Wednesday, June 3, 2009

City of Berkeley Violates the Public Records Act

Because of the growing frustration with the City of Berkeley's unwillingness and inability to enforce basic blight issues in South Berkeley, we submitted on May 6, 2009 several Public Record Act Requests to the City Manager, Phil Kamlarz. The purpose of the request was to better understand what, if anything, has been done by the City to investigate complaints about blight in south Berkeley. The substantive elements of the requests are as follows:

Pursuant to California Government Code §6251 I hereby request a copy of all communications and understandings between the City of Berkeley and the property owner and/or business operator of Motor City Auto Repair, 3058 Shattuck Avenue, Berkeley Ca from June 13, 2008 to present regarding any and all code, environmental health and blight enforcement issues. Any personal information not able to be disclosed under the Public Records Act should be redacted in a manner such that all other information is provided.

Pursuant to California Government Code §6251 I hereby request a copy of all communications and understandings between the City of Berkeley City Manager's Office, Planning and Development (Code Enforcement), Health and Human Services (Environmental Health Services), City Attorney, Public Works, City Clerk and City Council, and all other relevant City Departments, from January 1, 2000 to present regarding City of Berkeley policies, procedures, guidelines, regulations, legal opinions, and/or Berkeley City Council directives defining, collectively or individually, how, when and under what circumstances the City of Berkeley will or will not enforce the removal of graffiti on private property. Any personal information not able to be disclosed under the Public Records Act should be redacted in a manner such that all other information is provided.

On May 8, 2009 we got a response from the City Manager, Phil Kamlarz, that the City of Berkeley would require an extension to June 1, 2009, pursuant to Government Code Section 6253, to provide the requested documents. As of June 3, 2009, we have not heard hide nor hair from the City about the provision of the required documents. The City is now in violation of the Public Records Act by not responding within the mandated time frames.

The Public Records Act is an important tool for citizens to ensure transparency in local government actions or, in this case, inaction.

The Public Records Act is designed to give the public access to information in possession of public agencies: public records are open to inspection at all times during the office hours of the…agency and every person has a right to inspect any public record, except as . . . provided, [and to receive] an exact copy of an identifiable record unless impracticable. (§ 6253). Specific exceptions to disclosure are listed in sections 6253.2, 6253.5, 6253.6, 6254, 6254.1-6254.22, 6255, 6267, 6268, 6276.02-6276.48; to ensure maximum access, they are read narrowly. The agency always bears the burden of justifying nondisclosure, and any reasonably segregable portion . . . shall be available for inspection…after deletion of the portions which are exempt. (§ 6253(a))

An agency has 10 days to decide if copies will be provided. In unusual cases (request is voluminous, seeks records held off-site, OR requires consultation with other agencies), the agency may, upon written notice to the requesters, give itself an additional 14 days to respond. (§ 6253(c)) These time periods may not be used solely to delay access to the records. (§ 6253(d)

The agency must justify the withholding of any record by demonstrating that the record is exempt or that the public interest in confidentiality outweighs the public interest in disclosure. (§ 6255)

The City Manager, Phil Kamlarz, asserted the right to extend the response time by an additional 14 days to June 1, 2009 because the documents you request require the City to search and collect records from several different City Departments. While we can appreciate that the City must coordinate with several different City Departments that in no way constitutes an unusual case as the records are not voluminous, held off-site or require consultation with other agencies. The records are all held by the City of Berkeley and are contained primarily by three entities: the City Manager’s Office, Code Enforcement, and Public Health. This rationale for a delay was a stretch. We did not object to this delay based on the commitment that the City would provide the documents by June 1, 2009. Not surprisingly, the City has failed to meet its obligations.

The City’s unwillingness and inability to comply with the Public Records Act and to enforce blight complaints in South Berkeley is a slap in the face to all residents of South Berkeley. Perhaps a writ of mandamus with the courts may be in order to force the City’s hand and actually get them to do their job.


Chris said...

It really does take someone getting shot in broad daylight to have blight addressed in West Berkeley.

After the shootings in May the city of Berkeley actually went out and (GASP) checked for broken street lamps and blighted property between Dwight Way/University and San Pablo/6th Street. Here is the text from their report:

A well-attended community meeting was held on May 26, 2009 to address recent violent incidents in the
West Berkeley neighborhood. The actions described below are a direct result of community concerns
raised at the meeting but do not necessarily include the wide range of issues discussed or other future
actions to be taken.
Staff returned from the meeting and took immediate action to mobilize city staff and improve
environmental conditions as one element of a plan to create a safer neighborhood. A zone was
designated from University Ave to Dwight Way and from San Pablo to 6th Street. The following “nonpolice”
actions were taken with a status report on progress:
1. Street Lighting:
Electrical staff inspected the area and a total of 33 street light outages were identified. 23 lights
have been replaced and the remainder will be completed by Wednesday, June 10.
2. Tree Pruning:
Forestry staff inspected the area for street tree pruning - specifically foliage that could be
blocking street lights from adequate night light coverage on the street and sidewalk. Forestry
crews started pruning 10th Street on Monday, June 8 and will continue throughout the area for the
next month. All trees will be pruned with the exception of Sycamores that require pruning in
3. Problem Properties Identification:
Neighborhood Services staff conducted an area inspection that identified numerous properties in
the West Berkeley zone below San Pablo from Gilman to Ashby. Violations have been identified
including inoperable vehicles, graffiti, blight, rodent harborage, etc. Inspections by various city
departments are being conducted and corrective measures identified.

Chris said...

These all seem like basic things that should be regularly addressed in communities with drug and crime problems.

I guess our 1.25% in property taxes don't go as far as other parts of Berkeley.

Unless someone gets shot...

concerned said...

Some one needs to sponsor an amendment to the city code that would require city services to be allocated based on need. Meaning that if a certain neighborhood has 80% of the crime in the city, it should have 80% of the police etc.... until that happens south and west berkeley will remain blighted and unsafe.

rosie said...

very interesting to read ....I so enjoyed my visit to your blog.thanks for giving this kind of blogs,thanks..

Public Records