Former City Councilwoman Donna Frye has been fighting for a long time to force more open government in San Diego, and on Tuesday her battle hit another roadblock. Frye's open-government ballot measure was tabled by the City Council indefinitely.
Frye served a brief stint as director of open government under former Mayor Bob Filner, but later said she wasn't even allowed to talk to the press during her time in Filner's office. She has since been working as president of the open government advocacy group Californians Aware, where she helped lead a charge to put an open-government ballot measure before San Diego voters this June.
The measure would make changes to San Diego's City Charter language to require communication on all media, including emails and text messages, that concerns city business to be open to public records requests. This is a requirement under the California Public Records Act, but Frye says the city charter is out of date and currently only requires that "books, records and accounts" be open.
The open-government measure also says if the city denies access to a public record, it must provide a written justification explaining what harm would result from that disclosure. It also requires any new city rule or policy that limits access to records or meetings be based on "factual evidence demonstrating the need for that rule or policy," Frye said.
Although Frye's measure passed the city's Committee on Economic Development and Intergovernmental Relations, at that meeting City Attorney Jan Goldsmith raised concerns that some parts of the measure could expose the city to more lawsuits.
The measure was changed to address those concerns. But a few hours before the Feb. 10, 2014 City Council meeting where the measure would be heard, Goldsmith sent another memo to city council members with new concerns. The council moved their vote on the measure to Tuesday to consider these concerns. That was the last day the council could approve the measure for the June ballot.
Frye said she does not understand Goldsmith's concerns with the measure.
"I don't have the ability to get in the city attorney's mind," she said. "The overarching theme is that the measure would invite litigation. When have a clear process set up, it's actually less likely to invite litigation."
The City Attorney's Office did not respond to a request for comment.
At Tuesday's meeting, City Councilwoman Sherri Lightner raised a new objection that the measure might overlap or conflict with a state proposition already on the June ballot. That measure, Proposition 42, would require all local agencies to comply with the California Public Records Act and the Ralph M. Brown Act, a requirement that government meetings be open to the public. The proposition is meant to make local governments pay the costs required to keep records and meetings open, instead of putting those costs in the state budget, as they have been in the past.
"The most prudent thing to do would be to wait until state initiative passes and then harmonize new city policies with state law," Lightner said Tuesday.
She proposed tabling the measure until after June, when the City Attorney's Office and city staff can review whether there's overlapping language.
Terry Francke, the executive director of Californians Aware, told Lightner and the council that the San Diego open government measure has "no substantive overlap whatsoever" with Proposition 42.
City Councilman David Alvarez, who brought the measure to the council, said he did not want to delay.
"This wait until June to see what the state does is not an option for me," he said.
On Wednesday, Lightner's spokeswoman said staff brought the potential overlap to Lightner's attention, but didn't say when that happened.
Lightner also said during Tuesday's meeting she thought the open-government measure should be an ordinance instead of a change to the city charter.
But Frye said she wants a charter change because that's harder to undo.
"A city council policy or ordinance can be waived," she said. "That does not provide the public with any certainty that their right of access will be protected. Given what we've gone through over many years, the issue of public access to documents, the public's right to know, has been an ongoing serious problem with the city."
City Councilwoman Marti Emerald also spoke strongly in support of Frye's measure and said the council should not put it off.
"San Diego needs to take a stand," she said. "If no one else will, we need to lead the charge on a public issue that is of vital importance to the state of California."
City Councilman Mark Kersey, who has proposed an open data policy that Frye said would work in conjunction with her measure, agreed with Lightner that Frye's measure should be delayed.
"No one's a bigger advocate of open data than me," he said. "I support Councilwoman Lightner's motion because there are a lot of very good goals in this proposal, but there are also key questions that Councilwoman Lightner raised."
The council voted 7-2 for Lightner's motion to table the measure. No date was set for when city staff will bring the measure back to the Committee on Economic Development and Intergovernmental Relations.
"They're effectively taking no action and sending it off into the weeds," Frye said.
Frye says she's not sure what her next steps will be, but promises to continue to work to add more protection to the public's access to government.
