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September, 2002

County Plays Games Over Access To Public Files
By Elena Belsky

As an investigative reporter, one usually pursues another person's story or cause with objectivity and detachment, providing a valuable, independent view. But every so often, a reporter will get hopelessly tangled in events, and become part of the story. At this point, the focus must necessarily switch to a more personal commentary and description - as with my experiences in the following story.

For many years, I have been going to the Marin Civic Center to research and review public documents, for myself and on behalf of several environmental organizations. Primarily I have done this as a form of community-minded activism.

Two years ago, after the Marin County Grand Jury's scathing report of the Environmental Health Services (EHS) division of the Community Development Agency, I began an intensive research project attempting to determine the status of on-site wastewater systems in Marin. As public and environmental health concerns, and prior evidence of governmental malfeasance have made me a long-time critic of EHS policy and handling of septic permits, I purposefully went in to the offices and informed the staff of my research plans for the next few months, as it would mean requesting many files for review.

During the first three weeks or so, the front desk staff and I worked well together, accommodating each other as much as possible, i.e. - I would call in ahead and request files, they would allow me to do my own copying to avoid taking up their time, I would not come in to the office on days they were understaffed, etc.

A few weeks after I began the investigation, a newly created "request form" was handed to me, with a new set of rules. It seems that someone higher up had been informed of my research, and wanted to document which files I was reviewing, as well as make it more difficult to access files. I was told to fill out the form and fax it in to the EHS, and they would call me when the file was to be made available - which was highly variable, from two to five working days. The same form and procedure eventually was imposed for all copies of public documents I requested. However, while in County offices, I noted that the majority of other people received documents, of all kinds, immediately upon request, and never was anyone else asked to use the form; apparently, it had been created just for me.

Censorship and Discrimination beginsÉ

I was also told that all public files I requested would be reviewed by higher level staff, prior to release, to remove any documents that were NOT considered by that person, to be in the public domain. This kind of policy is at odds with the California Public Records Act, which is quite inclusive as to what's available, including work product (the only exception possibly being personal notes of an government employee - but even that is accessible by subpoena). This particular public access issue got so intense, that legal letters flew back and forth for the withheld information, access to which was ultimately denied by County Counsel. However, for the average citizen, it would be difficult and expensive to file suit over this type of obstruction, yet it is very easy and inexpensive for the County to deny access, knowing the above situation. This proves a serious impediment to the average citizen, with great benefit and little trouble or liability for the County.

All of the above conditions and restrictions have continued to be imposed to this day. BUT (as I indicated above) NOT for any other person who requests a file!

I have been at the EHS counter, many times over the past two years, when other people, in rapid succession, have come in and requested and received files on the spot. Out of curiosity, I have actually had friends go into the EHS and request the same file I had, and have them receive the file immediately! This has gone on for two years, with varying degrees of poor attitude from some EHS staff (a few are consistently helpful to the extent that they are allowed).

Very recently, I have heard from two other people who represent environmental groups, that they have lately been required to use the form, as well. It often seems that these constraining rules and forms are imposed especially for "problem" and controversial cases, and specifically targeted toward environmental advocates.

I had considered all of the above "special" treatment as a somewhat heightened version of the political games I had observed in the past, until a recent event took it to a new level.

Covering Their TracksÉ

I was researching a particularly controversial project in which the County Supervisors had intervened (the Hedlund development directly on the Lagunitas Creek in San Geronimo Valley), and ran afoul of the EHS once again. The project site is very constrained, as Lagunitas creek's top of bank is only 8 feet from the proposed home, with an additional perennial tributary directly to the west, adjacent to the proposed septic.

Protecting our streams is essential to the survival of our beloved, endangered Coho salmon and Steelhead trout. There are provisions in the Countywide General Plan for a Stream Conservation Area Policy detailing setbacks and how to deal with development near creeks, and Public and Environmental Health ordinances that mandate certain setbacks for septic system components from waterways.

I found out that the EHS had already issued an alternative septic system construction permit in May of 2001, and wanted to see the file and septic plans that had been submitted. Being familiar with the parcel from my creek work, and a survey of that area years ago, I could not imagine how a large septic system (serving a 4 bedroom house) could be properly or safely sited. Nor could a number of other local residents who approached me with similar concerns.

I placed a call to the EHS staffer assigned to the Hedlund case, and arranged to view the file later that afternoon. When I arrived, I was provided with the file, and began reviewing the materials, laying out the blueprints and text documents from the folder. I took out my digital camera to copy the text documents (trying to avoid the usual delay in getting copies made), when one of the front desk staff came over hurriedly, snatched all of the documents off the table, tucked them under her arm and left the area.

She refused to return the file. Nor would she allow copies to be requested or made. I had literally 4 minutes of review time. I was quite shocked as there was no warning, and no information provided as to what rule I had "violated" to warrant this type of rude behavior. All that was said under questioning was "NO photographs" and I was directed to a page of text or codes posted in a corner of the office. (While there are legitimate concerns for duplicating engineers plans due to copyright infringement problems, reduced sets of plans and copies are commonly allowed to be distributed during the public review process. Text does not have any such restrictions.)

I was not asked what I was doing, or requested to put away the camera - just immediately refused access to the file. Subsequently, I requested the file in writing, as well as copies from the file - guessing at the number of text pages I needed from a report! The next day, in the morning, I was told the file was out of the office, then when I went in to request a copy of the permit information from the computer (was refused and handed another form to fill out), I was told that the file in question was on Phil Smith's desk...and still not available for public access! I have not seen the septic file since the initial incident. The written request for the copies was finally filledÉ5 working days later.

It turns out that, while I never did get to see the septic blueprints to measure distances to the creek for setbacks, our concerns hit the bullseye, were entirely correct, and in response, Phil Smith, the Director of the EHS, has recently suspended the Hedlund septic permit pending further review.

Over the years, I have felt that the lack of public access to the septic files has been suspect, but until this last blatant incident, I had hoped I was wrong about the secretive and closed aspect of the EHS department. It is unfortunate that the internal workings of a local government division is so inaccessible to the public it purportedly serves and protects, as to engender suspicion and distrust of those same constituents. I recently wrote a detailed letter to Alex Hinds, the Community Development Director, outlining the past history of EHS and my experiences that I have shared with you. We shall await his response together.

In ConclusionÉ

Public participation and citizen review in government activities is our right and our responsibility as concerned, aware citizens. My personal choice has always been to try and form partnerships and build bridges with the various agencies, as it's definitely more pleasant and productive for all concerned. On the very rare occasion, I have encountered such resistance as to make cooperative and good relations impossible; most of these have occurred at the County of Marin.

In these cases, I have been forced to the conclusion that my access to key information on certain projects was deliberately delayed or prevented, and that the staff who produce these records for the public were under pressure to be obstacles to access.

This behavior by the County strikes a at deep, heartfelt belief in my life: citizen review of the documents used and produced by governmental officials, and citizen participation in governmental decision-making are cornerstones of US democracy. Public access to public files is one of those "inalienable rights" we possess and we should never tolerate interference or obstruction of that right.

These inappropriate restrictions and outright obstruction to public access to public files is bad enough on its own, but is made worse by other recent County behaviors, such as condensing and bundling development approvals and using urgency actions in a way that limits foreknowledge by the public of important actions - too often, there is too little time for the public to review relevant documentation in order to meaningfully participate in the public process.

Marin County government has a lot to be ashamed of in recent years, and the forces at work continue to act with impunity. If we give up our democratic rights to public review and citizen participation in governmental decision making, that is our shame.

 

 

 

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