Novato Reaches Settlement in Public Records Act Case

NOVATO, CA — A settlement agreement has been reached in a case stemming from the city of Novato's initial refusal to fulfill a public records request for documents related to a sports complex proposed by the Marin Sports Academy.

Novato City Council voted unanimously in favor of the settlement agreement with San Rafael-based First Amendment Coalition — or FAC — which filed the lawsuit against the city in July.

In June, FAC requested all written communications between city staff and two consulting firms, Victus Advisors, LLC and the Sports Management Group. The firms were selected by the city to provide an economic impact study, a recreational field needs analysis and a review of attendance estimates. As part of its review process of the proposed Hamilton Fields project — a 55-acre commercial recreation complex at the former military base landfill site — the city initiated the preparation of these technical studies, paid for by the applicant, to assess the project’s impact on the community.

Initially, the city denied the request citing the "deliberative process privilege," an exemption under the California Public Records Act, which allows an agency to withhold disclosure of materials which would "expose an agency’s decision-making process in such a way to discourage candid discussion within the agency and thereby undermine the agency’s ability to perform its functions."

The privilege reflects a concern that the quality of decision-making suffers when an agency’s deliberative process is prematurely exposed to public scrutiny. In this case, the city stated that the information requested was iterative — reflecting a back-and-forth of draft work products between staff and the consultants — and could potentially cause confusion among the public with inaccurate and incomplete data, and as it would not reflect a final product.

At the time the FAC filed a court order with the Marin County Superior Court in July, demanding the release of the information, the Marin Sports Academy had withdrawn its application for the project, deeming the project inactive.

Given the updated status of the project, and in the interest of transparency and the potential cost of ongoing litigation, the City Council unanimously voted to release the information, including emails and other documents, exchanged between staff and the consultants.

Additionally, the city has agreed to pay for FAC attorneys’ fees and costs in the amount of $13,751.50 within 14 days of the executed agreement.

"This is an unique instance," said Mayor Pat Eklund on behalf of the Council. "Since the application for the Hamilton Fields project has been withdrawn, the Council believes that it is in the community’s best interest to make the information public. This decision reflects the Council’s ongoing commitment to transparency, public participation, and collaboration."

The Mayor added, "we are proud of the work that our staff does every day on behalf of the Novato community and we believe that the information provided demonstrates that city staff was diligent in vetting the consultants’ work, which will result in reliable information that will be helpful to the City and our residents."

Peter Scheer, executive director of First Amendment Coalition, told Patch Thursday they were "delighted to agree with the settlement."

"Voluminous sets of records are going to made available," Scheer said. "I think this is the proper outcome from the standpoint of the city, it is the correct outcome from the standpoint of citizens who are concerned and interested about the project, and obviously, it is the correct outcome from our standpoint."

Scheer said he can't comment on the nature of the documents because he has yet to review them.

"Until we actually take a look at those records, I can’t comment on the particular content that was withheld and will now be exposed," Scheer said. "We felt very strongly that the justification that Novato was asserting in order to deny access to these records was not appropriate for these circumstances; that it might conceivably have justified withholding one or two or three documents, but the wholesale categorical withholding of lots and lots and lots of records based on the privilege they cited ... In our view that is overreaching, under the law."

It's a mistake made in good faith by many local governments across the state, Scheer said.

"Our intention here, our purpose here, was to No. 1, assist a community group in getting access to these records because they had previously been denied on the same basis," Scheer said. "No. 2, educating city governments in Novato and other cities and towns around that this particular exemption they were claiming is much narrower than they think it is, and that while their inclination to withhold all these records may be understandable, at the end of the day, California law says you can't. The public gets to see much more of the work product of the government than it does for example, corporate America. That is just the way it is."

Scheer said he plans to obtain the records next week and will make them available to the community and members of the press.

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