The revised hotel “concept” was unveiled in early November 2011. At that point, there were repeated requests for the underlying business plan and related documents by the Faculty Association and other groups. Under the Act, a state agency has 10 days to respond and possibly another 14 days to produce the requested documents. Certain exemptions from the Act apply, but these exemptions relate mainly to such matters as law enforcement investigations, attorney-client privilege, and certain privacy issues such as medical records. None of those exemptions applied to the hotel. It might have been argued by the university that the plan at that point was preliminary but even that explanation would have been questionable:
Drafts are not inherently and entirely exempt. The word “draft,” even if accurately descriptive of a document, does not exempt it from disclosure. Government Code §6254, subd. (a) applies only to “preliminary” drafts, notes or memos “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.” Moreover, the exemption applies only if the record was created to inform or advise a particular administrative or executive decision. Also, the document must be of the kind customarily disposed of: “If preliminary materials are not customarily discarded or have not in fact been discarded as is customary they must be disclosed.” Citizens for A Better Environment v. Department of Food and Agriculture, 171 Cal. App. 3d 704 (1985) Finally, the exemption applies only to the “recommendatory opinion” of its author, making a judgment or offering advice as a conclusion based on a set of facts. Those facts, however, remain accessible to the public, and only the author’s conclusion is protected…
In fact, the business plan wasn’t made public until March 5, 2012, the final date allowed for getting the hotel on the Regents’ agenda for the March meeting. We know from that disclosure that the basic plan was finalized in January and signed off in early February, but, again, it was withheld until March 5. Moreover, there had to be preliminary versions before January, even as early as November, given the specificity with which the project was described at that point, e.g., 250 rooms, room price, etc.
What is interesting is that the university did not even invoke the problematic preliminary-draft exemption but simply acknowledged requests for Public Records within the 10-day period and then just said it was backed up with requests, i.e., it was too busy to provide a timely response. It did not respond to requests to come personally to Murphy Hall to inspect and copy the documents, an alternative provided by the California Public Records Act.
A guide to the Act and links to a summary by the Attorney General and the actual text is available through the LA Times at:
Why rehearse this past history? Plainly, the administration thought (incorrectly) that stonewalling and keeping the plan under wraps until the last minute would allow the project to sail smoothly through the Regents and avoid the controversy that arose over the original plan. Obviously, that approach did not work and there was a fiasco at the Regents as members questioned the hotel and its business plan and would not endorse it. The plan evidently is not on the agenda for reconsideration at the upcoming May meeting of the Regents. (Earlier posts on this blog provide details of what happened including audio of the Regents meeting.)
The moral is that stonewalling is not a good strategy for a public entity with a controversial project. It was a mistake for the university to assume that the issue was just one of one-way marketing of a plan. In fact, the first version of the plan was put forth as a fait accompli and provoked so much opposition that it had to be dropped. Why would it be assumed that another fait accompli, this time combined with non-disclosure of critical plan documents, would produce a happier result?
There are alternatives to the current hotel plan which would address the real goal – facilitating academic conferences and similar activities on campus. The Academic Senate and other groups can help find and develop such alternatives if the administration is willing to change strategies.
Chancellor Block, tear down this stone wall!