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Multiple San Clemente City Council members are fighting back against a new city policy that they say turns public records into secret documents.
The policy has already had real world impacts at Friday night’s special meeting, where Councilwoman Laura Ferguson said she was denied the right to review public records to hire the next city manager.
“The city attorney and I went back-and-forth on this and he can’t cite any state law that requires me to sign a loyalty oath to access documents,” Ferguson said in a text to Voice of OC Friday evening. “So I will need to proceed without seeing the resumes.”
Ferguson, a former public information officer for the city who ran on a platform of transparency, often finds herself at odds with city management over her willingness to give city records to residents.
Councilman Steven Knoblock, a newcomer to the city council, said he still hasn’t decided whether or not to sign onto the new system.
“It’s not necessary. City government should be open and transparent to the greatest degree possible, we’re not talking about state secrets here,” Knoblock said in a phone call with Voice of OC earlier this month. “Clearly the law provides for confidentiality in certain aspects…but the items that sparked the issue in the first place was a matter that was clearly not confidential.”
The new policy approved this past November gave city staff the green light to install new software that forces council members to sign a waiver promising not to release confidential city records following the censure of Ferguson for publicly criticizing city management and releasing public records to the public.
The software tracks who accesses what records, and the staff report on the software directly states that council members are not allowed to release records deemed confidential without the approval of the full council.
City councils routinely discuss labor union negotiations, ongoing lawsuits and employee contract negotiations in closed session, one of the few places in local government that lacks any public oversight under open meeting laws.
The council approved the new software in a 3-1 vote after ten minutes of discussion, with Ferguson serving as the single vote against the measure.
Earlier this month, city attorney Scott Smith released a statement on the new software to Voice of OC, stating its purpose was to “provide the Councilmembers with faster and more secure access to the City’s sensitive records,” and that city staff would decide where records were placed.
According to Smith’s email, the only records placed in the system will be closed session records not for public review. But to release any document on the system to the public, council members would have to receive staff approval first, asking for individual reviews of each record.
Ferguson has released multiple closed session discussions and reports to the public without a vote from the council, saying she believed the records in question were not protected under the California Public Records Act or the Brown Act, California’s chief transparency laws.
One record Ferguson released was a city-commissioned poll examining whether or not voters would approve a ballot measure instituting a new tax to help protect the city’s coast that staff claimed was confidential.
At the meeting where the new software was approved, Ferguson asked the council and city staff to tell her what records she had illegally released. No one answered the question, saying it would be inappropriate to discuss publicly.
Ferguson has said she will not use the new system, and that she will only abide by the specific restrictions under transparency laws. She also cited a portion of government code that requires any records available to council members be turned over to the entire council, not specific members.
“The law is the law, and I’m entitled to documents,” Ferguson said at the meeting where the policy was approved. “I will not have my service be thwarted by the city’s inability to deliver to me the documents to provide the people transparency and let them know their business, it’s their right to know.”
Smith and interim city manager Erik Sund did not return requests for comment attempting to clarify how records would be handled for council members who chose not to use the system.
Councilman Chris Duncan, the other new arrival at the dais, said he was the first one to sign up for the new system.
“While I share Councilmember Ferguson’s interest in making sure that the public has an understanding of what their city government is doing and the reasons behind it, that must be tempered by a realistic perspective that certain information must and should be kept confidential to protect the city,” Duncan said. “I’m happy to be part of that system and follow the rules that are part of that process.”
Mayor Kathy Ward and Councilman Gene James both voted in support of the measure, with Ward saying it was necessary based on Ferguson’s past actions and that it wouldn’t stop any council member from obtaining documents as long as they signed. Neither return requests for comment on Thursday.
The council next meets on Tuesday night, where they’ll be discussing the appointment of a new city manager and several potential lawsuits against the city.
Noah Biesiada is a Voice of OC Reporting Fellow. Contact him at firstname.lastname@example.org or on Twitter @NBiesiada.