Jim Ewert, an authority on public records law who serves as the legal counsel to the California Newspaper Publishers Association, called “incredible” the arguments by City Attorney Marc Hynes against releasing a report of an investigation of Atherton building department employees.
“I’ve seen that argument about privacy used for keeping information from newspapers, but never have I heard that argument used for keeping a information from a city council,” Mr. Ewert said. “That’s taking it to its nth degree.”
The actual client who hired the investigator is the Atherton City Council, not the city manager, Mr. Ewert said. Therefore, the attorney-client privilege only exists between the City Council and the investigating attorney, he said.
As the client, a majority of council members could choose to waive that privilege and make the report public, he said.
The argument for keeping the report a secret because it involves personnel matters and employees’ expectation of privacy doesn’t hold up either, Mr. Ewert said.
Even assuming that the employees in question have reasonable expectation of privacy — “a huge leap of faith,” he said — the council is the employer, with the city manager acting as its agent.
“The City Council has a fiduciary duty, not only to the employees, but to the city itself to be informed,” Mr. Ewert said.
The state’s public records act prevents such information from being disclosed only if it is an “unwarranted invasion of personal privacy,” he said. There’s no prohibition on invading an employee’s privacy if it is warranted, he said.
Mr. Ewert said if he was a member of the Atherton City Council, he wouldn’t file a public records request, he would simply demand to be given the report.
“Give it to me now, or go look for work somewhere else,” he said. “Or I’d go directly to the attorney who wrote the report.”
Mr. Ewert said he’d never seen a city attorney “stiff-arm a council” in such a fashion.
“For the city attorney to be the gatekeeper, I find that to be career suicide,” he said. “It raises my suspicions about the attorney’s role in the building department debacle, and what participatory role the city manager had. People become naturally suspicious when doors are closed. I’ve never heard of doors being closed to a city council.”
Change of plans: Research campus to leave Menlo Park, make way for more housingJune 12, 2026 6:46 pm
