Let the Sun Shine In – Improving Disclosure Requirements

The Mercury News has a series on the need for better disclosure of government operations in San Jose. They asked for reader comment, and we sent in the email below.


Dear Mercury News editors:

I’m very glad to see this effort by your newspaper to increase disclosure and “sunshine” in government operations. In our work as an environmental organization involved in local land use issues we have seen two specific disclosure problems in our field. The first is general, and the second is specific to San Jose.

The general problem is the shift by governments from distributing environmental documents from paper form to electronic form, either downloadable from the Internet or sent out as CDs. While electronic distribution is fine as an addition to paper distribution, the public no longer gets a paper copy of EIRs in increasing numbers of cases. It’s extremely hard to cross-reference information in electronic-only format. This change reduces the public’s ability to use the information, or it forces us to spend our own money printing out documents that are the responsibility of the developers who apply for permits.

A better solution is to continue to make paper versions of EIRs and other environmental documents available to those who request them. A nominal fee of several dollars would discourage people from requesting documents that they don’t actually need. This costs taxpayers nothing in most cases, as it is the responsibility of developers to pay for the costs of environmental review.

(As an aside, the electronic documents should also be in searchable formats, like Word documents. The Adobe PDFs that are usually used often cannot be searched, in whole or in part. Agencies also often post the EIRs broken up into many different chapters, which can be extremely annoying to download. They should add the option of downloading the entire document at once.)

The second, San Jose-specific problem is its retention of the archaic and biased system that allows developers to prepare the preliminary version of environmental documents that may then be adopted by San Jose as its own documentation. While technical reports or architectural drawings may be appropriately prepared by an applicants’ experts, Draft Environmental Impact Reports require judgment and analysis that should belong to the agency, not a biased developer.

Handing developers control over preliminary documents creates two disclosure problems. First, even the City does not know what went in and what was left out of that preliminary document – effectively, the practice means San Jose is hiding information from itself. Second, the City loses the ability to disclose preliminary documents and information that developers fail to turn over. While San Jose may not be obligated to turn over this information on request, if San Jose prepared it instead of developers, it would have the option to do so if it chose. Developer control of preliminary documents hides information from the City itself, and from the public. No wonder that most jurisdictions in the Bay Area have abandoned this developer-controlled process.

There are other disclosure problems, but these two are clearly among the most important.

Brian Schmidt

Brian Schmidt
Santa Clara County Legislative Advocate
Committee for Green Foothills

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