Public Comment

New: Freedom of Information and its Loopholes

By Steve Martinot
Sunday December 09, 2012 - 09:13:00 PM

Freedom of information is supposed to represent transparency in the political process. But it brings with it an opaqueness. Development and urban improvement are supposed to represent "progress," but when they represent a top-down process that minimizes people's participation, that progress brings with it a regress.

The context for this rumination is a small set of short streets at the corner of Shattuck and Rose. Some local residents have approached the city manager and a couple of councilmembers with requests of information about plans and policies for this quaint little area. Some requests were met, others not. But it seems there were some secret, or at least unpublicized meetings last September between the city manager and the North Shattuck BID, to start changing the Shattuck-Rose neighborhood a bit.

Two questions lurk over the process of information requests from government, like buzzards on a bare tree limb, looking down at what will possibly be their next meal. The first is, did the government officials send all that they had that would fulfill the request, or was something withheld, for whatever reason, like evidence withheld by the police from the defense in a trial? Second, why do we have to go through this request process at all? Why isn't the information on all policy matters overtly present already, in the name of transparency? 

Indeed, isn't the Brown Act supposed to open all such things to public scrutiny, without having to rely on an official's non-withholding? The Brown Act has a loophole. Are you surprised? We'll get to it in a minute. 

First, a little history. Over the years, there have been, off and on, a number of attempts to develop a plaza in the Shattuck and Rose area, where the farmers market is on Thursdays. This goes back to 2001. The plaza idea proposes to close some streets, change the parking arrangement, pave, pave some more, change the zoning, pave a few other things, get rid of a few trees, plant some large flowerpots, and tell everyone how much more congenial the ability to hang out in this area would become. With a few intervening years of surcease here and there, this has been a perennial visitation to the neighborhood. 

Needless to say, there is a growing coterie of activists, immersed in a neighborhood association called LOCCNA (Live Oak Codornices Creek NA) that consistently takes umbrage at this prospect. (Don't worry, the plaza idea also has a few acolytes.) And so, like a scene out of "High Noon," as developers, or the BID, or the city make there appearance at one end of town, these activists step to the middle of the street, and make a showdown, ready to defend a style of life, the character of its streetscorners, and of its places to hang out. 

After all, the issue isn't just paving and flower pots. It’s a defense of time itself. The character of a neighborhood is something that evolves. It cannot be built. Only buildings can be built. But people live in a style and character of residency that they themselves participate in bringing about. The stores, restaurants, cafes, grassy places, are given meaning, stability, and enhancement because residents use them, made them memorable, held meetings there, and so on. One thing that disrupts this neighborhood character is money that does what will be profitable for it, rather than what will harmonize with the social environment. There is still a roaring animus at what sealed the fate of Black Oak Books, a very important dimension of the character of the neighborhood, which got driven to close by rent gouging, and which facility still remains empty after four years. 

Development always tends to warp the character of a neighborhood because it must destroy in order to build. It can decriminalize that destruction by calling it progress, but when it does this without consultation (not just hearings, but dialogue) with the people affected by this (de/con)struction, we must ask, progress for whom? Generally, it is progress for someone's investment portfolio, but not for the places and emporia that shut down and are left empty by the loss of business and availability incurred during the destructive phase. Jackhammers are famous for closing a block, a testiment to the marginal existence of what is not "big corporate." The process of making an area more congenial to hanging out tends to destroy the social environment that makes hanging out there congenial in the first place. 

For many residents, it is not just the rezoning and flowerpots, but the arrogance and impunity of top-down institutions, against which they want democracy and transparency. Without participation in planning, however, all that is left is an FOIA request, to get ready for the next High Noon. 

The last one happened just this past September. A BID proposal (by North Shattuck Association Business Improvement District) for parklets (extending the sidewalk out into parking spaces in front of various emporia to facilitate sidewalk tables and hanging out) was sent to Council, and a councilmember put it on the Consent Calendar, to sidestep even a public hearing. Can you imagine? Its like a backroom deal, hidden in plain sight. (Popular outrage convinced him to take it off.) 

Well, the showdown occurred Sept. 12, at a meeting called by LOCCNA. And the BID representative suggested, probably as an attempt to mollify, that the BID had changed its strategy from proposing a big project like the plaza to working with small incremental steps. Huh? Incremental toward what? 

The purpose of small incremental steps is to make a move that doesn't bring about a showdown. What the FOIA response revealed was that small policy decisions can be made without coming under the Brown Act. If they are small enough, the backroom becomes sufficient venue. There was a meeting between the BID and the City Manager to restripe the parking spaces (diagonal rather than parallel) up in the Shattuck-Rose target zone, without having to go to city council, or hold hearings. That restriping is part of the parklet idea, which is part of … 

The Brown Act says that "meetings" of legislative bodies and government agencies must be open to the public. And it defines "meeting" as a gathering of a majority of members of an entity to discuss matters within that entity's jurisdiction. [Govt. Code section 54952.2(a)] "Meetings" by individual government officials, if they are not a majority of the entity of which they are members, are thus not covered. Under the Brown Act, a few directors of the BID, if less than a majority, can meet with the city manager, and discuss actions that do not have to be public under the Brown Act. It will not be considered a "meeting," though it makes policy. That is a big issue. Because the real issue is the top-down ethic, the ethic of money's impunity, finding and using loopholes. 

Ultimately, the plaza itself is a small issue. It is minor next to the tremendous strife seen over Pacific Steel, its pollution of West Berkeley, its footsy with ICE that threw 200 workers into the street, and its backroom deals with City Council enabling it to avoid anti-pollution requirements in the name of "economic stability." The plaza is a small issue next to the possibility of establishing a bio-synthetic lab at Aquatic Park, or even in Richmond, a lab that will creating life forms, using genomic technology, that have no relation to planetary ecology, and thus have no natural predators, with no foreknowledge on the part of experimenters concerning how to control them (think of the sci-fi nightmare if one got away), in the name of "scientific progress." The plaza is small potatoes next to the impunity of the University in destroying crops planted in its Gill Tract at Marin and San Pablo by "Occupy the Farm," land that was given to the university with the proviso that it be used only for agricultural purposes, and which promise the university was going to violate by opening it to commercial enterprise without the say-so of the neighborhood or the city, or the entire "food sovereignty" movement, under the rubric of "better use of the land." 

The issue of the plaza is not just about shutting down some parking spaces, or paving a median. It is the issue of democracy, and the ability of those affected by a policy to participate in defining the issue about which policy is to be made, articulating it, and then deciding on it. And those two buzzards just sit there waiting for the cultural death dealt by the steamroller of money's impunity to feed them.