7690241At a recent continuing legal education program focusing on the Brown Act and California Public Records Act, a city attorney panelist said that leaks of things said and done in closed sessions of local government bodies are illegal and could be prosecuted as a misdemeanor under Government Code Section 1222. Then today a CalAware member called to my attention a Salinas City Council member demanding action to pursue leakers for committing a crime, and also “conspirator” journalists who receive and publish the information.

I assured the member that several factors precluded pursuing journalists criminally for receiving leaked information, or even forcing them to identify their sources, and that those present in lawful closed sessions who disclosed things said there could be disciplined only with the measures specified in the Brown Act, which do not include criminal prosecution.

Journalists have a constitutional right to ask for confidential information

No one is obliged to talk to a journalist. On the other hand, no journalist can be forbidden from, or held legally liable for, asking questions of a person ready and willing to speak. “(T)he news gathering component of the freedom of the press—the right to seek out information—is privileged at least to the extent it involves ‘routine ... reporting techniques.’ … Such techniques, of course, include asking persons questions, including those with confidential or restricted information.” Nicholson v. McClatchy Newspapers, 177 Cal.App.3d 509, (3d Dist. 1986). There may be some limits to that principle in dealing with sitting jurors or classified national security information, but in the context of journalists dealing with California government agencies, they are irrelevant. Thus, even though the journalist may be aware that the source is breaching his or her own duty of confidentiality, questioning of that source, or accepting information from the source, cannot be treated as a crime unless the source literally steals some item of more than trivial value—an irreplaceable logbook or register, say—with no intention of returning it, and the journalist knows the item was stolen. People v. Kunkin, 9 Cal.3d 245 (1973)

Journalists have a constitutional right to keep their sources anonymous

Unless the source is sought by a federal grand jury in a criminal investigation, that is.  But in terms of California law, journalist employees or freelancers of print, broadcast and even (according to one court) Internet news media

shall not be adjudged in contempt by a judicial, legislative, or administrative body, or any other body having the power to issue subpoenas, for refusing to disclose the source of any information procured while so connected or employed for publication in a newspaper, magazine or other periodical publication, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.

California Constitution Article I, Section 2, subdivision (b)

Leaking from a Lawful Closed Session Is Illegal but Not Criminal

The options to punish leakers are listed in the Brown Act at Government Code Section 54963:

 (a) A person may not disclose confidential information that has been acquired by being present in a closed session . . . to a person not entitled to receive it, unless the legislative body authorizes disclosure of that confidential information.

*****

(c) Violation of this section may be addressed by the use of such remedies as are currently available by law, including, but not limited to:

   (1) Injunctive relief to prevent the disclosure of confidential information prohibited by this section.

   (2) Disciplinary action against an employee who has willfully disclosed confidential information in violation of this section.

   (3) Referral of a member of a legislative body who has willfully disclosed confidential information in violation of this section to the grand jury.

Despite the “but not limited to” qualifier in (c) and the argument by some government attorneys that the “willful omission to perform” an official’s duty can be prosecuted under Government Code Section 1222, that statute has not been addressed in case law since its enactment in 1943, probably because no such prosecution has been attempted. And if no prosecution has been attempted it’s because an older remedy equally sobering to elected officials (if not more so) is the impeachment- like grand jury accusation process which may lead to a quasi-criminal prosecution and a conviction resulting in removal from office. That process is contemplated in (3) above.

In 76 Ops.Cal.Atty.Gen. 289, 292 (1993), the Attorney General examined

whether the public disclosure of information received during a closed session of a legislative body of a local agency could be considered the “willful omission” to perform a “duty enjoined by law.” The opinion concluded that disclosure of information in violation of a statute “may be enforced by use of the general criminal sanction set forth in [Government Code] section 1222.”

But that no longer relevant opinion dates from a time before the Legislature enacted specific disciplinary options to prevent or punish illegal leaks from closed session. Section 54963 was added by AB 1945 of 2002.

Moreover, as introduced, AB 1945 stated, "A person who violates this section is guilty of a misdemeanor.” That provision was quickly dropped in favor of subdivisions (c) (1)-(3) above. The legislative history of the penalty consequences of closed session leaks thus makes it clear that lawmakers at one point contemplated criminalizing such leaks—but promptly dropped the idea.

A practical explanation of why criminal pursuit of closed session leaks, even if legally authorized, would be a non-starter is the prospect that a member of a local body taken to trial on such charges might attempt to impeach the credibility of the prosecution’s witnesses—his or her colleagues—by pointing out instances where they had told tales out of closed session as well.