PUBLIC NOTICE: BART to SFO Cover Up
Alan Hirsch
SamTrans & CalTrain Refuses to Release Electronic Information
Claim BART Financial Data in spreadsheet is "software"
SamTrans and the CalTrain Joint Powers Board staff has refused to make
available electronic copies of key public documents under the
California Public Record Act. (www.well.com/user/fap). This request
was made by Alan Hirsch who maintains the FAQ's on BA.Transportation.
The information requested was written in WordPerfect 5.1
and was contained on two floppy disks. The secretary Christine
Antone said she was able to quickly copy if she was given blank
disks, but was stopped by SamTrans manager who claim that once posted
on the internet they would be forged.
SamTrans also refused to release a Lotus file containing financial
data for BART to SFO claiming this file was "software" and thus
protected under a claus in state law written to protect software that
might be commercially resold by a public agency.
(Folks know that both Microsoft and Lotus both talk about these
files as "data" in their documentation but SamTrans has defined it as
software to prevent release and review by the public).
Access to electronic copies of public records is a right
long guaranteed under the FEDERAL Freedom of Information Act
and was as important part of the Iran-Contra investigation. However,
SamTrans attorney claims that California law is more restrictive, and
that they can release records in any form the choose.
This interpretation is incorrect, according to Terry Franck, of the
California First Amendment Foundation and Ed Davis an attorney for who
has represented the San Jose Mercury on such matters.
There is a long precedent for releasing electronic forms of California
public records such as your driving records from DMV and County Tax
Roles to commercial entities who use it set insurance rates and send
the public junk mail.
Though the information was request in early May, this issue was not
raised by Staff to SamTrans or Joint Powers Policy Board, and the
first CalTrain chairman and attorney Jean McCown heard of it was when
she was contacted by Alan Hirsch. She is still investigating.
Peninsula Rail 2000 and the CalTrain Citizens Advisory Committee has
been asking for over a year to place the Nine Year Plan and minutes
of meetings on the Internet to make is information more accessible.
SamTrans and the JPB are the only two agencies in the Bay Area who
charge the public for hard copies of there long range plans,and
currently charge 4 times more than commercial copy centers for copies
of public records, also a violation of California Law.
SamTrans Director Larry Stueck claimed that if electronic copies of
records were released citizens might "forge" changes. He suggested
that if someone want to have an electronic copy, they should pay 25c
a page of hard copy, then go find an electronic scanner and complex
Optical Character Recognition Software to convert documents back to an
electronic form.
"Using that argument that maybe I and other might forge something,
they might consider the fact with computer technology I can forge
paper document. And using the same logic, public officials should not
talk to the press because they might be misquoted" observed Alan
Hirsch..
This is part of a pattern by SamTrans/JPB staff to resist public
involvement, including proposing regulation to prevent transit
activist from fliers train stations, and refusing to hold public
hearing on the final BART to SFO Environmental Impact Statement.
No copies of the BART to SFO EIS were mailed to any pubic library in
Santa Clara Co for the public to review even though BART to SFO
requires 80% of all CalTrain riders to San Francisco to transfer to
BART.
==================================
from: http://www.well.com/user/fap/prax.htm#How
WHAT RECORDS ARE SUBJECT TO THE ACT?
All records of public agencies are open for inspection and copying
during office hours of the agency(§§6253(a),6256).
"Public Records" includes every means of recording or communication or
representation: any writing, photograph, drawing, sound or symbol,
whether paper, film, magnetic media "computer" data or other document
-- which relates to the public business, and which is
prepared, owned, used, or retained by the agency. (§6252(d),(e)).
Files and any other "identifiable records" are subject to the PRA. The
PRA does not require that you know the precise name of the record you
are seeking. See "Tips and Tricks".
Draft Documents are "public records" under the PRA, and must be
disclosed if: (1) They are retained by the agency in the ordinary
course of business and (2) the public interest in disclosure is not
clearly outweighed by the public interest and withholding the draft
documents §6252, §6254(a).
Private papers belonging to an agency employee that are incidentally
at the office are not "public records" unless the papers "relat[e] to
the conduct of the people's business [and are] prepared, owned, used
or retained by the agency." Section 6252(b)."
Computer records and computer data are included in the definition of
public records under the PRA: data are included in the definition of
"records" (§6252(e)). "Nothing in this section
is intended to affect the public record status of information merely
because it is stored in a computer. Public records stored in a
computer shall be disclosed..." Section 6254.9
BUT: Computer software developed by an agency is not a public record
(§6254.9(a)). This means that an agency is not required to release
software developed in house. If it does, the
agency may "sell, lease, or license the software [at any cost] for
commercial or noncommercial use."
Only records that already exist are covered The PRA does not require
agencies to create a records, compilation or list. See "Tips and
Tricks".
HOW MUCH CAN AN AGENCY CHARGE FOR ACCESS AND COPIES?
Access is always free. Section 6253(a).User, search, file review, or
other fees for access are not permitted.
For copies an agency may charge only "direct costs of duplication,"
i.e., the actual cost of making a copy (usually 6 to 25 cents per
page). Section 6257. Charges to search, review, or redacting are
not permitted. (North County Parents, etc. v. Dept of Education, 23
Cal.App.4th 144 (1994). To preview a summary of a recent First
Amendment Project involving this issue see
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ON WHAT BASIS CAN AN AGENCY DENY A PRA REQUEST?
Drafts: preliminary drafts, notes and memos, but only if "not
retained...in the ordinary course of business"and "the public interest
in withhoding clearly outweighs the public interest in
disclosure"(§6254(a)). Draft reports are not exempt if the agency
personnel normally keep copies on file. No further analysis is
required. (CBE v. Dept of Food and Agriculture, 171 CA3d 704 (1985)).
Even if not normally kept, the agency must also show a compelling
public interest in nondisclosure.
If the draft report contains both facts and a preliminary staff
recommendation, only the latter may be withheld, while factual matters
must be disclosed (CBE v. Dept of Food and Agriculture).
A report may not be withheld on the basis that, e.g. the City Council
has not yet seen it. When it goes to a majority of Council members,
it becomes a public record under the Brown Act, unless covered by an
exception for a closed session (Govt. Code §54957.5).
RicSilver
Ahi...@best.com (Alan Hirsch) posted:
AH>>SamTrans and the CalTrain Joint Powers Board staff has refused to make
available electronic copies of key public documents under the
California Public Record Act. (www.well.com/user/fap). This request
was made by Alan Hirsch who maintains the FAQ's on BA.Transportation. <<
AH>>The information requested was written in WordPerfect 5.1
and was contained on two floppy disks. The secretary Christine
Antone said she was able to quickly copy if she was given blank
disks, but was stopped by SamTrans manager who claim that once posted
on the internet they would be forged. <<
Personally, whatever the law, I think they should give Alan the
information he requests, but considering how he has distorted information
and facts in the past, I really can't blame them for being concerned.
AH>>Access to electronic copies of public records is a right
long guaranteed under the FEDERAL Freedom of Information Act <<
Long? I think the act was only amended to include this about 3 years ago.
AH>> However,
SamTrans attorney claims that California law is more restrictive, and
that they can release records in any form the choose. <<
Why don't you sue and get it straighten out once and for all!
AH>>There is a long precedent for releasing electronic forms of California
public records such as your driving records from DMV <<
Wasn't there a law passed las year making DMV records confindential?
AH>>and County Tax Roles to commercial entities who use it set insurance
rates and send the public junk mail. <<
In these cases the law specifically says this information is a matter of
public record.
AH>>This is part of a pattern by SamTrans/JPB staff to resist public
involvement, including proposing regulation to prevent transit
activist from fliers train stations, and refusing to hold public
hearing on the final BART to SFO Environmental Impact Statement.<<
First of all I pass things out a CalTrain stations allthe time and have
never been questioned, and I've seen others do the same thing. As for the
public hearing, they actually guite a few all through the process. I
personall remember going to 3. This include a hearing on the day they
approved the final document.
AH>>No copies of the BART to SFO EIS were mailed to any pubic library in
Santa Clara Co for the public to review even though BART to SFO
requires 80% of all CalTrain riders to San Francisco to transfer to
BART.<<
First of all the TA in Santa Clara had a copy. But in any case how far do
you distribute thes things? Using you logic the should be sent to Gilroy
and Morgan Hill (60 and 75 miles from the proposed BART millbrae station).
Since it will affect CalTrain, as you say, they by extention you could say
it would effect AmTraK. Do you then send to LA San Diego etc?
Where does it end? And as a practical matter, just how many people in San
Jose are really that interested in it and would take the time to look
through a document that is full of technical stuff?
Richard L Silver