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!
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