There are two serious but reparable shortcomings in SCA 3, the Legislature’s attempt at a comprehensive elimination of the threat of mandate suspensions of the open government laws. The addition of a simple, outcome-neutral set of necessity standards to the bill would mean fairness and strong protection for both local government and sunshine watchdogs.
Of the two shortcomings, one is in the Constitutional amendments already added by Proposition 59 of 2004, and one emerges in the current SCA 3 language.
The Existing Shortcoming: No Demand for Evidence of Need for New Secrecy
The existing Article 1, Section 3, subdivision (b), paragraph (2) states:
A statute, court rule, or other authority adopted after the effective date of this subdivision that limits the right of access shall be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.
The problem with this requirement is that, as noted here Monday, over the first nine years of Prop 59’s existence, too often the findings statement does not “demonstrate” the need to protect a specified interest; it simply announces in general terms the importance of some public interest and concludes or even just assumes that the legislation in question is needed to protect that interest. In other words, instead of setting forth facts manifesting a risk to a public interest that can only be avoided by passing the bill, the statement says in so many words that the public interest in a given process or activity is vital and that therefore the bill is necessary to protect it.
The issue is not that such factually unsupported secrecy extensions are introduced and passed out of hostility to public awareness and participation. The apparent cause is that the drafters, authors and even committees confuse the constitutionally mandated findings requirement with the common practice of prefacing bills on novel subjects with preambles reciting “findings and declarations” to aid courts in discerning legislative intent. But the intent of legislation is very different from the need for departure from a statutory disclosure presumption. If that presumption is to be given the force appropriate to a constitutional requirement, factual findings showing the need to limit public access in the manner proposed are imperative. They may well not be hard to achieve, and are likely to enjoy judicial deference, but they are important to establish that new secrecy law is not being adopted as a matter of simple legislative preference.
Accordingly, SCA 3 (June 20 amended version) should be further amended as marked.
Page 3, line 18:
A statute, court rule, or other authority adopted after the effective date of this subdivision that limits the right of access shall be adopted with findings of fact, supported by substantial evidence, demonstrating the interest protected by the limitation and the need for protecting that interest with the adopted measure.
The New SCA 3 Shortcoming: No Demand for Evidence of Need for New Mandates
In symmetry with the issue noted above, SCA 3 leaves local government exposed to costly new open meetings or public records mandates with no factual showing of need for them in the public interest. The bill allows the Legislature to impose new mandates under the Brown Act or California Public Records Act (or any successor statutes) that are not subject to cost reimbursement to local government so long as the mandate legislation is adopted with “findings demonstrating that the statutory enactment furthers the purposes of (Proposition 59).”
It is hard to imagine what new mandates to these open government laws could not be shown to “further the purposes” of the constitutional open government presumption. For example, if there were a bill requiring local government bodies to live stream their meetings on the Internet, the obvious cost impact would have to be absorbed by the affected agencies if the legislation made a perfunctory showing to the effect that mass dissemination of the meetings in real time furthered the purpose of Prop 59 by enhancing the public’s right of access to meetings of public bodies. The bill would be a windfall for providers of live streaming services like Granicus, but could be a serious strain on the budgets of smaller agencies for whom such technology had so far been unaffordable.
In short, the new “findings” requirement in SCA 3 to protect local agencies from new open government cost mandates is illusory. It will do nothing to check the agencies from exposure to such costs as a consequence of simple legislative preference. The Senate Governance and Finance Committee consultant's analysis of SCA 3 yesterday noted:
Too open-ended. Senate Constitutional Amendment 3, if passed by the voters, would obligate local agencies to comply with the Ralph M. Brown Act and the California Public Records Act, in their present form, and as amended in the future, without the ability to seek reimbursement from the state for new mandates. The provisions of SCA 3 contradict the vote of the people in passing Proposition 4 of 1979 that stipulated that the state must fund any new requirements it imposes on local governments.
If equal respect and deference is to be given to both constitutional principles involved—avoidance of unfunded mandates and avoidance of government secrecy—then SCA 3 (June 20 amended version) should be further amended as marked.
Page 4, line 10:
(7) In order to ensure public access to the meetings of public bodies and the writings of public officials and agencies, as specified in paragraph (1), each local agency is hereby required to comply with the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code) and the Ralph M. Brown Act (Chapter 9 (commencing with Section 54950) of Part 1 of Division 2 of Title 5 of the Government Code), and with any subsequent statutory enactment amending either act, enacting a successor act, or amending any successor act that contains findings of fact, supported by substantial evidence, demonstrating that the statutory enactment furthers is needed to protect the purposes of this section.
New open government mandates on local agencies should be insulated from reimbursement claims only if those mandates are adopted with fact-based findings that they are necessary to further the purposes of Prop 59.
Again, such findings should not be difficult to support with evidence of need, if need there is. For example, the key mandates that would have been suspended by the recent controversial trailer bills could have been protected by experienced-based findings that, for example, to further the purposes of Prop 59, agencies must provide relatively prompt responses to public records requests, and in writing, and must share with the public any electronic records they possess and use in a specified format, i.e. share with the public the advantages of superior information processing and analysis that the government enjoys.
Bottom line: To give equal and real protection to both voter-demanded interests—open and affordable government—legislative endeavors to limit either should be justified by findings of fact supported by substantial evidence. The constant and crucial question must be: "What's the need for this?"