City of South Lake Tahoe seeks to strike ‘balance’ in disclosure of cannabis documents (updated)
Attorney: City’s decision might violate California Public Records Act
The city of South Lake Tahoe has opted to temporarily withhold documents submitted by hopeful cannabis businesses from public disclosure — a move that an attorney for a press organization said could be in conflict with state law.
The city’s decision comes in response to public records requests, including a request from the Tribune seeking copies of all 21 cannabis business applications submitted to the city of South Lake Tahoe.
The city opened an application period earlier this year allowing hopeful cannabis business operators to submit applications for a limited number of development agreements.
A committee then evaluated all the applications using a rubric and assigned scores to determine who would receive the agreements.
The Tribune originally requested the documents in April after the application period closed.
At the time, City Clerk Susan Blankenship said legal counsel advised against the release of the documents because the city agreed to a blind scoring process.
Disclosing the applications would make a blind scoring process impossible.
The city’s scoring committee completed its evaluations and the city released the results on Friday.
The Tribune submitted the same request for all 21 cannabis business applications on Monday.
That same day, South Lake Tahoe Attorney Heather Stroud notified the applicants that the city had received several public records requests, as well as several requests from applicants asking the city to reject the records requests in their entirety.
In response to the Tribune’s request, the city on Wednesday provided a copy of Stroud’s letter as well as electronic copies of the score sheets for each of the 21 applicants.
The applicants argued that the documents contain proprietary and confidential materials, including trade secrets and personal information that are protected from disclosure under state law.
The Tribune attempted to contact each of the applicants who asked the city to reject the records request, but they either did not respond or declined to comment.
In her letter, Stroud said the city adheres to California’s Public Records Act, which requires timely responses and redaction of information that is exempt from disclosure as specified under the law.
“My preliminary review of the applications indicates that while the applications may contain some information exempt from disclosure that may be redacted, the bulk of the applications are not confidential and are subject to disclosure under the Public Records Act,” Stroud wrote. “California’s strong public policy in favor of disclosure of public records has resulted in courts consistently holding that when individuals or businesses voluntarily enter the public sphere, their privacy interests are diminished.”
However, Stroud said in an attempt to balance duties under the Public Records Act and the privacy concerns of the applicants, the city would give the applicants 10 days to file a request for a court order stopping the disclosure of application materials.
If no request is made by June 21, the city will proceed with disclosure of the applications with the appropriate redactions “under the trade secret privilege set forth in Government Code section 6254.15 and the privilege for certain personal financial data in Government Code section 6254(n),” according to Stroud.
The decision to delay disclosure to provide extra time for possible litigation is unusual and seemingly at odds with California’s Public Records Act, said Whitney Prout, staff attorney for the California News Publishers Association.
The applicants have the right to initiate litigation and protest disclosure, but Prout said, in her opinion, the creation of a 10-day window essentially cedes control of disclosure to the applicants, which would be a violation of the Public Records Act.
Section 6253.3 states: “A state or local agency may not allow another party to control the disclosure of information that is otherwise subject to disclosure pursuant to this chapter.”
“They’re allowing a third party to control their decision making …” Prout said. She characterized the city’s response to the issue as “bizarre.”
Stroud told the Tribune she stands by her letter and disagrees with Prout’s assessment.
In her experience Stroud said it is perfectly reasonable to give a short deadline for the party opposed to disclosure to make their case.
“The city and I completely respect our obligation under the Public Records Act and I would not allow a third party to dictate what we release,” she said Wednesday.
In reality, the 10-day window does not change the timeline for releasing the records, said Stroud, due to the need to redact some information. The city is currently going through the process of redacting information that is exempt under the law in anticipation of releasing the applications.
A search of El Dorado County Superior Court cases did not return any results indicating legal action has been initiated by any of the applicants.
Similarly, South Lake Tahoe Communications Manager Chris Fiore told the Tribune Wednesday evening that this city is not aware of any court filings in the matter.
Stroud said she does not think a court would agree with the applicants’ argument that the applications are not subject to disclosure.
UPDATE: This post has been updated to include a response from the South Lake Tahoe city attorney.