Chapter 1.40
PUBLIC RECORDS
Sections:
1.40.010 Retention and availability of records.
1.40.020 Disclosure, copying and mailing of agenda and agenda packets.
1.40.030 Tape or film record of board or committee meeting.
1.40.040 Copies of public records – Fees.
1.40.050 Records withheld from public inspection.
1.40.060 Exceptions to withholding records.
1.40.070 Exceptions to waiver by disclosure.
1.40.080 Information and data made separately available to government agencies.
1.40.090 Alternative procedures.
1.40.010 Retention and availability of records.
A. Retention of Records. The District shall retain records in accordance with statutory requirements and with record retention schedules approved from time to time by the Board. Except for those records that are expressly required by law to be filed and preserved, the District may destroy or dispose of any record in accordance with statutory requirements and record retention schedules. The District may reproduce the record electronically using a trusted system that accurately reproduces the original thereof in all details and that does not permit additions, deletions, or changes to the original document, and may thereafter destroy or dispose of any record in accordance with the preceding sentence.
B. Authority for Regulations – Availability of Records. The regulation codified in this chapter is adopted pursuant to, and is subject to the provisions of, the California Public Records Act (California Government Code Section 6250 et seq.). This chapter sets forth the procedures to be followed for the inspection of public records of the District and for safeguarding the confidentiality of the records of the customers and personnel of the District. Subject to the procedures set forth in California Government Code Sections 6253 and 6253.1, and except as otherwise expressly provided in this chapter, any public records of the District shall be available for inspection by any person at all times during the regular hours of the office of the District where the record is maintained. [Ord. 327, 2010.]
1.40.020 Disclosure, copying and mailing of agenda and agenda packets.
A. Agenda of Board or Committee Meeting. One copy of an agenda summary sheet for a board or committee meeting may be picked up at the District office, or, upon receipt of a written request, each such agenda summary sheet shall be mailed by the District to the requesting party at no charge for the remainder of the calendar year. The list of such requests will be purged in accordance with the District’s record retention policy, so such requests must be renewed each January.
B. Individual Agenda Items. One paper copy of the materials for an individual agenda item (but only where the materials for the agenda item are less than 25 pages long) from an agenda packet will be provided to a person requesting it at the District’s office or, upon receipt of a written request, mailed to the person requesting it at no charge. A copy of an agenda item over 25 pages, or of any subsequent or additional copy of any individual agenda item(s), will be provided only after payment of the fees established as set forth in DSRSDC 1.40.040, Copies of public records – Fees, plus actual mailing costs.
C. Agenda Packets. Each agenda packet shall be subject to inspection at the District office pursuant to the California Public Records Act. Any person may request that a copy of the entire agenda packet of any meeting of the Board or a committee be mailed to that person. A copy will be provided only after payment of the fees established as set forth in DSRSDC 1.40.040, Copies of public records – Fees, plus actual mailing costs.
D. Transmission by Electronic Means. A person may obtain electronic copies of selected District documents from the District’s website free of charge. A person may submit a written request that materials described in subsections (A), Agenda of Board or Committee Meeting, through (C), Agenda Packets, of this section be sent by facsimile transmission or by e-mail instead of by mail; upon receipt of such a request, and payment of the fees established as set forth in DSRSDC 1.40.040, Copies of public records – Fees, plus the actual costs of transmission, the District, in its sole discretion, may send the requested materials by facsimile transmission or by e-mail to the person making the request.
E. Time for Mailing or Transmission by Electronic Means. Any materials to be transmitted by electronic means pursuant to subsection (D) of this section, Transmission by Electronic Means, or mailed pursuant to subsections (A), Agenda of Board or Committee Meeting, through (C), Agenda Packets, of this section shall be sent during regular business hours and as close as reasonably possible, under the circumstances, to the time the agenda is posted or distributed to a majority of the members of the Board, whichever occurs first.
F. Effect of Nonreceipt. As specified in Section 54954.1 of the California Government Code, the failure of any person to receive agenda materials shall not constitute grounds for invalidation of actions taken at the meeting for which the materials were not received in a timely manner. [Ord. 305, 2004; Ord. 327, 2010.]
1.40.030 Tape or film record of board or committee meeting.
Pursuant to California Government Code Section 54953.5(b), any tape or film record of an open and public meeting made by or for the District shall be retained for no less than 30 days, and any such tape or film record that has not yet been erased or destroyed may be inspected at the District office pursuant to the California Public Records Act without charge on a video or tape player to be made available by the District. [Ord. 305, 2004; Ord. 327, 2010.]
1.40.040 Copies of public records – Fees.
Except where a request is unduly burdensome, the fees for copying public records shall be the direct costs of duplication in the amounts established by separate ordinance or resolution duly adopted from time to time by the Board of Directors. For public records that can, in the discretion of the District, most efficiently be copied by a commercial copy service, the fees charged by the copy service shall be the actual costs of duplication. A person who submits a written request that copies of the public records be mailed to him or her, or that the public records be sent by electronic means, prior to such mailing or electronic transmission shall be required to pay the cost of providing that additional service in addition to the fees described in the foregoing provisions of this section. [Ord. 305, 2004; Ord. 327, 2010.]
1.40.050 Records withheld from public inspection.
Except as provided in DSRSDC 1.40.060, Exceptions to withholding records, or DSRSDC 1.40.090, Alternative procedures, or in some other provision of this code that is more specific than this section, the following records will be withheld from inspection and copies thereof shall not be provided:
A. Customer records falling into the following categories:
1. Name, credit history, utility usage data, home address, or telephone number.
2. Plant production data, and similar information relating to utility systems development, or market reports, that are obtained in confidence from a customer who (a) specifically requests confidentiality in writing, and (b) demonstrates to the satisfaction of the General Manager that such information is entitled to exemption from disclosure under the California Public Records Act.
3. Information and data obtained from or pursuant to reports, surveys, industrial wastewater discharge permit applications, industrial wastewater discharge permits, monitoring programs, and from the District’s inspection and sampling activities of or pertaining to a customer who (a) specifically requests confidentiality thereof in writing, and (b) demonstrates to the satisfaction of the General Manager that such information is entitled to exemption from disclosure under the California Public Records Act. The General Manager shall make the final determination regarding such exemption. Nothing in the preceding two sentences shall be construed to prevent the District from proceeding under DSRSDC 1.40.090, Alternative procedures, and, notwithstanding the foregoing, wastewater constituents and characteristics will not be withheld as confidential information.
B. Personnel records.
C. Records pertaining to pending litigation, including records prepared for use in anticipated litigation, to which the District is a party or pertaining to claims against the District made pursuant to Division 3.6 of Title 1 of the California Government Code (Section 810 et seq.), including without limitation records protected by the attorney workproduct privilege, until such litigation or claim has been finally adjudicated or settled.
D. Preliminary drafts, notes or intra-District memoranda which are not retained by the District in the ordinary course of its business.
E. Test questions, candidate scores, names of candidates, qualifications of candidates, and similar data used in employment examinations and other recruitment activities.
F. Appraisals, engineering estimates and evaluations made for or by the District relative to the acquisition of property, or to supply or construction contracts, until the property is acquired or the contract executed, subject to the provisions of laws relating to eminent domain.
G. A document prepared by or for a state or local agency that assesses its vulnerability to terrorist attack or other criminal acts intended to disrupt the public agency’s operations for distribution or consideration in a closed session.
H. Critical infrastructure information, as defined in Section 131(3) of Title 6 of the United States Code, that is voluntarily submitted to the California Office of Homeland Security for use by that office, including the identity of the person who or entity that voluntarily submitted the information. As used in this subdivision, “voluntarily submitted” means submitted in the absence of the office exercising any legal authority to compel access to or submission of critical infrastructure information. This subdivision shall not affect the status of information in the possession of any other state or local governmental agency.
I. Any other records the disclosure of which is exempted or prohibited by federal or state law, including, without limitation, matters privileged under provisions of the California Evidence Code. [Ord. 298, 2003; Ord. 327, 2010.]
1.40.060 Exceptions to withholding records.
Any public record of the District that may be withheld from inspection under the provisions of DSRSDC 1.40.050, Records withheld from public inspection, may nevertheless be disclosed and copies thereof furnished on any of the following conditions:
A. The Board of Directors, after notice and public hearing, finds and determines, by a 2/3 vote of the Directors present at the meeting, or, if less than 2/3 of the Directors are present, an unanimous vote of those Directors present, that the public interest to be served by disclosing the record (including records described in subsections (B) and (D) of this section) clearly outweighs the public interest in withholding it. Notice of the public hearing shall be posted at least 10 days prior to the hearing at the District’s administration center and at two or more conspicuous places within the District and shall be published once at least 10 days prior to the hearing in a newspaper published in the District.
B. In the case of customer records, the name, utility usage data, and address of customers of the District shall be made available to the person to whom the information pertains or an agent or authorized family member thereof upon written request, and may be made available upon written request as follows:
1. To an officer or employee of another governmental agency when necessary for the performance of its official duties.
2. Upon the request of a law enforcement agency relative to an ongoing investigation.
3. Upon determination by the District that the customer who is the subject of the request has used utility services in a manner inconsistent with applicable local utility usage policies.
4. Upon determination by the District that the customer who is the subject of the request is an elected or appointed official with authority to determine the utility usage policies of the District or another local agency; provided, that the home address of an appointed official shall not be disclosed without his or her consent.
C. Except to the extent that the District determines otherwise pursuant to DSRSDC 1.40.050(A), customer records consisting of (1) name, credit history, utility usage data, home address, or telephone number, (2) plant production data, and similar information relating to utility systems development, or market reports, that are obtained in confidence, or (3) information and data obtained from or pursuant to reports, surveys, industrial wastewater discharge permit applications, industrial wastewater discharge permits, monitoring programs, and from the District’s inspection and sampling activities of or pertaining to a customer shall be, and are, public records subject to disclosure.
D. Notwithstanding any provision hereof to the contrary, pursuant to the federal pretreatment regulations (40 CFR Section 403.8(f)(2)(vii)) the District shall, without further notice, comply with the public participation requirements of 40 CFR Part 25. Therefore, the District shall publish annually, in a newspaper of general circulation that provides meaningful public notice within the District’s service area, the name of any industrial/commercial user determined to be in significant noncompliance with applicable categorical pretreatment standards, national pretreatment standards or pretreatment standards or requirements at any time during the prior 12 months. Instances of significant noncompliance are user violations which meet one or more of the following criteria:
1. Violations of Wastewater Discharge Limits.
a. Chronic Violations. Chronic violations are defined as those in which 66 percent or more of the measurements for the same pollutant exceed (by any magnitude) the daily maximum limit or the average limit or any other numeric pretreatment standard or requirement, including instantaneous limits, as defined by 40 CFR Section 403.3(1) for the pollutant during a six-month period.
b. Technical Review Criteria (“TRC”) Violations. TRC violations are defined as those in which 33 percent or more of the measurements for the same pollutant during a six-month period equal or exceed the product of the daily maximum limit or the average limit for the pollutant or other numeric pretreatment standard or requirement including instantaneous limits, as defined by 40 CFR Section 403.3(1), multiplied by the applicable TRC factor during a six-month period. The TRC factors are 1.4 for BOD, TSS, fats, oil and grease and 1.2 for all other pollutants, except pH.
c. Any other violation(s) of an effluent limit or other pretreatment standard or requirement as defined by 40 CFR Section 403.3(1) (including but not limited to average or daily maximum, long-term average, instantaneous limit, or narrative standard) which the District determines has caused, alone or in combination with other discharges, interference or pass-through, or which has endangered the health or safety of District personnel or the public.
d. Any discharge of pollutant(s) that has caused imminent danger to human health, safety or welfare or to the environment, or that has resulted in the exercise of the District’s emergency authority to halt or prevent such a discharge.
2. Violation of Compliance Milestones. Failure to meet, within 90 days after the compliance date, compliance schedule milestones contained in an industrial wastewater discharge permit or enforcement order for starting construction, completing construction, or attaining final compliance.
3. Failure to Provide Reports. Failure to provide reports for compliance schedules, self-monitoring data, or categorical standards (baseline monitoring reports, 90-day compliance reports, and periodic reports) within 45 days from the date the reports are, or related information is, due.
4. Failure to Report Accurately. Failure to report accurately and promptly any noncompliance.
5. Other Violations. Any other violation or group of violations which the District concludes will adversely affect the operation or implementation of the District’s pretreatment program or the objectives of this chapter.
E. In the case of personnel records, the officer or employee to whom the records relate consents in writing.
F. A valid warrant, subpoena, or court order seeking the record (including records described in subsections (B) and (C) of this section) is duly served upon the District or the custodian of the record. [Ord. 298, 2003; Ord. 327, 2010.]
1.40.070 Exceptions to waiver by disclosure.
Pursuant to California Government Code Section 6254.5, the disclosure of a public record which is otherwise exempt from disclosure to any member of the public does not constitute a waiver of the exemption if the disclosure was:
A. Made pursuant to the Information Practices Act (commencing with Section 1798 of the Civil Code) or discovery proceedings.
B. Made through other legal proceedings or as otherwise required by law.
C. Within the scope of disclosure of a statute which limits disclosure of specified writings to certain purposes.
D. Not required by law, and prohibited by formal action of the Board of Directors.
E. Made to any governmental agency which agrees to treat the disclosed material as confidential. [Ord. 327, 2010.]
1.40.080 Information and data made separately available to government agencies.
The portions of information and/or data that are determined by the District pursuant to DSRSDC 1.40.050(A)(3) to be exempt from disclosure to the public shall nonetheless be made available to other governmental agencies upon their request for uses related to this chapter, the District’s National Pollutant Discharge Elimination System (NPDES) permit, or for purposes otherwise within the law enforcement jurisdiction of such agencies, including administrative and judicial proceedings in pursuance thereof.
Such information and/or data thus determined to be exempt from disclosure shall not be transmitted or released to any person or entity, other than the Environmental Protection Agency, the State of California Water Resources Control Board, the San Francisco Bay Regional Water Quality Control Board, or other governmental agencies acting within their law enforcement jurisdiction, unless 15 days’ advance notice of the intended transmittal or release is given to afford the customer a reasonable opportunity to obtain a protective order or unless the District elects to proceed in accordance with the procedures in DSRSDC 1.40.090, Alternative procedures. [Ord. 298, 2003; Ord. 327, 2010.]
1.40.090 Alternative procedures.
A. In the event the District receives a request under the California Public Records Act (California Government Code Section 6250 et seq.) for any record of the sort described in DSRSDC 1.40.050(A)(2), (A)(3), (D), (E), (F) and (I), Records withheld from public inspection, and it does not appear to the General Manager that such information is entitled to exemption from disclosure under the California Public Records Act, the District shall give, to a person known by the District to be affected thereby, written notice of such request 15 days prior to the District’s response to the request in order to afford such affected person a reasonable opportunity to obtain a protective order prohibiting the District from disclosing the record.
1. The District shall have no obligation to proceed in accordance with this subsection unless the person seeking a protective order shall agree in writing to indemnify and hold the District harmless against any relief that may be sought by the party requesting such records, which indemnity shall include all costs of defending against such relief, either in the lawsuit seeking a protective order or any separate lawsuit brought by the party requesting such records, whether the relief sought is to be held harmless against costs or fees thereby incurred, to compel disclosure of such record, or any other relief, and to bear any other expenses for which the District would otherwise be liable as a result of such lawsuit.
2. Nothing in this chapter shall be construed to require the District to follow either of the alternatives identified in this section or to withhold any record the disclosure of which is required by law.
B. With respect to information and data obtained from or pursuant to reports, surveys, industrial wastewater discharge permit applications, industrial wastewater discharge permits, monitoring programs, and from the District’s inspection and sampling activities of or pertaining to a customer, the customer to whom it pertains may request that such information and/or data be made available to the District for its review at the customer’s facility in lieu of transmittal or delivery thereof to the District’s offices. The District shall have no obligation to proceed in accordance with this subsection unless the customer demonstrates to the satisfaction of the District that (1) the information and/or data is proprietary and exempt from disclosure, (2) this alternative procedure is necessary or appropriate, and (3) this alternative procedure will not prevent the District from properly carrying out the objectives of this chapter. [Ord. 298, 2003; Ord. 327, 2010.]