Monthly Archives: January 2009

Court: Ballot Measure Donors' Names Not Private

PUBLIC INFORMATION — The San Francisco Chronicle reports that Proposition 8 proponents' complaint that a California campaign-finance disclosure law has led to harassment of same-sex marriage opponents failed today to sway a federal judge, who refused to throw out the law or shield donors' names. Lawyers for Protect Marriage, sponsor of the constitutional amendment that won voter approval Nov. 4, said contributors have already faced consumer boycotts, picketing and even death threats after the state posted their names and other information in mandatory campaign reports.    They argued that the law requiring disclosure of all donors of $100 or more interfered with the campaign's right to participate in the political process and should be struck down, modified to raise the dollar limits, or at least not applied to contributors to the measure outlawing same-sex marriage.*****    But U.S. District Judge Morrison England, after a one-hour hearing in Sacramento, said California's $100 reporting requirement – adopted by the voters in 1974 – is a valid means of informing the public about the financing of ballot measure campaigns.    "If there ever needs to be sunshine on a particular issue, it's a ballot measure," England said, observing that initiatives are often sponsored by committees with misleading names.

Court: No Right to Post Kids' Pix as Sex Focus

FREE SPEECH — CNET News reports that the California Court of Appeal has upheld a court order to a self-described girl lover with no criminal record to cease posting images of young girls on a website, even if the photographs were taken in public places. Concluding that Jack McClellan had no First Amendment right to place the photos as exhibits in his own pedophilic fantasies, the court's January 15 opinion stated in part: Publications, even if true, may constitute an invasion of privacy if they are presented in a lurid or indecent manner. Even if photographs are accurate and taken in public places, there can be a cause of action for invasion of privacy when they are exploitative . . .    For example, in Gill v. Curtis Publishing Co., a happily married couple was photographed in an affectionate pose when they were at their place of business. A magazine used the photograph in an article on different types of love as an example of mere sexual attraction. The California Supreme Court examined the context in which the article was used. The Court held that even though the couple had been in a public place when the photograph was taken, the plaintiffs had stated a cause of action because the use of the photograph could be actionable as an invasion of privacy . . .     McClellan states that his activities are not illegal. For example, he states that attending public events is not illegal, publishing photographs is permissible, and engaging in public advocacy for those attracted to prepubescent girls is legal. McClellan misses the point.    McClellan is not prohibited from espousing his controversial views. Rather, he is prohibited from his continuing course of conduct to […]

Obama Stance on 'State Secrets' to Be Seen Soon

OPEN GOVERNMENT — The Washington Inependent reports that President Obama’s sweeping reversals of torture and state secret policies are about to face an early test. The test of those commitments will come soon in key court cases involving CIA “black sites” and torture that the Bush administration had quashed by claiming they would reveal state secrets and endanger national security. Legal experts say that the Bush Department of Justice used what’s known as the “state secrets privilege” – created originally as a narrow evidentiary privilege for sensitive national security information — as a broad shield to protect the government from exposure of its own misconduct.    One such case, dealing with the gruesome realities of the CIA’s so-called “extraordinary rendition” program, is scheduled for oral argument before a federal appeals court in early February. The position the Obama administration takes in this case may be the first major test of its new policies on transparency in government.

Judge Seals Search Warrant for Assessor's Home

PUBLIC INFORMATION — The Press-Enterprise in Riverside reports that a  judge may have violated the First Amendment when he sealed a search warrant involving the San Bernardino County assessor without any explanation, an attorney for a free-speech advocacy group said Monday. "You need to provide a reason," said Rachel Matteo-Boehm, an attorney for the California First Amendment Coalition, of which The Press-Enterprise is a member.    On Jan. 14, San Bernardino County Superior Court Judge Douglas Elwell signed a search warrant authorizing authorities to raid 10 locations, including Assessor Bill Postmus' apartment in Rancho Cucamonga.    Postmus, 37, a former San Bernardino County supervisor, was arrested the next day after investigators said they found suspected methamphetamine and drug paraphernalia in his home. He posted bail the same day and no charges have been filed.    In his order to seal the document, Elwell stated only that good cause had been shown. The Press-Enterprise obtained a portion of Elwell's order that included that language.

Comments on Pluses, Minuses of Obama Policies

OPEN GOVERNMENT — Enthusiasm and relief tempered by dry-eyed realism marked the reactions of some experienced observers reacting to President Obama's 'Day One" announcement of pro-transparency policies for the executive branch. Steven Aftergood of the FAS Project on Government Secrecy noted that much of the problem lies outside the Freedom of Informatin Act. Inevitably, several caveats are in order.  A "presumption of disclosure" really only applies to records that are potentially subject to discretionary release, which is a finite subset of secret government information.  Vast realms of information are sequestered behind classification barriers or statutory protections that remain unaffected by the new policy statements.  "In the face of doubt, openness prevails," the President said.  But throughout the government secrecy system, there is not a lot of doubt or soul-searching about the application of secrecy.*****    Unfortunately President Obama's new directives do not yet encompass the needed overhaul of the national security classification system.  That may have to wait another day or two. Investigative journalist Robert Parry welcomed the reversal of the Bush executive order on the Presidential Papers. When authoritarian forces seize control of a government, they typically move first against the public’s access to information, under the theory that a confused populace can be more easily manipulated. They take aim at the radio stations, TV and newspapers.        In the case of George W. Bush in 2001, he also took aim at historical records, giving himself and his family indefinite control over documents covering the 12 years of his father’s terms as President and Vice President.    It was, therefore, significant that one of Barack Obama’s first acts as President was to revoke the Bush Family’s power over that history and to replace it with an […]

White House Day One: Transparency Is the Rule

OPEN GOVERNMENT — On the first full day of his administration, President Obama announced several emphatic improvements in executive branch transparency policies. As summarized by the press office: In the Presidential Memorandum on Transparency and Open Government, and the Presidential Memorandum on the Freedom of Information Act, the President instructs all members of his administration to operate under principles of openness, transparency and of engaging citizens with their government.  To implement these principles and make them concrete, the Memorandum on Transparency instructs three senior officials to produce an Open Government Directive within 120 days directing specific actions to implement the principles in the Memorandum.  And the Memorandum on FOIA instructs the Attorney General to in that same time period issue new guidelines to the government implementing those same principles of openness and transparency in the FOIA context. Finally, the Executive Order on Presidential Records brings those principles to presidential records by giving the American people greater access to these historic documents.  This order ends the practice of having others besides the President assert executive privilege for records after an administration ends.  Now, only the President will have that power, limiting its potential for abuse.  And the order also requires the Attorney General and the White House Counsel to review claims of executive privilege about covered records to make sure those claims are fully warranted by the Constitution. The press office also supplied a transcript of the President's introductory comments (video here). For Immediate ReleaseJanuary 21, 2009 REMARKS BY THE PRESIDENT IN WELCOMING SENIOR STAFF AND CABINET SECRETARIESTO THE WHITE HOUSE Room 450Eisenhower Executive Office Building 1:18 P.M. EST     THE PRESIDENT:  Hello, everybody.  Please be seated.  Still getting used to that whole thing.  (Laughter.)  Please be […]

News Brought to Light in Public Records . . .

PUBLIC INFORMATION — Disclosures recently made in response to requests under the California Public Records Act reveal that: the Bell Gardens police chief, despite the city attorney's warning that a bid for the city's towing business was legally tainted by a side offer of a gift to the police department, awarded the contract to the suspect bidder, reports LA City Beat. the rate of sudden deaths increased six-fold in the first year that California law enforcement agencies deployed the use of stun guns, according to a University of California, San Francisco research paper reported in Digital an employee of the Los Angeles County Department of Animal Care and Control was recorded on video dragging an injured dog at the Baldwin Park shelter, reports Kate Wooddviolet on

Court: What Records to Keep Was Cheney's Call

OPEN GOVERNMENT — The Associated Press reports that, on the last full day of the Bush Administration,  a federal judge ruled that Vice President Dick Cheney had broad discretion in determining what records created during his eight-year tenure must be preserved. Absent any evidence that Cheney's office is failing to safeguard records, it is up to the vice president to determine how he deals with material, U.S. District Judge Colleen Kollar-Kotelly ruled.    "Congress drastically limited the scope of outside inquiries related to the vice president's handling of his own records during his term in office," the judge said in a 63-page opinion.*****    The judge said Congress must change the law before substantial outside oversight can take place.

Ballot Measure Cash: Immune from Mischief?

FREE SPEECH — Bill Cavala, writing in, says mandatory disclosure of the sources of campaign contributions to candidates for office is considered a justifiable limitation of privacy because of public concern that the money given can act as a bribe.  But if contributions—viewed as speech equivalents under the First Amendment—need anonymity to be really free, then contributions to ballot measures may demand more privacy, he says. . . .  the issue resolves itself into a balancing act between our right and need to know who’s trying to buy our public officials and the right of the buyers to privacy and anonymity. Cast in this manner, disclosure wins. But ballot measures are different animals—legally. The (U.S. Supreme) Court has held that contributions to ballot measures may not be limited as they may be with contributions to candidates. The reason is simple: candidates can be corrupted—or may appear to be corrupted—undercutting the faith of the people in a Democratic form of government. This possibility alone, the Court reasoned, justifies ignoring the First Amendment rights of politicians. But ballot measures don’t involve corruptible politicians. Contributions to ballot measures are used to “inform” voters. And voters, by definition, cannot be corrupted by information—so it doesn’t matter who pays for it. The issue is of high current interest because the forced disclosure and widespread publicizing of ballot measure contributors is the subject of an aggressive legal challenge by backers of Proposition 8, on First Amendment grounds. On the other hand, contributions to ballot measures can be appropriated for other uses by politicians sponsoring the measures, and that fact has just prompted a new regulatory crackdown, as reported by the Los Angles Times. The state's ethics watchdog agency enacted new […]

Council to Be More Open about Closed Sessions

OPEN MEETINGS — The St. Helena Star reports that the City Council has adopted a new set of guidelines aimed at shedding more light on what happens during its closed session meetings. Under a resolution adopted Tuesday, the council will: Allow for more disclosure and opportunity for public discussion of closed session items. Include more details on its agendas relating to closed session items. Mention during open session any matters that are anticipated to be on future closed session agendas, and determine if those talks can be held in public. The discussion of future closed session items will become a regular agenda item at the end of each meeting.