Beginning shortly after the Mountain Fire, concerned citizens began asking the Town Crier for information as to the origin and cause of the blaze that cost an estimated $24 million of taxpayers’ money and caused thousands to evacuate their homes — and some even to lose them. People wanted to know who was at fault for the fire and who was responsible for the damages.
But in the fall of last year, their questions began to change.
As this writer informed attorney David Wiseman, in-house counsel for Cal Fire, the questioning turned to “Why is Cal Fire covering this up?” It was obvious Cal Fire knew a lot more than it was releasing to the public, given page after page of wholesale redactions in its reports. “If they know more about how the fire happened, why are they withholding it from us?” was the substance of the new questions being asked.
Since last fall, the questions have become more pointed: “Is somebody in Cal Fire being paid off to cover this up? And how high up in Cal Fire does this go?” is a fair representation of the sharper inquiries.
Attorney Wiseman has assured this writer that none of that is true. But if it were, how would he know?
He wouldn’t. And he’d be saying the same things he’s saying now.
The exemption of Government Code section 6254, subdivision (f), is discretionary, not mandatory. “This section shall not prevent any agency from opening its records concerning the administration of the agency to public inspection unless disclosure is otherwise prohibited by law.” Certainly, Cal Fire’s administrative duties include the investigation of fires within its jurisdiction — their origins and their causes. Consequently, nothing prevents Cal Fire from opening its records regarding the origin and cause of the Mountain Fire. Nothing requires Cal Fire to claim an exemption against the release of this information.
Cal Fire claims it is not disclosing this information because it may yet decide to pursue criminal or civil litigation. But there is an express exemption for records pertaining to a litigation — section 6254, subdivision (b) — and that exemption requires that at the time the records are made the litigation must already be filed — not just be a future possibility. And existing records do not somehow become exempt after the litigation is filed. (Gov. Code § 6254, subd. (b); Fairley v. Superior Court (1998) 66 Cal.App.4th 1414; 71 Ops.Cal.Atty.Gen. 235 (1988).)
Consequently, by invoking subdivision (f) because of the possibility of future litigation, Cal Fire is attempting to do indirectly that which it cannot do directly.
Many people want to know who is responsible for the loss of their homes and other structures, as well as trees and other vegetation on their property. These people have only about 14 more months within which to file lawsuits to recover their damages.
And thousands more people want to know whose actions caused the evacuation of their homes that week in July 2013.
It’s not that Cal Fire doesn’t know any more than it has revealed. We know it does because a year ago it released an extensive report that was redacted — i.e., blacked out — in the extreme.
The important question is “Why?” Why does Cal Fire want to keep its investigation reports secret simply because it might file litigation? Once the litigation is filed, the reports will be discoverable by the other side anyway. So what is it that makes it important to Cal Fire to keep its reports secret in the meantime.
Who is benefiting by this delay? The manufacturer of a part? The installing electricians? The caretakers of the property? The property owner who is responsible for the actions of his employees? Someone in Cal Fire?
So what is it that Cal Fire doesn’t want to be seen? And by whom? And why? And how does this secrecy and delay somehow help Cal Fire — or somebody in it?
Jack Clark
Co-publisher of and general counsel to the Town Crier