Public Comment

Commentary: Freedom of Information — A Sham in Berkeley?

By Laurie Baumgarten
Friday March 14, 2008

On Jan. 7, a neighbor and I requested the city of Berkeley to provide us a copy of all communications regarding the eleven cell antennas scheduled to be installed at 2721 Shattuck Ave. Access to these communications is our right and in accordance with the California Government Code 6251, the Public Records Act. According to this act, we have the right to receive this information within a 10-day period. Instead, I received a letter from City Manager Phil Kamlarz, stating he would need more time because of the inter-departmental nature of the communications. A month later, on Feb.7, I received a second e-mail from him stating that we could finally make an appointment to review the communications.  

There was just one problem: some of the communications were exempt from disclosure. According to Kamlarz under Government Code 6255 e-mails containing notes and comments of city staff which were not prepared in anticipation of public scrutiny need not be disclosed. Does this mean that when our local officials and staff think no one is watching, they can do whatever they want, legal or not?  

The rationale for this position must be that disclosure might hamper the freedom of employees—but freedom from what…freedom to do what? Kamlarz’s e-mail states further that the city has decided that its interest to keep documents secret outweighs the public’s interest in these documents. But since when are the city’s interest and the public’s interest not one and the same? 

To understand Kamlarz’s logic, I applied it to my own experience working as a teacher in the Berkeley Unified School District for over 30 years. I wrote lots of notes to people during that time- notes to principals, to other teachers, to school psychologists, to downtown managers. But I never dropped the mantle of professionalism expected of me in those written communications. I could have been fired if I had. 

Freedom means being able to have open debate about all ideas, even those expressed through informal memos. Freedom does not give people in government the right to commit illegal acts or break the trust of public stewardship. 

If our city did indeed make deals with the developer Patrick Kennedy or Verizon/Nextel or if the city did manipulate the democratic process in any way, then the public has a right to know. Deliberations insulated against public scrutiny too easily become corrupt. 

In his e-mail, Kamlarz goes on to say, “the city is also withholding from disclosure several written communications by electronic mail by the city attorney to city staff…” But, here again there is a problem. Although legal discussion in Council Executive sessions between councilmembers and lawyers are considered privileged and confidential, this same secrecy does not apply to other city staff and their communications. But Kamlarz does not mention the council; he mentions the city staff. Certainly the city staff is not the client. They are supposed to work for us, the taxpayers.  

If the city manager gets to decide what documents can and cannot be seen by the public, then the idea of Freedom of Information is a sham. This arbitrary decision making is reflected elsewhere as well. As I was combing through the documents, I came upon a set of communications that certainly raised my eyebrows. 

On Nov. 16, at 6:18 a.m., a week after the council granted Verizon a permit, Tom Miller, the head of the project, informed city planning staff person, Pamela Johnson, that Verizon wanted to shift some of their antennas 30 feet from the north side of UC Storage to the west side. Verizon wanted to be allowed this modification without re-opening the public hearing process. At 8:15 a.m. the same day, Ms. Johnson informed city planner Debra Sanderson, who has promoted this project from the get-go, that this was a use permit modification and “that yes, they will need to go back to ZAB with public notice.” Sanderson replied at 9:26 a.m., “Yes, indeed!” Then, on Nov. 19, Zach Cowan, assistant city attorney, informed the lawyer for Verizon that instead of a public hearing, the Planning Department would handle this modification administratively. 

No public hearing, no public notification—even though these antennas will now face across Shattuck/Adeline and into Savo Island Cooperative Homes and the Early Childhood Center, which is being rebuilt to house approximately 90 African-American three and four year-olds. Both of these locations are only one block away from UC Storage and within range of possible health risk from cell antenna radiation. 

Over the last year and a half I have submitted, for the public record, several compilations of scientific and epidemiological health studies that indicate adverse health effects from RF radiation emitted from cell phone base stations. This information has been submitted to all councilmembers and to the city clerk at council hearings. 

However none of this information is in the official documents that we were shown. For example, missing is my analysis of the report submitted by Berkeley Health Officer Fred Medrano, in which Mr. Medrano clearly states that more research is necessary before any conclusion regarding the bio-effects from antenna emissions can be reached. Now the only scientific studies that are in the public record are those showing no ill health effects. Is this omission intended to absolve our policy makers from any future guilt or responsibility should these antennas prove to be harmful to our health? 

Let us not forget that the staff of City Hall refused to have cell antennas installed on the top of City Hall, in which case the city could have collected $30,000 a month from telecommunications companies. Instead, city staff shepherded these antennas down to our homes where we spend more time than just the eight-hour working day. But these antennas were never really meant to serve our community. We proved early on that we have excellent coverage. The documents we saw make it clear that the antennas to be installed on the UC Storage building are meant to provide service all the way down Martin Luther King, Jr. Way to Center Street, which includes City Hall. Who knows how far into the hills these antennas are meant to serve? 

Are we being alarmists? Far from it. We neighbors believe in the precautionary principle and in preserving a healthy environment. We believe we have the right to know about all deliberations, informal or formal that went into making all city decisions, including the ones to drop requirements for public oversight when permit specifications were changed. We have the right to know, the whole scoop! 

We hope there is a public interest or land use lawyer out there who will kick in some pro bono legal work for us. We desperately need it. We are very grateful to Anna de Leon who has helped us with legal work so far, totally free and on her own time. In my neighborhood, people can’t pay their taxes, their health care, their food bills, their mortgages or rents, their kid’s college tuitions, and also hire expensive lawyers to protect them from a callous or corrupt local government. Joining the struggle means hard-working people work overtime and do not get a penny for it. In this spirit, we in Berkeley Neighborhood Antenna-Free Union say no to more cell antennas near South Berkeley homes and in all residential areas until definitive studies show that living near them is safe. 


Laurie Baumgarten is a South Berkeley resident. For further information, please contact