents. Each PowerPoint document was analyzed and ultimately determined to be disclosable under the CPRA. They have been processed and produced in the ordinary course of business the same as would be any other document subject to a CPRA request. Attached is a copy of our policy regarding the processing of public records. In regards to federal law, the Freedom of Information Act (FOIA), upon which the CPRA was modeled, gives the public the right of access to information held by federal agencies. Under FOIA, a person has a right to access any document, file or other record held by a federal governmental agency, unless the material is specifically exempted by the act. FOIA is sometimes used to interpret the CPRA when the CPRA is silent as to a particular subject. Required Processing Under The Law For Development Applications The staff will make a separate presentation on the procedures and requirements for development applications under the relevant statutes and local ordinances. Basically, the public becomes involved when a development application is formally applied for. At that point, any member of the public can make a request for that formal application and it begins the lengthy process leading to the required public hearings. Along the way, an environmental review is conducted and most substantial projects that requires an environmental impact report. The public then can become involved in the process which requires scoping meetings, public comments on the draft environmental impact report, public hearings before the Planning Commission and the City Council. Therefore, we conclude as follows: 1. The Ralph M. Brown Act does not apply to meetings between employees and third persons. 2. The Public Records Act may apply to documents that have been produced in those meetings but subject to a case-by-case analysis. RONALD R. BALL City Attorney rmh attachment CITY OF CARLSBAD 1200 Carlsbad Village Drive Carlsbad, CA 92008 ADMINISTRATIVE ORDER NO. 61 TO: ALL DEPARTMENTS FROM: CITY MANAGER SUBJECT: GUIDELINES FOR PUBLIC RECORDS REQUESTS PURPOSE; To establish guidelines for public records requests in the City of Carlsbad. DEFINITIONS; Department Head - City Department head or his or her designee. Person - Any person, corporation, partnership, firm or association. Public Records - Any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations, and any record created regardless of the manner in which the record has been stored. Public Records Act Request - Any request by a member of the public to inspect a public record. POLICY; The delivery of top-quality services is one of the key goals for the City of Carlsbad. In responding to public requests for records the City not only relies on the California Public Records Act (Government Code §6250), but also a strong commitment to efficient and accurate service. Any person may inspect public records of the City during the days and hours that the city office is regularly open for business in accordance with this Administrative Order. It is the policy of the City to comply with the California Public Records Act of 1968 (or its successor) and to respond appropriately to any request by a member of the public to inspect a public record. The City will provide the following assistance to members of the public so that they may make a focused and effective request: * Help the member of the public to identify records and information that are responsive to the request or to the purpose of the request, if stated by a member of the public. * Describe the information technology and physical location in which the records exist. * Provide suggestions for overcoming any practical basis for denying access to the records or information sought. It is the policy of the City to recover the cost of producing records to the extent allowed by law in response to Public Records Act requests. City Officials are authorized to and may furnish to any person copies of any official record of the City upon payment by such persons of the required fee. A limited number of free copies of any official record of the City may be provided in the following cases: * Any government agency or any public officer in his or her official capacity. * Any non-profit organization. * Any person engaged in the performance of work at the City's request where such copies of records are required to perform work. » Bona fide students or teachers engaged in research projects. * Most of the City's promotional materials. Determination of Disclosure Department Heads or their designees are responsible for determining whether a City record should be released in response to a Public Records Act request. If it is not clear whether a record should be disclosed, Department Heads should confer with the City Clerk or the City Attorney. Public records that are exempt from disclosure need not be produced. This includes records such as: * Preliminary drafts, notes or interdepartmental or intra-agency memoranda which are not retained in the ordinary course of business, provided that the public interest in withholding such record clearly outweighs the public interest in disclosure. * Records pertaining to pending litigation to which the City is a party. Note: Check •with the City Attorney's Office prior to filling a request. * Files that contain personnel or medical records. 7 * Records related to applications filed with any state agency responsible for the regulation or supervision of securities or financial institutions. » Geological or geophysical data relating to utility development. * Certain Police records. Note: Requests for Police Records should be referred to the Police Department. * Test questions, scoring keys and other examination data used in employee hiring. * Library circulation records. * Trade secrets or proprietary information, plans, or specifications submitted to the City by licensed design professionals, such as architects, engineers, etc. * Other unique exemptions contained in the California Public Records Act. Note: For a complete list of exemptions, see Government Code §6254. The following are not public records and are exempt from disclosure: * City initiatives, referendum and recall petitions. * Computer software developed by a City department, such as computer mapping systems, computer programs and computer graphics systems. If the department determines that the documents requested are not subject to disclosure, please contact your Major Service Area (MSA) designated City Attorney for assistance. Timing of Response The Public Records Act makes allowance for the fact that it may take time to determine whether a record should be disclosed. Department Heads must determine whether a record should be disclosed and respond within ten (10) calendar days after the Public Records Act request is received. Request for Extension In unusual circumstances, as specified below, the ten (10) calendar days' time limit may be extended by written notice to the person making the request. This notice will set forth the reasons for an extension and the date for the determination. In no event may the notice specify a date that would result in an extension for more than 14 additional calendar days. "Unusual circumstances" means: * The need to search for and collect the requested records from filed facilities or other establishments that are separate from the office or department processing the request; or « The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request; or » The need for consultation, which shall be conducted with all practicable speed, with another City department or agency having a substantial interest in the determination of the request. Production of Non-Paper Records An exact copy of the record requested shall be provided unless it is impracticable to do so. Computer data shall be provided in a form determined by the City. Usually, this will be in the form in which it is normally produced and utilized by City employees. If a request is made for a record that is stored in an electronic format, the City will provide the document electronically in compliance with Government Code §6253.9. Pricing of Copies Made in Response to Public Records Act Requests There is no charge for the mere inspection of a public record. However, any department producing copies of City documents will charge appropriate fees according to the fee schedule in effect at the tune the request is received. Any reasonably identifiable public record not exempt from disclosure will be provided upon payment of fees. ACTION; This Administrative Order shall become effective immediately. Date: ^ RAYMOND R. PAT City Manager CITY OF CARLSBAD JANE MOBALDI 1200 CARLSBAD VILLAGE DRIVE ASSISTANT CITY ATTORNEY CARLSBAD, CALIFORNIA 92008-1 989 (760) 434-2891 SUSANNE M. PARSONS FAX: (760) 434-8367 DEPUTY CITY ATTORNEY RONALD KEMP RANDEE HARLIB DEPUTY CITY ATTORNEY SECRETARY TO CITY ATTORNEYDEPUTY CITY ATTORNEY ARD|S SE|DEL LEGAL SECRETARY/PARALEGALSeptember 19, 2005 Ronald Alvarez 354 Oak Avenue Carlsbad, CA 92008 RE: CENTER CITY GATEWAY Dear Mr. Alvarez: Your undated letter addressed to the Mayor and City Council has been referred to me for response. Your letter asks the "Center City Gateway" project be removed from the agenda and that the Concerned Citizens of Carlsbad receive a clear response from each Council Member as to their position regarding the requested action. As of this time, the owner of the Center City Gateway property has not processed a formal application requiring consideration by the City Council at a public hearing. If and when the property owner does make an application for City action with regard to the property, the Carlsbad Municipal Code requires that the Planning Commission and/or the City Council, depending on the requested action, hear the matter at a noticed public hearing. Any Council action is required to be taken in an open public meeting. State law prohibits individual City Council Members from deciding on the matter until they have heard all of the evidence at an open public hearing. At such time as the hearing is held, you and other members of the Concerned Citizens of Carlsbad will have an opportunity to comment on the proposal and may review the staff report fully explaining the land owner's application and the requested action as well as staffs recommendations with regard thereto. I hope this provides you with a better understanding of the process. The City Council welcomes public input and exploration of all citizen concerns at the public hearings for a proposal once a formal application is filed with the City. If you or other members of the Concerned Citizens of Carlsbad would like to receive individual notice of hearings for any items concerning the "Center City Gateway" project, you can make a request of the City Clerk for notice at minimal expense. Thank you for your concern. truly yours, or? RONALD R. BALL City Attorney rmh c: Mayor and City Council l\