Gilroy Municipal Code Art. III Public Information and Public Records

Whenever in this chapter the following words or phrases are used, they shall mean:

“Public information”

shall mean the content of public records as defined in the California Public Records Act (Government Code Section 7920.000, or its successor), whether provided in documentary form or in an oral communication.

“Public information”

shall not include computer software developed by the City of Gilroy as defined in the California Public Records Act (Government Code Section 7922.585, or its successor).

(Ord. No. 2008-11, 11-17-2008; Ord. No. 2023-10, §§ 2 (Exh. A), 4, 11-20-2023)

(a) Every department head who has custody of any public record or public information as defined herein or who manages, directly or indirectly, subordinate employees within that department that have custody of any public record or public information as defined herein, or that department head’s designated representative under section 17A.22(1) (hereinafter referred to as “a department head”), shall, at normal times and during normal and reasonable hours of operation, without unreasonable delay, and without requiring an appointment, permit the public record, or any segregable portion of a record, to be inspected and examined by any person and shall furnish one (1) copy thereof upon payment of a reasonable copying charge as may be set from time to time by the city council.

(b) A department head shall, as soon as possible and within ten (10) calendar days following receipt of a request for inspection or copy of a public record, comply with such request unless the voluminous nature of the information requested, its location in a remote storage facility or the need to consult with legal counsel warrants an extension of ten (10) calendar days as provided in Government Code Section 7922.535, or its successor. Such request may be delivered to the office of the department head by the requester orally or in writing by fax, postal delivery, or email. If the department head believes the record or information requested is not a public record or is exempt, the department head shall justify withholding any record by demonstrating, in writing, as soon as possible and within ten (10) calendar days following receipt of a request, or following the extension of ten (10) calendar days as provided in Government Code Section 7922.535, or its successor, that the record in question is exempt under express provisions of this chapter.

(c) A department head shall assist a requester in identifying the existence, form, and nature of any records or information maintained by, available to, or in the custody of the department head, whether or not the contents of those records are exempt from disclosure, and shall, when requested to do so, provide in writing within ten (10) calendar days following receipt of a request a statement as to the existence, quantity, form and nature of records relating to a particular subject or questions with enough specificity to enable a requester to identify records in order to make a request under subsection (b) of this section. A department head, when not in possession of the record requested, shall assist a requester in directing a request to the proper office or staff person.

(d) If the department head refuses, fails to comply, or incompletely complies with a request described in subsection (b) of this section, the person making the request may, within forty-five (45) calendar days of the department head’s response or the expiration of the department head’s period to respond if no response is provided, petition the city administrator in writing, and in the form required by the open government commission, for a determination whether the record requested is public. The city administrator shall inform the petitioner, as soon as possible and within thirty (30) calendar days of the petition, of the city administrator’s determination whether the record requested, or any part of the record requested, is public. Where requested by the petition, and where otherwise desirable, this determination shall be in writing. Upon the determination by the city administrator that the record is public, the city administrator shall immediately order the department head to comply with the person’s request. If the department head refuses or fails to comply with any such order within five (5) days, the city administrator shall notify the city attorney who shall take whatever measures deemed necessary and appropriate to ensure compliance with the provisions of this chapter.

(e) If a petition to the city administrator under subsection (d) of this section is denied or not acted upon by the city administrator, the person making the request may, within forty-five (45) calendar days of the city administrator’s denial or the expiration of the city administrator’s thirty (30) day period to act upon the petition, petition the open government commission for a determination whether the record requested is public. The open government commission shall inform the petitioner, as soon as possible and within two (2) days after its next meeting but in no case later than forty-five (45) days from when a petition in writing is received, of its determination whether the record requested, or any part of the record requested, is public. Where requested by the petition, and where otherwise desirable, this determination shall be in writing. Upon the determination that the record is public, the open government commission shall advise the city council as to whether the record should be public. The city council and the city attorney’s office shall provide sufficient resources to allow the open government commission to fulfill its duties under this provision. Where requested by the petition, the open government commission may conduct a public hearing concerning the records request denial. An authorized representative of the department head shall attend any hearing and explain the basis for its decision to withhold the record requested.

(f) The administrative remedy provided under this chapter shall in no way limit the availability of other administrative remedies provided to any person with respect to any officer or employee of any agency, executive office, department or task force; nor shall the administrative remedy provided by this section in any way limit the availability of judicial remedies otherwise available to any person requesting a public record. If a department head refuses or fails to comply with the request of any person for inspection or copy of a public record or with an administrative order under this section, the superior court of California shall retain jurisdiction to order compliance.

(g) In any court proceeding pursuant to this chapter there shall be a presumption that the record sought is public, and the burden shall be upon the department head to prove with specificity the exemption which applies.

(h) At least once a year, and as otherwise requested by the open government commission, the city administrator shall prepare a tally and report of every petition brought before it for access to records since the time of its last tally and report. The report shall at least identify for each petition the record or records sought, the department head of those records, the ruling of the city administrator, whether any ruling was overturned by a court and whether orders given to department heads of public records were followed. The report shall also summarize any court actions related to any petitions during that period. At the request of the open government commission, the report shall also include copies of all rulings made by the city administrator and all opinions issued.

(i) The Gilroy city attorney’s office shall act to protect and secure the rights of the people of Gilroy to access public information and public meetings. The city attorney or its designee will monitor the handling of public records when any elected public official or the city administrator leaves office and moves materials from the office. All elected officials and the city administrator shall surrender all public records in their possession to the city attorney or its designee at the time of leaving office.

(j) Release of documentary public information, whether for inspection of the original or by providing a copy, shall be governed by the California Public Records Act (Government Code Section 7920.000, or its successor, et seq.) to the extent not addressed by this chapter and in accordance with the enhanced disclosure requirements provided in this chapter.

(k) Inspection and copying of documentary public information stored in electronic form shall be made available to the person requesting the information in any form requested which is available to or easily generated by the department, its officers or employees, including disk, tape, printout or monitor at a charge no greater than the cost of the media on which it is duplicated. Inspection of documentary public information on a computer monitor need not be allowed where the information sought is necessarily and inseparably intertwined with information not subject to disclosure under this chapter. Nothing in this section shall require a department to program or reprogram a computer to respond to a request for information or to release information where the release of that information would violate a licensing agreement or copyright law.

(l) Repealed by Ord. 2014-03.

(Ord. No. 2008-11, 11-17-2008; Ord. No. 2014-03, § 1, 4-7-2014; Ord. No. 2017-03, §§ 1, 2, 3-6-2017; Ord. No. 2023-10, §§ 2 (Exh. A), 4, 11-20-2023)

It is the policy of the City of Gilroy to utilize computer technology in order to reduce the cost of public records management, including the costs of collecting, maintaining, and disclosing records subject to disclosure to members of the public under this section. To the extent that it is technologically and economically feasible, departments that use computer systems to collect and store public records shall program and design such systems to ensure convenient, efficient, and economical public access to records and shall make public records easily accessible over public networks, including but not limited to the internet.

(Ord. No. 2008-11, 11-17-2008; Ord. No. 2023-10, § 2 (Exh. A) , 11-20-2023)

Release of oral public information shall be accomplished as follows:

(1) Every department head shall designate a person or persons knowledgeable about the affairs of the department to provide information, including oral information, to the public about the department’s operations, plans, policies and positions (referred to herein as “a department head”). The department head may designate himself or herself for this assignment, but in any event shall arrange that an alternate or alternates be available for this function during the absence or unavailability of the person assigned primary responsibility. A list of every city department and every designated and alternate department head for public record inspection purposes, along with those employees’ business addresses, telephone numbers and email addresses, shall be available for inspection and copying at the office of the city clerk and shall be kept and regularly maintained on the city’s website.

(2) The role of the person or persons so designated shall be to provide information on as timely and responsive a basis as possible to those members of the public who are not requesting information from a specific person. This section shall not be interpreted to curtail existing informal contacts between employees and members of the public when these contacts are occasional, acceptable to the employee and the department, not disruptive of the employee’s operational duties and confined to accurate information not confidential by law.

(3) If it would take an employee more than fifteen (15) minutes to obtain the information responsive to an inquiry or inquiries from a member of the public, the employee shall notify the requester of the procedures for obtaining records under this chapter.

(4) Public employees shall not be discouraged from or disciplined for the expression of their personal opinions on any matter of public concern while on duty, so long as the opinion (a) is not represented as that of the department and does not misrepresent the department position; and (b) does not disrupt coworker relations, impair discipline or control by superiors, erode a close working relationship premised on personal loyalty and confidentiality, interfere with the employee’s performance of that employee’s duties or obstruct the routine operation of the office in a manner that outweighs the employee’s interests in expressing that opinion. In adopting this section, the city council intends merely to restate and affirm court decisions recognizing the First Amendment rights enjoyed by public employees. Nothing in this section shall be construed to provide rights to city employees beyond those recognized by courts, now or in the future, under the First Amendment, or to create any new private cause of action or defense to disciplinary action.

(5) Notwithstanding any other provisions of this chapter, public employees shall not be discouraged from or disciplined for disclosing any information that is public information or a public record to any journalist or any member of the public.

(Ord. No. 2008-11, 11-17-2008; Ord. No. 2023-10, § 2 (Exh. A), 11-20-2023)

The city clerk or the designated secretary of a particular policy body shall maintain a file, accessible to any person during normal office hours, containing a copy of any letter, memorandum or other communication which the clerk has distributed to or received from a quorum of the policy body concerning a matter calendared by the body within the previous thirty (30) days or likely to be calendared within the next thirty (30) days, irrespective of subject matter, origin or recipient, except commercial solicitations, periodical publications or communications exempt from disclosure under the California Public Records Act (Government Code Section 7920.000, or its successor, et seq.) and not deemed disclosable under section 17A.24.

(Ord. No. 2008-11, 11-17-2008; Ord. No. 2023-10, §§ 2 (Exh. A), 4, 11-20-2023)

Notwithstanding a department’s legal discretion to withhold certain information under the California Public Records Act, the following policies shall govern specific types of documents and information and shall provide enhanced rights of public access to information and records:

(1) Drafts and Memoranda. No preliminary draft or memorandum shall be exempt from disclosure under Government Code Section 7927.500, or its successor, if it is kept in the normal course of business. For purpose of this chapter, “normal course of business” means in the inherent nature of the city’s business in question, and in the method systematically employed for the conduct of the task in question. Preliminary drafts and memoranda concerning contracts, memoranda of understanding, or other matters subject to negotiation or pending council approval shall not be subject to disclosure pursuant to this provision until final action has been taken.

(2) Litigation Material. Notwithstanding any exemptions otherwise provided by law, the following are public records subject to disclosure under this chapter:

a. A pre-litigation claim against the city (excluding any investigative reports);

b. A record previously received or created by a department in the ordinary course of business that was not attorney/client privileged or attorney-work product when it was previously received or created.

(3) Contracts, Bids and Proposals.

a. All initial city requests for proposals (“RFPs”) shall be kept in a central repository and shall be made available for public inspection. In addition, RFPs shall be placed on the city’s website for a period from the date the RFP was issued to the date that the RFP is due.

b. Contracts, contractors’ bids, responses to requests for proposals and all other records of communications between the department and persons or firms seeking contracts shall be open to inspection immediately after a contract has been awarded. Nothing in this provision requires the disclosure of a private person’s or organization’s net worth or other proprietary financial data submitted for qualification for a contract or other benefit. All bidders and contractors shall be advised that information provided which is covered by this section will be made available to the public upon request. Immediately after any review or evaluation or rating of responses to an RFP has been completed, evaluation forms and score sheets and any other documents used by persons in the RFP evaluation or contractor selection process shall be available for public inspection. The individual ratings, comments, and score sheets or comments on related documents shall be made immediately available after the review or evaluation of an RFP has been completed.

(4) Budgets and Other Financial Information. Budgets, whether tentative, proposed or adopted, for the city or any of its departments, programs, projects or other categories, and all bills, claims, invoices, vouchers or other records of payment obligations as well as records of actual disbursements showing the amount paid, the payee and the purpose for which payment is made, other than payments for social or other services whose records are confidential by law, shall not be exempt from disclosure.

(5) Appraisals, offers and counteroffers relating to the city’s purchase of real property are exempt until an agreement is executed.

(6) Repealed by Ords. 2019-04 and 2019-05.

(7) Neither the city nor any officer, employee, or agent thereof may assert an exemption for with-holding for any document or information based on a deliberative process exemption, either as provided by California Public Records Act Section 7922, or its successor, or any other provision of law that does not prohibit disclosure.

(8) Repealed by Ords. 2019-04 and 2019-05.

(Ord. No. 2008-11, 11-17-2008; Ord. No. 2018-03, § 1, 1-22-2018; Ord. No. 2019-04, 2-11-2019; Ord. No. 2019-05, § 1, 2-25-2019; Ord. No. 2023-10, §§ 2 (Exh. A), 4, 11-20-2023)

Notwithstanding the ten (10) calendar day period for response to a request permitted in Government Code Section 7922.525, or its successor, a request for a public record described in any nonexempt category which is received by a department head shall be satisfied no later than the close of business on the day following the request unless the department head advises the requester in writing that the request will be answered by a specific future date. The statutory deadlines are appropriate for more extensive or demanding requests, but shall not be used to delay fulfilling a simple, routine or otherwise readily answerable request. If the voluminous nature of the information requested, its location in a remote storage facility or the need to consult with legal counsel warrants an extension of ten (10) calendar days as provided in Government Code Section 7922.535, or its successor, the requester shall be noticed as required within ten (10) business days of the request. Nothing in this section shall prohibit the requester and department head or his/her designee from agreeing to a longer time than provided for herein for the provision of requested records. Any such mutual agreement shall be in writing and signed by the requester.

(Ord. No. 2014-03, § 1, 4-7-2014; Ord. No. 2023-10, §§ 2 (Exh. A), 4, 11-20-2023)

Information that is exempt from disclosure shall be masked, deleted or otherwise segregated so that the nonexempt portion of a requested record may be released and keyed by footnote or other clear reference to the appropriate justification for withholding required by section 17A.27.

(Ord. No. 2008-11, 11-17-2008; Ord. No. 2023-10, § 2 (Exh. A), 11-20-2023)

Any withholding of information shall be justified, in writing, as follows:

(1) A withholding under a specific permissive exemption in the California Public Records Act, or elsewhere, which permissive exemption is not forbidden to be asserted by this chapter, shall cite that authority.

(2) A withholding on the basis that disclosure is prohibited by law shall cite the specific statutory authority in the Public Records Act or elsewhere.

(3) A withholding on the basis that disclosure would incur civil or criminal liability shall cite any specific statutory or case law, or any other public agency’s litigation experience, supporting that position.

(4) When a record being requested contains information most of which is exempt from disclosure under the California Public Records Act and this section, the department head shall inform the requester of the nature and extent of the nonexempt information and suggest alternative sources for the information requested, if available.

(Ord. No. 2008-11, 11-17-2008; Ord. No. 2023-10, § 2 (Exh. A) , 11-20-2023)

The following policies shall govern specific types of documents and information and shall provide enhanced rights of public access to information and access:

(1) Notwithstanding Government Code Section 7922.535, or its successor, the following information shall be considered a public record and shall be made available for review upon request by any person, business or association: a listing of gross earnings by name and job title, including base salaries and other compensation. Other compensation shall include allowances, overtime, and deferred compensation, leave cash-out payments and the percentage of base salaries that the city pays as the employer’s CalPERS contribution.

(Ord. No. 2008-11, 11-17-2008; Ord. No. 2023-10, §§ 2 (Exh. A) , 4, 11-20-2023)

(a) No fee shall be charged for making public records available for review.

(b) For documents routinely produced in multiple copies for distribution, e.g., meeting agendas and related materials, a fee as may be set from time to time by the city council may be charged, plus any postage costs.

(c) For documents assembled and copied to the order of the requester, a fee as may be set from time to time by the city council may be charged, plus any postage.

(d) Copies of video recorded meetings shall be provided to the public upon request for the actual cost of materials (i.e., videotape) per meeting. Audiotapes of audiotaped meetings shall be provided upon public request for the actual cost of the tape by the policy body whose meeting was recorded. The city council shall from time to time approve a fee schedule determining these costs.

(Ord. No. 2008-11, 11-17-2008; Ord. No. 2023-10, § 2 (Exh. A), 11-20-2023)

The city shall maintain a public records index that identifies the types of information and documents maintained by the city and its departments, agencies, task forces, commissions, and elected officers. The index shall be for the use of city officials, staff and the general public, and shall be organized to permit a general understanding of the types of information maintained, by which officials and departments, for which purposes and for what periods of retention, and under what manner of organization for accessing, e.g., by reference to a name, a date, a proceeding or project, or some other referencing system. The index need not be in such detail as to identify files or records concerning a specific person, transaction or other event, but shall clearly indicate where and how records of that type are kept. The city clerk shall be responsible for the preparation of this records index. Each department, agency, commission and public official shall cooperate with the city clerk to identify the types of records it maintains, including those documents created by the entity and those documents received in the ordinary course of business and the types of requests that are regularly received. Each department, agency, commission and public official is encouraged to solicit and encourage public participation to develop a meaningful records index. The index shall clearly and meaningfully describe, with as much specificity as practicable, the individual types of records that are prepared or maintained by each department, agency, commission or public official of the city. The index shall be sufficient to aid the public in making an inquiry or a request to inspect. Any changes in the department, agency, commission or public official’s practices or procedures affecting the accuracy of the information provided to the city clerk shall be recorded by the city clerk on a periodic basis so as to maintain the integrity and accuracy of the index. The index shall be continuously maintained on the city’s website and made available at the Gilroy Library.

(Ord. No. 2014-03, § 1, 4-7-2014; Ord. No. 2023-10, § 2 (Exh. A), 11-20-2023)

All documents prepared, received, or maintained by the head of any department are the property of the City of Gilroy. The originals of these documents shall be maintained consistent with the records retention policies of the City of Gilroy. The city administrator shall monitor the transition of the above public officials to ensure that public documents are not unlawfully removed or destroyed during the transition.

(Ord. No. 2008-11, 11-17-2008; Ord. No. 2023-10, § 2 (Exh. A), 11-20-2023)

The City of Gilroy shall maintain on a World Wide Web site, or on a comparable, readily accessible location on the internet, information that it is required to make publicly available. Each department is encouraged to make publicly available through the city’s website as much information and as many documents as possible concerning its activities. These include but are not limited to campaign report forms, statements of economic interest, operating and capital budgets, meeting agenda, meeting minutes, public notices and, when feasible, staff meeting reports. Within twelve (12) months after enactment of this provision, each department shall post on the city’s website all meeting notices required under this chapter, all agendas and the minutes of all previous meetings of its policy bodies from that point in time forward. Notices and agendas shall be posted no later than the time that the department otherwise distributes this information to the public, allowing reasonable time for posting.

Minutes of meetings shall be posted as soon as possible, but in any event within one (1) week after they have been approved. The city shall make reasonable efforts to ensure that its website is regularly reviewed for timeliness and updated on at least a weekly basis. The city shall also make available on its website, or on a comparable, readily accessible location on the internet, a current copy of the city code.

The city shall also webcast all city council and planning commission meetings and archive the webcasts of such meetings for at least ten (10) years.

(Ord. No. 2008-11, 11-17-2008; Ord. No. 2023-10, § 2 (Exh. A), 11-20-2023)

(a) The city administrator shall for a reasonable period maintain, preserve, and archive documents and correspondence, including but not limited to letters, emails, drafts, memoranda, invoices, reports and proposals that pertain to or are within the subject matter jurisdiction of the official’s duties (as defined by the open government commission), and shall disclose all such records in accordance with this chapter.

(b) Any email that is created or received in connection with the transaction of public business and which (1) the department or office retains as evidence of its activities, or (2) relates to the legal or financial rights of the city or of persons directly affected by the activities of the city is a public record. The standard for determining if email is a public record that must be retained is identical to the standard that applies to any document. See California Government Code Section 7920.530, or its successor. If an email must be retained, it should be printed out and the hard copy retained in the appropriate file unless the department or office can reliably retain and retrieve all email in electronic format.

(Ord. No. 2008-11, 11-17-2008; Ord. No. 2023-10, §§ 2 (Exh. A), 4, 11-20-2023)

(a) During the annual filing period as required by California Code Section 87500, the city clerk as filing officer shall conduct a prima facie review of all FPPC statement of economic interests filings of all officials required to file under California Government Code Section 87200, and all designated employees required to file under the city’s conflict of interest code. The city administrator shall review the filing submitted by the city clerk.

(b) Not later than April 15th of each year, the city clerk shall publish all statement of economic interests filings onto the city’s official website. The city clerk shall also maintain on the city’s website all prior years’ filings of sitting city council members, the mayor, the city administrator, and the city attorney and members of the planning commission so that these required disclosures are readily available to the public for inspection.

(Ord. No. 2014-03, § 1, 4-7-2014; Ord. No. 2023-10, § 2 (Exh. A), 11-20-2023)