When Is It OK To Hold Public Meetings In Secret? The Coliseum Case

The ultimate reason for government openness is to allow the public to keep their public officials accountable.  It's a value I hold strong here at this blog.  This is a story about a government agency not being open. 


The other day I had a photo and personal comments on the LA Coliseum.  Today, the LA Times has

an article enttitled: 

"Coliseum incurred big expense in trying to keep USC lease talks secret"

It begins:  

The Los Angeles Memorial Coliseum was flirting with insolvency, but that didn't stop its government overseers from incurring hundreds of thousands of dollars in legal expenses to keep secret their deliberations on a new long-term lease for the stadium.

Starting with the US Freedom of Information Act and going through various state and municipal open records acts, there is usually an exception for private negotiations.  If you're bargaining over a lease, it generally isn't a good idea to let the other side know what your last best offer is.

But, apparently, in this situation, the two sides were not adversarial.  The Coliseum Commissioners, according to the article, 

"The emails, along with others obtained earlier under the California Public Records Act, show the Coliseum's top executive granting nearly every wish USC had for the negotiations and then helping the university build and maintain political support for the lease."

About the Coliseum

Background from Wikipedia (which reflects the agreement that was negotiated in secret):

The Los Angeles Memorial Coliseum, colloquially known as just "The Coliseum", is a large outdoor sports stadium in the University Park neighborhood of Los Angeles, at Exposition Park, that is home to the Pacific-12 Conference's University of Southern California Trojans football team. It is the largest football stadium in the Pac-12.
It is located next to the Los Angeles Memorial Sports Arena in Exposition Park, across the street from the University of Southern California (USC). The stadium is jointly owned by the State of California, Los Angeles County, and the City of Los Angeles, and is managed and operated by the University of Southern California. The Los Angeles Memorial Coliseum Commission, which has board members drawn from the three ownership interests, provides public oversight of the master lease agreement with USC. Under the lease the University has day-to-day management and operation responsibility for both the Coliseum and Sports Arena. The 98-year lease took effect on July 29, 2013 and was signed by the parties on September 5, 2013. The agreement requires the University to make approximately $100 million in physical improvements to the Coliseum, pay $1 million a year rent to the state of California, maintain the Coliseum’s physical condition at the same standard used on the USC Campus, and assume all financial obligations for the operations and maintenance of the Coliseum and Sports Arena Complex.^[7][8]

Disclosure versus Confidentiality

There are some legitimate reasons not to release some government information.  Individuals who cooperate with the government and legitimately fear retaliation should be protected.  Say, when there is gang violence or shakedowns of shop owners, and someone offers help to the police, that person's identity should be protected if it's likely there will be retaliation.  And businesses who provide the government environmental or safety information about their company, should have trade secrets that are involved, kept secret so their competitors can't use it to their advantage.  Without such protections, businesses are less likely to cooperate, just as in the previous example, witnesses are less like to cooperate.

The 1966  Federal Freedom of Information Act sets out a list of exemptions using the kind of reasoning I've outlined above. 

Exemption 1: Information that is classified to protect national security.  The material must be properly classified under an Executive Order.
Exemption 2: Information related solely to the internal personnel rules and practices of an agency.
Exemption 3: Information that is prohibited from disclosure by another federal law. Additional resources on the use of Exemption 3 can be found on the Department of Justice FOIA Resources page.
Exemption 4: Information that concerns business trade secrets or other confidential commercial or financial information.
Exemption 5: Information that concerns communications within or between agencies which are protected by legal privileges, that include but are not limited to:

1. Attorney-Work Product Privilege
2. Attorney-Client Privilege
3. Deliberative Process Privilege
4. Presidential Communications Privilege

Exemption 6: Information that, if disclosed, would invade another individual's personal privacy.
Exemption 7: Information compiled for law enforcement purposes if one of the following harms would occur.  Law enforcement information is exempt if it: 

• 7(A). Could reasonably be expected to interfere with enforcement proceedings
• 7(B). Would deprive a person of a right to a fair trial or an impartial adjudication
• 7(C). Could reasonably be expected to constitute an unwarranted invasion of personal privacy
• 7(D). Could reasonably be expected to disclose the identity of a confidential source
• 7(E). Would disclose techniques and procedures for law enforcement investigations or prosecutions
• 7(F). Could reasonably be expected to endanger the life or physical safety of any individual

Exemption 8: Information that concerns the supervision of financial institutions.
Exemption 9: Geological information on wells.

Ultimately, we're weighing the short term public interest in knowing versus the long term public interest in having people cooperate with law enforcement and other government officials.   We have to find the balance between keeping secret or revealing certain kinds of information.   We want businesses to voluntarily provide information (including sometimes trade secrets) to government agencies that monitor them.  We want clients to be honest with their attorneys.  We want presidential advisers to be candid with their policy advice.  If allowing that information to be confidential, and it's not critical to government accountability, then no problem.  But sometimes the public needs to know some of that info in order to evaluate public decisions. 

The public interest is so important that California makes it the test in some cases of disclosure or not.

"In order to withhold a record under section 6255, an agency must demonstrate that the public’s interest in nondisclosure clearly outweighs the public’s interest in disclosure. A particular agency’s interest in nondisclosure is of little consequence in performing this balancing test; it is the public’s interest, not the agency’s that is weighed. This “public interest balancing test” has been the subject of several court decisions. In a case involving the licensing of concealed weapons, the permits and applications were found to be disclosable in order for the public to properly monitor the government’s administration of concealed weapons permits.

The last example, of course, highlights the reason, in a democracy, for transparency:  the public's ability to monitor the government's decisions and actions.  They give a number of other examples of cases where they ruled for disclosure because the public interest was so strong. 


The problem with secrecy

But whenever there is secrecy, there is the temptation to abuse that secrecy.

In the Coliseum case it appears the secrecy was used to hide how the public's representatives (the coliseum commissioners) gave USC all the advantages at tax payers' expense.  (I say apparently because the LA Times was part of the lawsuit to get the information.  They have a vested interest in showing that their lawsuit was legitimate.  I've no evidence their report is biased.  Evidence in their favor is the court's decision to make the data public.  But we should take nothing for granted.) 

The public interest is so important that, California makes it the test in some cases of whether to disclose or notn-disclosure.

"In order to withhold a record under section 6255, an agency must demonstrate that the public’s interest in nondisclosure clearly outweighs the public’s interest in disclosure. A particular agency’s interest in nondisclosure is of little consequence in performing this balancing test; it is the public’s interest, not the agency’s that is weighed. This “public interest balancing test” has been the subject of several court decisions. In a case involving the licensing of concealed weapons, the permits and applications were found to be disclosable in order for the public to properly monitor the government’s administration of concealed weapons permits.

The last example, of course, highlights the reason, in a democracy, for transparency:  the public's ability to monitor the government's administration. 

My sense is that negotiation with an adversary is a good reason to keep information secret - though not necessarily the negotiation meetings.  In any case, after the negotiation is done, there's no reason not to make all the proceedings public. 

But, in this Coliseum case, the participants definitely did not want people to know what they did.

The question now is, if the public representatives do not work for the public in good faith, shouldn't that invalidate the agreement? 


Sham public hearings

USC Senior Vice President Todd Dickey, who also received the email, responded: "If you want us to hold an open house … and listen to 500 people speak for 5 hours, and maybe answer a few questions, I guess we can do that, but I see no value in that at all."

I think this attitude is pretty common among people used to having power and getting their way.  USC is a private university that has raised $3 billion in its current campaign to raise $6 billion.  The senior vice president is pretty used to dealing with very wealthy people who tend to get their way.  Some examples of the kinds of people he probably works with comes from the USC fundraising page:

• An anonymous $20 million gift will endow student support at the USC Dornsife College of Letters, Arts and Sciences, the USC School of Social Work and the USC Marshall School of Business. 
• Selim Zilkha has pledged a gift of $5 million to the Keck School of Medicine of USC to fund a new endowed chair in Alzheimer’s disease research. 
• A $1 million donation by USC Dornsife alumni has established the Linda and Harlan Martens Endowed Director’s Chair for the USC-Huntington Early Modern Studies Institute.

Not only is the top of the USC hierarchy used to dealing with wealthy folks, they also can get those folks to lobby for them.

"Some of the emails the government sought to keep under wraps show that the stadium officials and USC collaborated in securing backing for the lease in City Hall and Sacramento.
In one exchange, Sandbrook asked Dickey if he knew an alternate commissioner who represented then-Mayor Antonio Villaraigosa and might attend a lease meeting.
"Damn, no I don't," Dickey replied. "We need to get to the Mayor so he can encourage her to support the lease."
After receiving a report that Villaraigosa was miffed at not receiving advance notice on the lease terms, Dickey wrote to Sandbrook and then-commission President David Israel, that USC President Max Nikias and others had been lobbying the mayor:
"Tom Sayles has been in constant contact with the Mayor's office trying to get them to support the term sheet," Dickey said in the correspondence, referring to a USC administrator. "We even had President Nikias call the Mayor and he got him today."
Villaraigosa's two representatives on the commission voted for the lease.

And they can reward those who cooperate with them:

The former mayor, now a USC faculty member, did not respond to interview 

I'm not saying this was a quid pro quo deal.  The former mayor certainly has a lot of knowledge to share with students and he makes USC's diversity stronger.  But there is the appearance of something fishy here. And, for my own disclosure, I would add that I graduated from what is now the school he was appointed to.


What's my point? 

This isn't a gossip blog.  When I post stories about specific events it's usually to either document what's happening and/or to make some larger point.  Since the LA Times has already done the documentation here, I need to put this in a larger perspective.  So, my points probably boil down to:

1.   The openness of public information is a cornerstone of democracy.  Without it, there is no way to keep public officials accountable.
2.   When information is not disclosed, people should be suspicious and should demand its release.  
3.  People everywhere should remember what the secret emails reveal in contrast to the public statements:

private communication	"If you want us to hold an open house … and listen to 500 people speak for 5 hours, and maybe answer a few questions, I guess we can do that, but I see no value in that at all."
public communication	"To support a public and transparent process, the Los Angeles Memorial Coliseum Commission and the University of Southern California are jointly releasing a list of points of agreement that will serve as the basis for continuing negotiations on a modified lease between USC and the Los Angeles Memorial Coliseum Commission."

Both those quotes come from the emails that the LA Times lawsuit revealed.



THEN, I hope people apply this to their own local and state officials.  Recognize when you hear people proclaim their support of transparency, especially after opposing requests for more openness,  that what they actually said in private was probably the opposite. 

I think about how the DOWL Engineering group has held public hearing after public hearing with fancy charts and how they took public testimony which showed over and over again that the vast majority of the people were opposed to extending Bragaw through the University.  Yet despite that testimony Anchorage's mayor managed to work a last minute deal to get $20 million to put the road through anyway.  And then we hear it will actually cost yet another $20 million.  The public process was a total sham.  It was only to meet legal requirements.  

I think about how the Anchorage Assembly allowed weeks and weeks of testimony on an ordinance to add gays and lesbians to our local anti-discrimination ordinance.  People in  were even bused in from Matsu to testify against the ordinance.  And the hearings continued long enough that we changed mayors - from one who said he'd sign the ordinance to one who vetoed it.

And then that same mayor exclaimed about changes in the Labor Ordinance, "This was one of the most open, comprehensive public processes."   Sounds a lot like the qote above.  Fortunately, the audience at the Assembly meeting that night was heavily labor and they knew the truth.