Duran to Thomas Peele: Check Your Spam Filter

In a Contra Costa Times article published Saturday, reporter Thomas Peele said he made records requests to City Manager Steve Duran to test Hercules' transparency. The records were requested Jan. 5, and "(Duran) never replied formally to the request with any determination about what will be released," Peele wrote in the article.

Five months later, Peele was directed to the city attorney, he wrote. "I still have no idea what I will get, nor have I received any indication that Hercules' leaders take transparency seriously," Peele wrote.

Duran responded to Peele's piece to the Hercules City Council and Patch Sunday. In his response, he included a string of emails regarding Peele's Jan. 5 records requests. Patch has no way of verifying the emails. But here they are, for readers to judge for themselves (some contact information has been redacted):

From: Steve Duran
Sent: Sunday, May 27, 2012 11:18 AM
To: City Council
Cc: Patrick Tang
Subject: FW: PRA request for city salaries

City Councilmembers,

Thomas Peele made a false statement in his story that included the City of Hercules response to his requests for public information.  He said that I did noit resond to his request.

As you can see from the e-mail below, I resonded on the same day.

Subsequently, Mr. Peels asked for the e-mails to and from the City Council as well as to and from me for a certain period of time.  Once again, I responded promptly and in accordance with the law.  I will also forward you the e-mail correspndence related to that on Tuesday.  City Attoreny Patrick Tang also has all those e-mails, as he was copied and conferred with every step of the way.  The e-mail records requested required the review of thousants and thousands of e-mails, all of which Patrick had to ultimately review and redact for attorney-client privledged information, personnel information and confidential real estate negotiation information.  Patrick has been using an intern to gather everything for months and is releasing the information in batches as he completes his final review.

I will send you my prompt respnse to that request as well.

- sd
 
From: Steve Duran
Sent: Thursday, January 05, 2012 7:43 AM
To: 'EB PRA Requests'
Cc: Patrick Tang; Doreen Mathews; David Baum
Subject: RE: PRA request for city salaries

Mr. Peele and Mr. Willis,

This is the City’s required response to your request.

Your request requires some date gathering, which will take some time.  I am asking our interim finance director David Baum to undertake the task.

The City is not required to perform a research project, put together a report or to package the information in any form requested.

You will get the information you requested in the form in which is currently exists.

Thanks for your patience in this matter.

-          sd

From: EB PRA Requests
Sent: Wednesday, January 04, 2012 3:35 PM
To: Steve Duran
Subject: PRA request for city salaries

Mr. Steve Duran
City Manager, City of Hercules
Sduran@ci.hercules.ca.us

Mr. Duran,

This correspondence is a formal request under the California Public Records Law, Government Code §6251, and the Constitution of the State of California as amended by the passage of Prop 59 on Nov. 3, 2004, which requires you to take the broadest possible view and interpretation of the disclosure of government records, for electronic inspection of the following public information.  This is not a request for paper copies.  We will ask for paper copies of specific documents only should the need arise.  We also ask that all correspondence regarding this request be sent via email to the address from which this address was sent (prarequest@bayareanewsgroup.com<mailto:prarequest@bayareanewsgroup.com>) and that the U.S Mail not be used to respond to this request.  Also, please conduct all communication concerning this request in writing via email.  Please do not telephone regarding this request.

We request:

Data that show how much money the City of Hercules paid, before deductions, to each of its full and part time employees, elected officials and appointed officials in calendar-year 2011 as well as the following data that will allow the public to understand the total cost of employment of each individual: the cost to the employer of all medical benefits paid to each individual employee and each individual elected and appointed official, the cost to the employer of all pension and retirement contributions, including any portion of the employees share of pension contribution paid by the employer, any payments to any other deferred compensation or retirement plan, and the cost of worker’s compensation insurance and any other employer costs, such as but not limited to social security contributions.  These categories, described in more detail below, should include all the money that it cost your entity to employ each individual worker on its 2011 payroll.

We ask that, as a courtesy and to fully inform the public in the most transparent way possible, you please provide access to this information in an Excel spreadsheet or CSV file containing the data fields listed below.  This information will be used as a public service to help explain to the challenges that public entities faces in providing services.  Providing the data in this format minimizes the need for any manipulation of the information in order to publicly display it and greatly reduces the possibility of error.  The critical need for transparency of this data, all of which already exists, clearly outweighs any minor obstacles of providing it in a spreadsheet or CSV file.

The data fields are:
(1) employee last name,
(2) employee first name and middle initial,
(3) employee job title,
(4) employee department,
(5) employee base pay for 2011 before any deductions,
(6) gross employee overtime pay for calendar 2011,
(7) other taxable payments that contribute to gross pay if any, such as bonuses, all taxable stipends, allowances and other payments, uniform allowances, bi-lingual, shift-differential , etc., and in the case of employees who left the entity’s employment in 2011, payment of unused sick, vacation, compensatory and personal time,
(8) gross 2011 total pay before any deductions,
(9) the employer’s cost of all medical, dental and vision benefits, including employer's share and contributions paid on behalf of the employee,
(10) the employer’s share of pension payments,
(11) any share of the employee’s pension contribution paid by the employer,
(12) any payments to any deferred compensation or other types of retirement plans by the employer,
(13) the cost to the employer for long term disability, life, Medicare taxes and Social Security contributions,
(14) any additional monetary costs (excluding accrued vacation, sick and compensatory time) directly related to the 2011 cost of employment of the individual employee.

Providing the data in this format minimizes the need for any manipulation of the information in order to publicly display it.  The critical need for transparency of this data clearly outweighs any minor obstacles of copying it into a spreadsheet.  By providing the data in the format that requires the least possible manipulation, you are helping greatly to eliminate the possibility of inadvertent errors if those less familiar with the data than you or your staff were not to provide it in Excel.  Given the potential number of data fields available within your payroll system, it may be difficult for us to determine the overtime and other cash payments that contribute to gross pay, raising the potential of errors.  It is incumbent upon governmental entities to provide the data in the most transparent possible format.  This data will be publicly displayed in the Bay Area News Group’s online database of public employee salaries at http://www.contracostatimes.com/salaries and on other web sites.  The database now contains records of over two million government employees covering more than $122 billion in spending from calendar years 2008, 2009 and 2010.

The only employees exempt from the disclosure of their names are police officers working undercover.  If your entity employs such officers, please replace their name with the word “undisclosed” and release all other requested details of their pay.

If you are unwilling to provide the data in the format described above, then please provide the data in the electronic format in which it is maintained and as California law requires: “The agency shall make the information available in any electronic format in which it holds the information.” (6253.9(a)(1)).  I will also remind you that state law mandates that the cost of duplication for all public records is limited “to the direct cost of producing a copy of a record in an electronic format.”

We will remind you that government code section 623(d) prohibits use of the 10-day period, or any portions of the Public Records Act, "to delay the access for purposes of inspecting public records." Please note that the 10-day period for compliance with this request begins today, Jan. 3 2012, the day it was e-mailed to you.

In addition, be advised that the Constitution of the State of California, as amended by Prop. 59, requires that you take the broadest possible position to disclose these records when reviewing this request.  It is also your constitutional duty to take the narrowest possible view of any exemptions to disclosure of these records.

Thank you for your assistance with this routine request.

Thomas Peele, Investigative Reporter

From: Steve Duran
Sent: Thursday, January 05, 2012 6:12 PM
To: 'Peele, Thomas'
Cc: Patrick Tang; Doreen Mathews
Subject: RE: pra request emails

Mr. Peele.

Sorry for my earlier response to this e-mail.  I thought it was a repeat of your earlier request.

This is a different request than the earlier one.  I will have our IT department look follow up.

You understand, of course, that confidential real estate negotiations, personnel matters and attorney client privilege materials are exempt from your request, so our City Attorney will have to review all materials before they are released… or he can correct me if I am not 100% accurate on the law.

Thanks you for your patience.


-          sd



From: Peele, Thomas [mailto:tpeele@bayareanewsgroup.com]
Sent: Thursday, January 05, 2012 4:46 PM
To: Steve Duran
Subject: pra request emails
Importance: High


Steve Duran,
manager, Hercules
Jan. 5, 2012

Mr. Duran:

This correspondence is a formal petition under the California Public Records Law, California Government Code §6251, and the Constitution of the State of California as amended by the passage of Prop 59 on Nov. 3, 2004, This is not an immediate request for copies. I will ask for copies of specific documents after inspecting them. I also ask that all correspondence regarding this request be sent via email to my address listed above and that all communication about this request be conducted in writing.

All emails and text messages from Nov. 1, 2011 to Jan. 5. 2012, in which business of the city of Hercules was discussed, regardless of the account of the emails and text messages, by the following public officials: Dan Romero, John Delgado, Gerard Boulanger, Myrna de Vera, William Wilkins, and Steve Duran.

Please provide immediate access to these basic public records.

I will remind you that if portions of the information I have requested is exempt from disclosure by express provisions of law, government code section 6253 (a) additionally requires segregation and deletion of that material in order that the remainder of the information be released. If you determine that an express provision of law exists to exempt from disclosure all or a portion of the material I have requested, Government Code Section 6253(c) requires notification to me of the reasons for that determination not later than 10 days from your receipt of this request. Government code section 6253(d) prohibits use of the 10-day period, or any portions of the Public Records Act, "to delay the access for purposes of inspecting public records." The 10-day period for compliance with this request begins today, Jan. 5, 2012, the day it as emailed to you.

In addition, be advised that the Constitution of the State of California, as amended by Prop. 59, requires that you take the broadest possible position to disclose these records when reviewing this request. It is also your constitutional duty to take the narrowest possible view of any exemptions to disclosure of these records.

I also draw your attention to Government Code section 6253.1, which requires a public agency to assist the public in making a focused and effective request by (1) identifying records and information responsive to the request, (2) describing the information technology and physical location in which the records exist, and (3) providing suggestions for overcoming any practical basis for denying access to the records or information sought. I expect your full compliance with 6253.1 should the need arise.

Thank you for your assistance with this routine request.

Thomas Peele