Atherton’s city attorney is refusing to make public a report of an investigation into Atherton’s troubled building department.
The Almanac on August 4 filed a public records request for the report, which was written by outside attorney Lance Bayer, who also conducted the investigation.
“Atherton residents need to know exactly what’s going on in the town’s building department, especially in light of recent revelations about employee discipline tied to the investigation,” said Almanac Managing Editor Richard Hine.
Lois English, a building department employee, announced publicly on August 31 that she was a target of the investigation and she received a written reprimand August 1 from City Manager Jim Robinson.
Ms. English denied all allegations in the reprimand, which included: accepting gifts; undermining the town’s surcharge on excavation work; rude and discourteous conduct; and selectively cooperating with staff members and contractors.
In rejecting the Almanac’s request on August 25, Atherton’s city attorney said that releasing the report would violate the privacy of town employees and the confidentiality of those who provided information. City Attorney Marc Hynes also said that Mr. Bayer’s report is protected from disclosure as “attorney/client privileged communication.”
Mr. Hynes cited other reasons, including employee privacy interests guaranteed by Article 1, Section 1 of the California Constitution, and exemptions in the government code that pertain to the discipline of public employees.
Jim Ewert, an authority on public records law who serves as the legal counsel to the California Newspaper Publishers Association, said the only argument cited by Mr. Hynes that would hold up in court is attorney-client privilege.
However, he said, the Atherton City Council, as Mr. Bayer’s client, could waive the privilege on a majority vote and make the report public.
“Generally in these types of cases an attempt is made by many cities to provide some documents or redacted versions of documents,” said Mr. Ewert. “Even if portions are exempt from being disclosed, they’re still required to redact those and provide (the public) with the remainder.”
