From Peter Martin’s office:
An Open Letter to the Arcata City Council
From: Peter E. Martin, A Law Corporation, Attorney for Marc Delany
Re: Public Records Act Request
Date: August 31, 2011
Dear Council members:
Recently, Marc Delany submitted a public records act request to the City in which he sought the total amount of fees paid to every attorney hired by the City over the past few years. The City refused to provide the information relating to fees paid to private attorneys, claiming it was subject to the attorney-client privilege. The cases cited by the city in support of its position actually stand for the opposite proposition, that is, that the amount of attorney’s fees paid is not privileged under California law. Information about fees is privileged only if it would disclose tactics or strategy. A request for a total does not disclose tactics or strategy.
Marc Delany encourages each and every council member to conduct the city’s business in and open, transparent manner consistent with this country’s highest ideals, as does Arcata Local Ordinance 1339.
The purpose of the public records act is to let the public know what its public servants are doing. Mr. Delany believes that the City has mismanaged its litigation and has incurred tens of thousands in unnecessary fees. The City can prove him wrong, if he is, by releasing the total amount of fees paid. The City is acting like it has something to hide.
This is to give the City one last opportunity to obey the law before Mr. Delany files suit to obtain these records.
Do the right thing,
Peter Martin
8 comments
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September 2, 2011 at 9:07 am
Anonymous
It would have been nice if Peter Martin would have put in a little effort when he was employed as a Deputy DA!
An example of why people feel the way they do about lawyers.
September 2, 2011 at 10:57 am
Joe Blow
Just another fine (local) example of Democratic Tyranny at work. Keep “looking forward.”
September 2, 2011 at 1:09 pm
arcatawitch
Peter Martin and his interestingly unusual clients evidently love suing the City of Arcata… please leave our City alone and go back under your rock, please oh please.
September 2, 2011 at 1:58 pm
tra
Arcatawitch,
I haven’t seen an argument as to why the amount of money the City of Arcata pays to its lawyers should be secret in the first place.
Unless there’s some compelling and legally-defensible reason why the City should not release the information about the legal fees, they should just go ahead and release it.
September 2, 2011 at 3:34 pm
Not A Native
Whats this really about?? We’re there particular lawsuits that were controversial? Only thing I recall was defending the Youth Protection Act(limiting teen military recruitment).
Since city lawyers work hourly, the only info here would be their hourly rates. Aren’t there easier ways for a lawyer to find out how much his competitors have gotten paid for particular kinds of work?
September 3, 2011 at 7:13 am
Jane
Doesn’t his take on things make an assumption that there is a correlation between winning or losing and the total cost? How can that be if strategies and tactics ARE NOT disclosed? People pay millions for a case and still can lose the battle.
September 3, 2011 at 8:50 am
Mitch
What tra said.
The amount of money a city pays its lawyers should be public information. Period.
I wonder how much the lawyers will make from Arcata defending the position that Arcata need not reveal how much it pays them.
October 26, 2011 at 11:15 pm
Marc Delany
Do you know your rights?
I forgot .. and by “divine rights”
Know the law? Or are you a government official scared of light? Conduct the public’s business with the highest degree of integrity. I was a government official taught to never lie… would be great here in Arcata.
Below is Ca State constitution, passed by 83.4% of voters… that excludes those in government. Also, be a mench and use you real name
Marc Delany
Arcata, CA
Approval by the people
Proposition 59 was approved by the State Legislature as Senate Constitutional Amendment 1 of the 2003–2004 Regular Session(Resolution Chapter 1, Statutes of 2004). It was adopted by the California State Senate by a vote of 34-0 and the State Assembly by 78-0.[1]It was then put to voters as a ballot proposition on 2 November 2004. It passed with 9,334,852 (83.4%) votes in favor and 1,870,146 (16.6%) against.
[edit]Text
The amendment adds to the state constitution Article I, Section 3 (b). Section 3 (a) is the provision of the Declaration of Rights that guarantees the right to freedom of assembly, the right to petition the government and the right to instruct ones elected representatives. The amendment added to these rights the following provisions[2]:
(1) The people have the right of access to information concerning the conduct of the people’s business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.
(2) A statute, court rule, or other authority, including those in effect on the effective date of this subdivision, shall be broadly construed if it furthers the people’s right of access, and narrowly construed if it limits the right of access. A statute, court rule, or other authority adopted after the effective date of this subdivision that limits the right of access shall be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.
(3) Nothing in this subdivision supersedes or modifies the right of privacy guaranteed by Section 1 or affects the construction of any statute, court rule, or other authority to the extent that it protects that right to privacy, including any statutory procedures governing discovery or disclosure of information concerning the official performance or professional qualifications of a peace officer.
(4) Nothing in this subdivision supersedes or modifies any provision of this Constitution, including the guarantees that a person may not be deprived of life, liberty, or property without due process of law, or denied equal protection of the laws, as provided in Section 7.
(5) This subdivision does not repeal or nullify, expressly or by implication, any constitutional or statutory exception to the right of access to public records or meetings of public bodies that is in effect on the effective date of this subdivision, including, but not limited to, any statute protecting the confidentiality of law enforcement and prosecution records.
(6) Nothing in this subdivision repeals, nullifies, supersedes, or modifies protections for the confidentiality of proceedings and records of the Legislature, the Members of the Legislature, and its employees, committees, and caucuses provided by Section 7 of Article IV, state law, or legislative rules adopted in furtherance of those provisions; nor does it affect the scope of permitted discovery in judicial or administrative proceedings regarding deliberations of the Legislature, the Members of the Legislature, and its employees, committees, and caucuses.
[edit]Official summary
The official summary of Proposition 59 states that the purpose of the amendment is to
Provide right of public access to meetings of government bodies and writings of government officials.
Provide that statutes and rules furthering public access shall be broadly construed, or narrowly construed if limiting access.
Require future statutes and rules limiting access to contain findings justifying necessity of those limitations.
Preserve constitutional rights including rights of privacy, due process, equal protection; expressly preserves existing constitutional and statutory limitations restricting access to certain meetings and records of government bodies and officials, including law enforcement and prosecution records.
Exempts Legislature’s records and meetings.
The Legislative Analyst’s Estimate predicted only “potential minor annual state and local government costs to make additional information available to the public”.
[edit]Explanation of provisions
According to The Reporters Committee for Freedom of the Press the effects of the amendment may be summarized roughly as follows:[3]
First, it mandates access to government records and meetings of government bodies, and elevates this right of access to constitutional stature. Thus, all newly enacted state laws and administrative regulations must conform to the Amendment’s provisions. The effect is to leave no doubt as to the importance of access to the people of California, and consequently to render ineffective the assertion, often made by government agencies to defeat access, that access in a particular case serves no public purpose. Similarly, it strengthens the case for access in cases where, under existing statutory exemptions, records can be withheld when the public’s interest in non-disclosure clearly outweighs the public’s interest in disclosure.[4] This is so because most interests in non-disclosure are not constitutionally based and thus will be of significantly less importance when weighed against a now-constitutional right of access.
Second, unlike statutory rights of access under California’s Public Records Act and The Ralph M. Brown Act, the Sunshine Amendment applies not just to the executive branch of government but to the judicial and legislative branches as well. While the Amendment expressly reserves existing protections for proceedings and records of the Legislature and rules adopted in furtherance of those protections, and maintains all other preexisting constitutional and statutory exemptions to the right of access to public records and meetings, these branches of government are now within the mantle of the public’s constitutional right of access. In practice, what new rights of access this may bring remains to be determined, but arguably the right would include access to records and meetings of both the Legislature and the Judiciary not currently exempt from disclosure under existing authority.
Third, the Sunshine Amendment requires that court rules, statutes, or other authority be construed broadly when they further the public’s right of access, and narrowly when they limit that right.[5]
Fourth, when public bodies adopt new laws, court rules, or other authority that limit the right of access, they must now make express findings demonstrating the interest purportedly protected and the need for protecting that interest. Thus, the adoption of agency rules and regulations, for example, intended to impede public access will no longer be allowed on the whim of the agency’s governing body but will require actual on-the-record findings demonstrating the need for secrecy and demonstrating how the exemption will achieve that need—findings similar to that required by a court before sealing a court record or closing a court proceeding.
Lastly, the Sunshine Amendment leaves intact the right of privacy guaranteed by the constitution by clarifying that it does not supersede or modify the existing constitutional right of privacy. And, disconcerting for proponents of access, the Amendment expressly does not affect existing statutory protections afforded peace officers over information concerning their official performance or professional qualifications.[6]
[edit]See also
California Public Records Act