iStock_000006618875SmallAs it turned out, the Legislature and Governor backed away Friday from their proposal to suspend the enforceability of certain key provisions of the California Public Records Act, thanks to an unprecedented wave of protest from all media and citizen quarters.  But the issue that might otherwise have led to a court battle is prompted by other bills, amending both the open meetings and public records laws, that have been passed into law or are being currently considered.

The issue is not a budget-driven suspension of public access requirements. The California Constitution doesn't forbid suspending or even repealing the Public Records Act or the Brown Act—in whole or in part.  But it does demand that in doing so, or in adding any new secrecy to the law, the legislation contain a showing that it is necessary to protect some public interest.

Specifically, one provision of the Prop 59 amendments to the Constitution says that any "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." Accordingly, most legislative bills since 2004 that have created new exceptions or exemptions from the open meeting or public records laws have contained a Prop 59 statement of necessity of some kind.

But too often the 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.

Example: Obamacare Negotiations With Insurance Carriers

For example, the law creating California's Health Benefit Exchange (a consequence of "Obamacare" provisions) exempts from disclosure under the CPRA most information about the Exchange's negotiations and other activities. The need statement declares:

In order to ensure that the California Health Benefit Exchangeis not constrained in exercising its fiduciary powers and obligations to negotiate on behalf of the public as it implements federal health care reform pursuant to the federal Patient Protection and Affordable Care Act (Public Law 111-148), the limitations on the public's right of access imposed by Section 12 of this act are necessary.

Section 12 of the bill (AB 1602 of 2010) states:

(a) Records of the Exchange that reveal any of the following shall be exempt from disclosure under the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1:

(1) The deliberative processes, discussions, communications, or any other portion of the negotiations with entities contracting or seeking to contract with the Exchange, entities with which the Exchange is considering a contract, or entities with which the Exchange is considering or enters into any other arrangement under which the Exchange provides, receives, or arranges services or reimbursement.

(2) The impressions, opinions, recommendations, meeting minutes, research, work product, theories, or strategy of the board or its staff, or records that provide instructions, advice, or training to employees.

(b) (1) Except for the portion of a contract that contains the rates of payment, contracts entered into pursuant to this title shall be open to inspection one year after their effective dates.

(2) If a contract entered into pursuant to this title is amended, the amendment shall be open to inspection one year after the effective date of the amendment.

In other words, while contracts awarded by the Exchange become public after a year, everything else about how they came to be is secret permanently. The Associated Press did a recent report showing how unusual this is.

Example: Cap and Trade Programs Administration Meetings

Last summer, as part of a typically very diverse 105-page budget trailer bill, SB 1018, the Legislature passed and Governor signed an amendment to the law relating to the state's carbon emissions cap and trade market.  The market's operations in California and several other west coast states and Canadian Provinces is supervised by Western Climate Initiative (WCI), Inc., a nonprofit organization whose board comprises representatives of the member jurisdictions.

The SB 1018 changes, ironically, were stated in the bill as intended to "establish new oversight and transparency" over WCI by carefully designating its California board members.  But added at the last minute, with no public discussion or debate, was a provision exempting meetings of the WCI board from the Bagley-Keene Act.  The bill was passed with no Prop 59 needs statement at all. A bill was introduced this year to repeal the Bagley-Keene exemption on policy rather than Prop 59 grounds, but it failed passage in its first committee hearing.

Example: SF-Oakland Bay Bridge Span Safety Review Meetings and Records

A recent series of investigative stories by the Sacramento Bee has raised serious questions about the ability of the new rebuilt eastern span of the San-Francisco-Oakland Bay Bridge, which collapsed in the 1989 Loma Prieta earthquake, to withstand major earthquake stresses.  On June 11 SB 110, a previous "spot" bill by Senate President pro Tem Darrell Steinberg, was amended to create a seven-member "safety review task force" charged

to assess the anticipated seismic structural performance of the East Span . . . of the San Francisco-Oakland Bay Bridge by conducting a series of specified reviews. The task force would be required to submit a final written report to the Legislature and the Governor that includes the results of its reviews, as specified.

But the safety review would not be transparent.

(d) The task force is exempt from the Bagley-Keene Open Meeting Act  . . . and from (the legislative open meeting statute).
(e) The records and documents of the task force, or in the possession of the task force, are exempt from disclosure under the California {Public Records Act and the Legislative Open Records Act until the final written report . . . is submitted to the Legislature and the Governor.   The task force shall provide copies of all of its records and documents to the Legislative Analyst, and, when the task force submits the final written report to the Legislature and the Governor . . . the task force records and documents in the possession of the Legislative Analyst, including the final written report, shall then be subject to disclosure under the Legislative Open Records Act.

But making the records public “subject to” the Legislative Open Records Act would also mean subjecting them to any or all of the LORA’s exemptions and limitations, which are more inclusive than those in the Public Records Act, exempting for example any “draft”—a term used to withhold office budgets in a recent controversy, legislative correspondence (internal or external), records whose disclosure would violate personal privacy (as decided by a legislative committee), records maintained by the party caucuses, and phone records.  And unlike the case with the Public Records Act, e-mail is not included in the definition of “records.” The uselessness of LORA to disclose any kind of politically sensitive information is hinted at here.

SB 110's Prop 59 statement of need declares:

(a) California has a strong public interest in making every effort to ensure that the East Span of the San Francisco-Oakland Bay Bridge is constructed in a manner that ensures that it is a safe and reliable lifeline structure that will survive a foreseeable earthquake.(b) It is critical for the state to obtain a reliable, independent review of the structure as soon as possible, and the substantial public interest to have early access to documents and proceedings related to this review is outweighed by the public interest of ensuring that the structure is safe and can survive a foreseeable earthquake. All of the records and documents of the East Span, San Francisco-Oakland Bay Bridge Safety Review Task Force, including its final written report, will become subject to the disclosure requirements of the Legislative Open Records Act once the report is submitted to the Legislature and the Governor.

There is nothing showing why—or even that—open task force sessions and records would not permit "a reliable, independent review of the structure."  The bill's charge to the task force suggests a focus on engineering standards and procedures that may be highly technical and above the heads of most lay observers, but that is no reason to keep knowledgeable professionals from monitoring or later reviewing the sessions or records.  The extensive Congressional hearings into the Challenger Space Shuttle disaster 10 years ago were held in public, with some televised and significant portions of the record still online.

Only the Courts Can Stop This

There are other examples, but these should make it clear that despite the voters’ concern nine years ago to stop the spread of secrecy without demonstrated need, the Legislature is perfectly willing to use nondemonstrative boilerplate to rubber-stamp whatever new exceptions from the constitutional presumption of open government it finds convenient. Since the "findings" state no facts showing the need to reduce public access and awareness, critics have nothing to sink their teeth into in arguing that there is no need.

The rhetorical findings subversion of Prop 59 can be checked only by litigation, and there’s not likely to be a better time to hand this issue to the courts.  Their recent budget request for a substantial hike in charges for searching judicial records was rebuffed by lawmakers, who instead slapped new transparency requirements on the court system’s governing body, as reported by Courthouse News Service:

As part of the budget, they are telling the Judicial Council to conduct all of its business in open, public meetings. The push to open up those meetings applies directly to the way the search fee was generated, through a series of council committees closed to the public.     Specifically, the legislation includes a provision saying that no later than October 1st, the Judicial Council "shall adopt a rule regarding open meeting requirements." The rule applies to "any committee, subcomittee, advisory group, task force or similar multi-member body that reviews issues and reports to the Judicial Council." It also requires telephonic access to anyone who requests it and requires public notice.