California agencies use confidentiality agreements to keep some Bay-Delta science secret | CA Politics 360
California state agencies have quietly been using confidentiality agreements to keep some scientific data and discussions behind the Newsom administration’s updated Bay-Delta plan a secret, raising concerns about transparency in the rule-making process.
The California State Water Resources Control Board is set to vote later this month on the updated Bay-Delta plan, a massive policy proposal that aims to balance water needs for communities and agriculture while protecting fish, wildlife, and the environment in the San Francisco Bay-Sacramento-San Joaquin Delta.
State officials have denied they are hiding anything and maintain the process has been transparent.
The proposed update to the Bay-Delta plan heavily relies on voluntary agreements, deals negotiated between state agencies and major water users, such as farmers. The deals involve larger water users providing water and funding for environmental purposes in exchange for more certainty around their water supply.
“It’s detailed, it’s science-based and outcomes-focused,” California Natural Resources Secretary Wade Crowfoot said at a hearing on the plan in January. “I want to be clear; this has always been and meant to be an inclusive process.”
To support these agreements ahead of the vote, the Water Board released a final scientific report. However, state officials deliberately ensured that some of the science behind the report remained confidential, according to several documents reviewed by California Politics 360.
Eric Buescher, managing attorney for San Francisco-based environmental group Baykeeper, discovered the confidentiality agreement through a California Public Records Act Request. The agreement is between the State Water Board, the California Department of Water Resources, and the Department of Fish and Wildlife. The agreement attempts to prevent the public release of communications between these agencies about the scientific basis report.
“It kept all of those communications between those agencies secret, which basically means it kept the science about water quality and fish biology and the impacts to native fish and wildlife that depend on them secret and out of the public’s eyes,” Buescher said.
He added, “Science is not done in secret. Science thrives based on peer review and being able to replicate analysis and coming up with policies and letting people challenge those.”
Buescher’s group is opposed to the Bay-Delta plan. Records he provided to KCRA 3 show he submitted the open records request on May 8 seeking correspondence between the state agencies regarding the Bay-Delta plan and voluntary agreements.
In a September 18th letter to Buescher closing out his request, Attorney Noah Lesko-Kanowitz stated, in part, some records were withheld because they were subject to the confidentiality agreement.
The confidentiality agreement has been in place since March 30, 2022 and terminates either three years after the conclusion of the Bay-Delta rulemaking process or the conclusion of any litigation challenging the rules brought within three years of the board’s vote to approve the rules.
“If the Water Board is refusing to disclose public records solely because of an agreement with other agencies, that would violate the Public Records Act,” said David Loy, legal director of the First Amendment Coalition. “Public agencies cannot withhold public records unless the records independently qualify for an exemption that is spelled out in the Public Records Act. A confidentiality agreement by itself is not enough.”
“The burden is on these three state agencies to demonstrate why this scientific data needs to be kept confidential,” said Chris Micheli, an adjunct professor at the McGeorge School of Law and long-time California lobbyist.
Critics of the Bay-Delta plan, including Barbara Barrigan-Parilla of the environmental group Restore the Delta, have accused state leaders, including Newsom and Crowfoot, of keeping the science secret for political purposes to ensure the plan’s passage.
“If the plan is so good, then all documents along the way should’ve been made available to the public,” Barrigan-Parilla said. “If we don’t have the basis of the science and the public can’t see that, we can’t have confidence in the decisions being made and the outcomes.”
California Water Board spokesperson Jackie Carpenter defended the confidentiality agreements, stating, “When agencies collaborate on a joint document, it is routine to enter into a common interest agreement to share otherwise confidential information amongst each other. Critically, this agreement protected the agencies’ deliberative process while developing the scientific report.”
“Throughout the process, the Board has demonstrated full public transparency, including publicly acknowledging that the report was being drafted with CDFW and DWR, and responding to Public Records Act requests, which is why this agreement was disclosed to SF Baykeeper under a PRA,” Carpenter said.
Carpenter and other Newsom administration officials did not provide an answer when asked for other specific examples of any California Natural Resources agency using confidentiality agreements in a rule making process.
Governor Newsom recently signed laws prohibiting lawmakers, the governor’s administration, and local governments from using non-disclosure agreements when deciding public policy. Spokespeople for the water board and California Natural Resources Agency did not say whether they plan to continue using confidentiality agreements in the future.
“If these are in fact ‘common place,’ I think that’s very problematic,” Micheli said. “Whether it’s a state agency in the executive branch of government making laws or the legislative branch in making laws, that should be in the public domain, and the public should know all of the information, scientific, legal or otherwise, that goes into that lawmaking process.”
The California Legislative Analyst’s Office, which advises the state legislature on policy and budget issues, released a report earlier this year on the Bay-Delta Plan and the voluntary agreements. Analyst Sonja Petek, who helped prepare the report, told KCRA 3 she was unaware of the confidentiality agreements.
The office in March suggested lawmakers consider requiring independent scientific evaluations and push for transparency.
“For example, it could require [the water board] to share all VA-related materials, data and reports in a centralized location,” the analysts wrote.
Democratic legislative leaders including State Senate Pro Tem Monique Limón and Assembly Speaker Robert Rivas did not comment on this story.
“The proposed changes to the Bay-Delta Plan need careful review and collaborative solutions. I find it very concerning that Newsom’s administration is playing puppet master and hiding records,” said California Senate Minority Leader Roger Niello, R-Fair Oaks. “The continued use of non-disclosure agreements by his office to alter scientific information demonstrates his style and approach when drafting important policies, and this will have significant impacts on water supplies, native fish and wildlife.”
“NDAs have no place in government,” said Assembly Minority Leader Alexandra Macedo, R-Tulare. “The Bay Delta Plan will impact farmers, ranchers and millions of Californians and their livelihoods. They deserve to know the scientific findings by state scientists. Before the Governor starts worrying about his next chapter, he should explain why Californians cannot see the science behind decisions being made right now.”
The water board is scheduled to vote on the updates at a hearing Oct. 28-29.
KCRA 3 Political Director Ashley Zavala reports in-depth coverage of top California politics and policy issues. She is also the host of “California Politics 360.” Get informed each Sunday at 8:30 a.m. on KCRA 3.