4c) Discussion and Possible Action Including Introduction and Waive First Reading of an Ordinance Repealing Ordinance No. 4507, Which Added Chapter 5.190 to the Mendocino County Code Regarding Fees for Requests for County Records
(Sponsors: Supervisor Mulheren and Supervisor Williams)
On behalf of the First Amendment Coalition, a nonprofit organization dedicated to advancing free speech, a free press, and a more open and accountable government, I write in support of repeal of Ordinance No. 4507, which makes government less transparent by imposing fees that can run into thousands of dollars for locating, reviewing, or redacting records requests by members of the public.
For further information on why this ordinance must be repealed, please see the attached April 27, 2023, letter by the First Amendment Coalition and American Civil Liberties Union of Northern California, which represent a coalition of organizations negatively affected by the excessive fees imposed by the county under this ordinance.
Thank you for your consideration.
Ginny LaRoe
Advocacy Director
First Amendment Coalition
FAC@firstamendmentcoalition.org
Ordinance 4507 is an affront to public transparency and good government. Please immediately rescind it, along with fee requests issued over the last year, and expedite requests that have been in limbo because of unlawful assessments.
I strongly urge the Board to repeal Ordinance 4507. Charging exorbitant fees for the public to access information necessary to understand the workings of our public officials is a blatant attack on public access, the freedom of the press and the basis of our democracy. While there is no perfect solution to allow access while avoiding abuse, any representational government must choose access and transparency. The cost to our County of losing accountability and respectability has been embarrassing.
BOS, please overturn this ill-advised ordinance many believe unlawful. This hurts low-income folks like me by making it difficult to pay for information even though we pay taxes like everyone else. Thank you for your thoughtful consideration.
This was an appalling decision that impairs our right to public records. It created another layer of impedence to transparency from an already problematic lack of access to information, Please serve your constituents better and in good faith serving and protecting a democratic process. This decision did neither. Repeal it. And figure out how to reimburse all fees collected since you enacted this awful ordinance.
I support repealing this ill-advised ordinance that achieves the opposite of governmental transparency and has made Mendocino County a laughingstock of governance. The ordinance makes reporting almost impossible for news outlets, chills citizen participation, creates a barrier to anyone not wealthy enough to pay extravagant fees, and is likely illegal to boot. At base, it's undemocratic. Please end this embarrassing charade today.
I support rescinding Ordinance 4507 - IMMEDIATELY - including the fee requests you have issued over the last year. Requests that have been in limbo because of these unlawful assessments need to be expedited.
Public records are just that: public. They belong to the people. You are our employees and representatives and you all need to start working on behalf of "we the people".
PS- in regards to your comment Mr. Williams, if I was able to attend in person or on Zoom I would do so. Please consider this letter the best that I can do at this time. Many folks are working at 9am on a Tuesday morning. Many folks work jobs that are hourly: if we don't work, we don't get paid.
Sincerely,
Janice Hawthorne Timm
Russian River Estates, District 1
I would urge the Board to repeal Ordinance 4507. Charging exorbitant fees to prevent the public from accessing information necessary to understand the workings of our public officials is a blatant attack on the freedom of the press and the basis of our democracy. While it may be true the right to request information can be abused, that is a price that must be paid in order to allow for governmental transparency. When there is no perfect solution to allow access to information while avoiding abuse of procedures, in the conflict between the two a representational government must choose access and transparency. The cost of losing accountability will be much higher than any administrative cost bourne by such freedoms. Please repeal Ordinance 4507 charging exorbitant fees for access to county records. Thank you, Bryant Burkhardt, Fort Bragg.
To Supervisors,
I support the letter that you have received from the below mentioned organizations. I am also urging you to repeal Ordinance No. 4507.
I understand that Supervisor John Haschak has stated his wishes to repeal the ordinance and he would stand to be joined by Supervisors Maureen Mulheren and Ted Williams who co-sponsor the item for Tuesday’s meeting. I applaud these three supervisors that are ready to repeal the ordinance.
The First Amendment Coalition, American Civil Liberties Union, Society of Professional Journalists, The Mendocino Voice and the Willits Environmental Center stand poised to sue if the board votes to uphold their ordinance. The County has no money to deal with a lawsuit.
These organizations advocate for and depend on access to public records to fulfill their missions. In particular, The Mendocino Voice and Willits Environmental Center have long fought for transparency in Mendocino County. The Ordinance impairs this important work by imposing fees that can run into the thousands of dollars for locating, reviewing, or redacting records requested by members of the public.
The California Supreme Court recently confirmed that the California Public Records Act (“CPRA”) does not authorize fees for locating, reviewing, and redacting records, because such fees create unjustified financial barriers to transparency rights guaranteed by the CPRA and California Constitution. (National Lawyers Guild v. City of Hayward (2020) 9 Cal.5th 488, 493- 494, 507-508; see also Gov. Code, §§ 7922.530, 7922.575.) The County knows this is the law and has explicitly stated on the record that the CPRA “contains no mechanism for the recovery of the cost of staff time spent searching for and providing public records.” And yet, the Ordinance purports to authorize charging up to $150 per hour for responding to record requests. No law authorizes a county to impose the fees for locating, reviewing, or redacting public records specified in the Ordinance. Although in some circumstances a county may “increase or decrease” a fee “that is otherwise authorized to be levied by another provision of law” (Gov. Code, § 54985), the fees imposed by the Ordinance are not “otherwise authorized.” In addition, nothing in section 54985 can “be construed as granting any additional authority to levy any fee or charge which is not otherwise authorized by another provision of law nor shall its provisions be construed as granting authority to levy a new fee or charge when other provisions of law specifically prohibit the levy of a fee or charge.” (Gov.. Code, § 54987(a).) Because the CPRA prohibits the kind of fees imposed by the Ordinance, section 54985 cannot be construed to authorize them.
This ordinance also effects members of the public. They currently are subject to a financial barrier that deprives them of the transparency rights guaranteed by the CPRA and California Constitution. To the extent the County has assessed fees under the Ordinance for any CPRA requests that remain outstanding, the County should withdraw any such assessment and process those requests immediately without charging any fees for locating, reviewing, or redacting the requested records. The failure to withdraw any such assessments would also expose the County to litigation challenging the validity of those assessments regardless of whether the Ordinance is repealed.
The burden to have to wait for prolonged periods to get answers to PRR made it almost impossible to start with and adding these financial burdens makes it impossible and does not help with transparency.
So when do you the board of supervisors get to ignore the term "We The People" when it comes to understanding something you the elected board did wether one session ago or 5 years ago, if it is on the books it should be publicly accessable as it is to you the elected official. So if Q public can't make a records request without financial responsibility than you the elected official should face the same fees associated in your asking of staff to look up the same; and let's give each of you the gift budget of $100,000 dollars per fiscal year to do so as to not impede the flow of government. We the people shall have the right to hold you the county accountable and have fair and equal access to anything you the county have made part of county rule or action.
James Simpson
Willits 3rd District
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Dear Board Members:
On behalf of the First Amendment Coalition, a nonprofit organization dedicated to advancing free speech, a free press, and a more open and accountable government, I write in support of repeal of Ordinance No. 4507, which makes government less transparent by imposing fees that can run into thousands of dollars for locating, reviewing, or redacting records requests by members of the public.
For further information on why this ordinance must be repealed, please see the attached April 27, 2023, letter by the First Amendment Coalition and American Civil Liberties Union of Northern California, which represent a coalition of organizations negatively affected by the excessive fees imposed by the county under this ordinance.
Thank you for your consideration.
Ginny LaRoe
Advocacy Director
First Amendment Coalition
FAC@firstamendmentcoalition.org
Ordinance 4507 is an affront to public transparency and good government. Please immediately rescind it, along with fee requests issued over the last year, and expedite requests that have been in limbo because of unlawful assessments.
I strongly urge the Board to repeal Ordinance 4507. Charging exorbitant fees for the public to access information necessary to understand the workings of our public officials is a blatant attack on public access, the freedom of the press and the basis of our democracy. While there is no perfect solution to allow access while avoiding abuse, any representational government must choose access and transparency. The cost to our County of losing accountability and respectability has been embarrassing.
Please repeal Ordinance 4507 as soon as possible.
BOS, please overturn this ill-advised ordinance many believe unlawful. This hurts low-income folks like me by making it difficult to pay for information even though we pay taxes like everyone else. Thank you for your thoughtful consideration.
This was an appalling decision that impairs our right to public records. It created another layer of impedence to transparency from an already problematic lack of access to information, Please serve your constituents better and in good faith serving and protecting a democratic process. This decision did neither. Repeal it. And figure out how to reimburse all fees collected since you enacted this awful ordinance.
I support repealing this ill-advised ordinance that achieves the opposite of governmental transparency and has made Mendocino County a laughingstock of governance. The ordinance makes reporting almost impossible for news outlets, chills citizen participation, creates a barrier to anyone not wealthy enough to pay extravagant fees, and is likely illegal to boot. At base, it's undemocratic. Please end this embarrassing charade today.
I support rescinding Ordinance 4507 - IMMEDIATELY - including the fee requests you have issued over the last year. Requests that have been in limbo because of these unlawful assessments need to be expedited.
Public records are just that: public. They belong to the people. You are our employees and representatives and you all need to start working on behalf of "we the people".
PS- in regards to your comment Mr. Williams, if I was able to attend in person or on Zoom I would do so. Please consider this letter the best that I can do at this time. Many folks are working at 9am on a Tuesday morning. Many folks work jobs that are hourly: if we don't work, we don't get paid.
Sincerely,
Janice Hawthorne Timm
Russian River Estates, District 1
I would urge the Board to repeal Ordinance 4507. Charging exorbitant fees to prevent the public from accessing information necessary to understand the workings of our public officials is a blatant attack on the freedom of the press and the basis of our democracy. While it may be true the right to request information can be abused, that is a price that must be paid in order to allow for governmental transparency. When there is no perfect solution to allow access to information while avoiding abuse of procedures, in the conflict between the two a representational government must choose access and transparency. The cost of losing accountability will be much higher than any administrative cost bourne by such freedoms. Please repeal Ordinance 4507 charging exorbitant fees for access to county records. Thank you, Bryant Burkhardt, Fort Bragg.
To Supervisors,
I support the letter that you have received from the below mentioned organizations. I am also urging you to repeal Ordinance No. 4507.
I understand that Supervisor John Haschak has stated his wishes to repeal the ordinance and he would stand to be joined by Supervisors Maureen Mulheren and Ted Williams who co-sponsor the item for Tuesday’s meeting. I applaud these three supervisors that are ready to repeal the ordinance.
The First Amendment Coalition, American Civil Liberties Union, Society of Professional Journalists, The Mendocino Voice and the Willits Environmental Center stand poised to sue if the board votes to uphold their ordinance. The County has no money to deal with a lawsuit.
These organizations advocate for and depend on access to public records to fulfill their missions. In particular, The Mendocino Voice and Willits Environmental Center have long fought for transparency in Mendocino County. The Ordinance impairs this important work by imposing fees that can run into the thousands of dollars for locating, reviewing, or redacting records requested by members of the public.
The California Supreme Court recently confirmed that the California Public Records Act (“CPRA”) does not authorize fees for locating, reviewing, and redacting records, because such fees create unjustified financial barriers to transparency rights guaranteed by the CPRA and California Constitution. (National Lawyers Guild v. City of Hayward (2020) 9 Cal.5th 488, 493- 494, 507-508; see also Gov. Code, §§ 7922.530, 7922.575.) The County knows this is the law and has explicitly stated on the record that the CPRA “contains no mechanism for the recovery of the cost of staff time spent searching for and providing public records.” And yet, the Ordinance purports to authorize charging up to $150 per hour for responding to record requests. No law authorizes a county to impose the fees for locating, reviewing, or redacting public records specified in the Ordinance. Although in some circumstances a county may “increase or decrease” a fee “that is otherwise authorized to be levied by another provision of law” (Gov. Code, § 54985), the fees imposed by the Ordinance are not “otherwise authorized.” In addition, nothing in section 54985 can “be construed as granting any additional authority to levy any fee or charge which is not otherwise authorized by another provision of law nor shall its provisions be construed as granting authority to levy a new fee or charge when other provisions of law specifically prohibit the levy of a fee or charge.” (Gov.. Code, § 54987(a).) Because the CPRA prohibits the kind of fees imposed by the Ordinance, section 54985 cannot be construed to authorize them.
This ordinance also effects members of the public. They currently are subject to a financial barrier that deprives them of the transparency rights guaranteed by the CPRA and California Constitution. To the extent the County has assessed fees under the Ordinance for any CPRA requests that remain outstanding, the County should withdraw any such assessment and process those requests immediately without charging any fees for locating, reviewing, or redacting the requested records. The failure to withdraw any such assessments would also expose the County to litigation challenging the validity of those assessments regardless of whether the Ordinance is repealed.
The burden to have to wait for prolonged periods to get answers to PRR made it almost impossible to start with and adding these financial burdens makes it impossible and does not help with transparency.
Please repeal Ordinance No. 4507.
Sincerely, Annemarie Weibel
Albion 5th. District
Ordinance 4507 must be repealed.
Kate Anderson
District 4, Fort Bragg
So when do you the board of supervisors get to ignore the term "We The People" when it comes to understanding something you the elected board did wether one session ago or 5 years ago, if it is on the books it should be publicly accessable as it is to you the elected official. So if Q public can't make a records request without financial responsibility than you the elected official should face the same fees associated in your asking of staff to look up the same; and let's give each of you the gift budget of $100,000 dollars per fiscal year to do so as to not impede the flow of government. We the people shall have the right to hold you the county accountable and have fair and equal access to anything you the county have made part of county rule or action.
James Simpson
Willits 3rd District