Late last year, a pair of contracts Santa Clara struck with spin maestro Sam Singer prompted a team of citizen watchdogs to probe the city’s procurement practices. But after several frustrated attempts to obtain documents for the investigation, the Santa Clara County Civil Grand Jury changed course.

If it couldn’t get enough data to review Santa Clara’s contracting, it would test the city’s compliance with the California Public Records Act.

Well, the result’s out and it’s not pretty.

“Through the CPRA, accessing public records from government agencies to monitor ‘the people’s business should be simple, responsive and without significant delays,” the civil grand jury wrote in a report released Tuesday. “However, the grand jury found that obtaining public records from the city is a time-consuming and difficult chore.”

What follows is a play-by-play of the Santa Clara’s transparency transgressions. (Which, for what it’s worth, the city disputes).

The grand jury began its investigation of Santa Clara’s contracting procedures by reviewing purchasing policies and, on Dec. 3, submitting a clear, concise CPRA request for information pertaining to the city and its Stadium Authority (the board governing Levi’s Stadium). Records requested:

• All general services bids, requests for qualifications for the city of Santa Clara and Santa Clara Stadium Authority within the last five years in the amount of $40,000 or more

• All general services contracts (excluding utility contracts) for the city of Santa Clara and Santa Clara Stadium Authority awarded within the last five years
• All invoices for general services contracts (excluding utility contract invoices) awarded in 2017 and 2018 for the city of Santa Clara and Santa Clara Stadium Authority

The city met the legally mandated 10-day deadline to respond to the CPRA but invoked a two-week extension without citing one of four permissible reasons allowed by the landmark transparency law. Whoever responded to the request also tried to excuse part of the delay by noting that City Hall would be closed for the week between Christmas and New Year’s—apparently failing to realize that, aside from federal holidays, the CPRA law doesn’t excuse compliance for an agency’s closure dates.

About a week before holiday break, jurors received a list from the city of 377 documents that appeared to be all of Santa Clara’s bid postings and requests for proposals and qualifications from the past five years. The city implored the grand jury to narrow its request to a specific project, claiming the workload cumbersome because various departments had to retrieve documents under its decentralized record-keeping system.

Grand jurors generously agreed to slim the scope of the request from five years to one and made an appointment to review available records in person on Christmas Eve. According to the report, staff seemed eager to please, furnishing several boxes of documents, but lacked the experience to really help.

“After searching through the boxes for two hours, the grand jury was unable to find the documents it was seeking,” per the report. “This was surprising since the grand jury had previously obtained copies of several of the requested documents from other sources.”

With the records-review a bust, the grand jury tried to interview current and former city employees and people from Sam Singer’s PR firm. But that turned out to be a dead-end, too. So the grand jury sought out legal help to figure out what to do next.

The next CPRA request went out on Feb. 6 this year. Grand jurors asked for three specific contracts and the purchasing process used to secure them. “These contracts were not obscure agreements but involved contractual dealings between the city and the Stadium Authority,” the grand jury report explains. Docs requested:

• Three specific contracts and their blue routing sheets
• Invoices and payments associated with the three contracts
• Requests for qualifications and requests for proposals associated with the procurement of the three specified contracts
• City and Stadium Authority purchasing policies and directives

The city’s comeback?

• On Feb. 11, 2019, the city responded stating, “The city will provide a further response to your request on or before Feb. 16, 2019”
• On Feb. 19, 2019, (two days beyond the 10-day CPRA response period), the city responded with an update stating the city was “... in the process of compiling responsive records to several items of your request and will be providing, at a minimum a partial response to 50 percent of your request by end of day tomorrow (Feb. 20, 2019)”
• On Feb, 21, 2019, the city provided some documents and stated that, pursuant to Government Code Section 6253(c), the city would respond further by March 1, 2019. The city also provided an email with a link to an electronic copy of some of the requested documents. (The link did not work)
• On Feb. 27, 2019, the city provided a working link to the electronic documents
• On March 1, 2019, the grand jury received the additional documents

But much of what jurors specifically requested never materialized. That’s when the team changed tack and made their accountability project about CPRA compliance.

The grand jury interviewed city staff to get a better sense of how it handles CPRA requests. What it learned was that Santa Clara spent more than a year discussing the need to centralize and streamline public records and modernize the whole process but had little to show for it. Except, that is, for hiring Dominique Davis on Jan. 31 as the designated public records manager.

Apparently, Santa Clara had been trying for a year-and-a-half to implement a computerized records process and even procured two software systems to carry it out: Lazerfiche and NextRequest. But, by the time the grand jury released its findings this week, neither had yet been activated.

The grand jury also found out that Davis fields about 40 to 50 records requests by using the 14-day extension “as a triage.” City Manager Deanna Santana blamed the delays on a staffing shortage. The City Council kicked in some help by authorizing a new part-time employee to help Davis, but the position remains unfilled.

The grand jury sent a third CPRA request on April 3, which asked for some missing payment documents and routing sheets that hadn’t been provided in prior queries and a copy of the public records log. Again, the city met the 10-day deadline to respond but violated the law by invoking a two-week extension for a legally dubious reason: that the request was “voluminous.” (It was not.)

Ultimately, the grand jury found the records it sought, but uncovered a slew of CPRA violations along the way. “The city’s disorganized record-keeping is hindering its ability to do the people’s business in a transparent fashion,” jurors conclude.

One can only imagine how the general public fares.

“The city knew that the requester was the grand jury,” the report continues. “Given the grand jury’s statutory ability to investigate and report on the city, it can be assumed that the city gave the grand jury heightened attention. The grand jury is concerned because it has greater access to public records than a private citizen does, yet it had significant trouble obtaining documents despite multiple requests.”

All the grand jury’s advice involved training staff about CPRA compliance, implementing software to keep track of records requests and writing policy to set it all in stone.

“The grand jury encountered non-compliance by the city in response to its CPRA requests,” the report states. “Non-compliance with the CPRA included non-responsive replies to the requests, invalid excuses for extensions of time, and incomplete document production. The city acknowledged its record-keeping system was disorganized and in need of improvement, but the city did not have an interim solution. However, the city’s progress towards implementation of an existing record-keeping software has been without a sense of urgency. The grand jury finds the city’s non- compliance with CPRA unacceptable and recommends the city implement measures immediately that will ensure compliance with CPRA requests.”

San Jose Inside can attest from experience that several other local agencies would fare no better. But the CPRA relies to an extent on the honor system and depends on the requestor to keep the target agency in check. If a respondent cites an invalid excuse for delays or denials, it’s up to the requestor to identify the violation.

Maybe next year’s grand jury can expand on this Santa Clara investigation and hold the rest of the county’s public agencies accountable. Because, for the most part, the CPRA is only enforced by the honesty of the respondent, sagacity of the requestor or the generosity of free-speech attorneys who care about the cause.

Though the city has yet to submit a formal response to the civil grand jury, it issued the following news release to note some points of disagreement.

After reviewing the Santa Clara County Civil Grand Jury Report about public records access, the city of Santa Clara is appreciative of the civil grand jury’s time in examining the issue of public records. However, the city disagrees with its overall findings.

The grand jury report, issued on June 18, 2019, is focused on one of the city’s gap areas identified as early as January 2018, shortly after City Manager Deanna J. Santana’s began her tenure with Santa Clara. City Manager Santana has reported several times that the decentralized state and manual nature of record-keeping is inefficient and presents challenges for many areas of service delivery. These conditions are not uncommon in other municipalities, and unfortunately, the civil grand jury’s review lacked municipal benchmarking with other cities. Additionally, contrary to the report’s incorrect findings, the city remains compliant with the California Public Records Act (CPRA).

Although a formal response to the civil grand jury report will be presented by city staff to the City Council in the late August/early September time frame, the city felt it important to note some key areas of disagreement with the report that was issued:

• The city disagrees with Finding #1 that the city does not properly respond to CPRA requests. In fact, the city is mandated to respond to all public records request within the 10-day period and utilizes a template that acknowledges the request and a date that the city will follow up as to whether the city possesses responsive records to the request. The city utilizes the 14-day extension only as dictated by the California Public Records Act (CPRA) and explicitly states the reason for the extension for each request. The grand jury’s report failed to mention this set of legally compliant actions.
• The city disagrees with Finding #2 that the city lacks a written policy. In fact, the city has a written policy by way of a City Manager Directive #13 to guide staff in responding to CPRA requests in a manner that complies with the law. This policy is in the process of being modernized to consider technology, staffing and resources changes along with updates the City has made. In Santa Clara, city manager directives are used as administrative policies, much like other organizations, to direct procedures, practices and policies. The grand jury’s report failed to mention the existing city manager directive.
• The city disagrees with Finding #3 that the city’s record-keeping and lack of a functional records management system hinders its ability to timely and accurately respond to CPRA requests. The city identified public records management as an area of improvement with the first six month of the city manager’s tenure. The city has acted to remedy this issue which includes the hiring of a public records manager with a mission to centralize the city’s record-keeping. The civil grand jury partially acknowledges the steps the city has taken to improves its process, but set an unrealistic time frame for executive leadership who have been in place for less than two years , and a public records manager who has been in place for less than six months, to develop and implement systems that are complex and far-reaching throughout the city administrative infrastructure.
• The city disagrees with Finding #4 that the public records manager is the only staff member trained to respond to CPRA requests. In fact, the city has several staff members who are trained, equipped and obtain the professional experience and ability to assist and support the city’s public records process. In an effort to serve in the best way possible, the city recognizes that having staff in various areas and expertise levels, who are involved in the process for public records process, increases its ability to fully respond to public records requests. The public records manager cannot serve as a subject matter expert in every department in order to identify all responsive records to a request and, accordingly, as a long-standing practice the city has had multiple staff within its departments trained on responding to CPRAs.

The CPRA is designed to allow public agencies to produce readily available records within 10 days and allow the public agency to produce additional records, thereafter, recognizing that some records may require more time. The city also remains transparent about the resources challenges that Santa Clara faces with concurrently responding to many requests for records while implementing modern practices that would result in a more efficient process. The volume of CPRA requests, many of which are complex, continue to draw from our limited resources as a city and, yet, the city continues to be transparent, responsive and compliant with CPRA requests.

The city supports the public’s right to access public records. In fact, one of the City Council’s priorities is to “enhance community engagement and transparency” and the city has reported and established new practices that are advancing modern practices for records management. Looking ahead, the city remains committed to improving public record management processes and enhancing transparency.