A Sacramento judge tentatively ruled last week that the state Senate must provide the press and public with copies of the appointment calendars and travel schedules of two former state senators now under indictment on charges of public corruption. The ruling rejected arguments by the Senate's lawyers that the records were exempt from disclosure under the Legislative Open Records Act (LORA).
That transparency law is far shorter and more general than its counterpart governing access to executive branch and local government files, the California Public Records Act (CPRA). LORA comprises only 11 exemptions:
• “Preliminary drafts, notes, or legislative memoranda”“Records pertaining to pending litigation”
• “Personnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy”
• “(T)he names and phone numbers of senders and recipients of telephone and telegraph communications”
• “(T)he name and location of recipients of automotive fuel or lubricants expenditures”
• “(Records) in the custody of or maintained by the Legislative Counsel”
• “In the custody of or maintained by the majority and minority caucuses and majority and minority consultants of each house”
• “Correspondence of and to individual Members of the Legislature and their staff"
• “Records the disclosure of which is exempted or prohibited pursuant to provisions of federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege”
• “Communications from private citizens to the Legislature”
• “Records of complaints to or investigations conducted by, or records of security procedures”
Despite the arguments of the Senate’s lawyer on Friday in reacting to the tentative ruling, there is no provision stated or implied in these exemptions for scheduling disclosures that might be used to compromise lawmakers’ safety. That same argument did persuade the California Supreme Court in a leading 1991 case that Governor Deukmejian’s appointment calendars and travel schedules should not be released to the public. But the argument was permitted only because the CPRA, which applies to a governor’s records, has an open-ended “balancing test” that allows the government to argue, despite the absence of any applicable specific exemption, that access to particular information under particular circumstances should be denied because there is a greater public interest in nondisclosure than in disclosure.
But LORA has no balancing test; if none of the exemptions noted above is applicable there is no basis for arguing that the public interest demands secrecy.
Moreover, while some legislators have assumed and even argued that Proposition 59 of 2004—the state constitutional open government amendment—does not apply to the Legislature because it was expressly excluded, that is not the case. All Proposition 59 did to protect legislative secrecy was to say that it did not “repeal, nullify, supersede or modify” the rules already on the books limiting access to legislative meetings and records. On the other hand, a key feature of the Prop 59 declaration is that “a statute, court rule, or other authority. . . shall be broadly construed if it furthers the people's right of access, and narrowly construed if it limits the right of access.”
LORA’s exemptions, that is, are not uprooted, but they are to be narrowly interpreted, not stretched, because they limit the people’s right of access to records of the Legislature. So if the Senate wants to argue that the circumstances militate against disclosure of the records sought, it needs to add a balancing test to LORA that will allow it to do that.
On Friday the Senate’s lawyer was heard to contend that allowing public access to even the limited scope of information sought by the plaintiff newspaper groups would be a serious blow, in effect, to the legislative process as Californians have come to know it. But this Inside-the-Building perspective clashes directly with recent evidence of how the public has come to view the Sacramento scene. On April 30 Sam Blakeslee, a former Assemblyman and Senator and the founding director of the Cal Poly Institute for Advanced Technology and Public Policy, announced sobering findings showing overwhelming public mistrust of California government and of the Legislature in particular.
“We the People.” Those first three words of our United States Constitution are as important today as they were at the founding of our nation. For no nation – let alone a nation conceived in liberty and dedicated to the equality and dignity of all persons – can endure and prosper without the active participation of “we the people” at every level of government.
Far too often, unfortunately, we see and hear a very different story: a government that is arcane and inaccessible, and a public characterized by apathy and cynicism. The public perception that government has become so big, so indifferent and so politicized that one person – citizen or legislator – can no longer make a real difference, has discouraged real participation and oversight by “we the people.”
Some say that Californians are uninterested in and do not wish to be engaged in their government. I, however, believe the public wants the opportunity to be involved. They want information about what is happening in their government, and they want it presented in a way that is quick and easy to find, understand and act upon.
To test this belief, I commissioned a bipartisan poll to measure the public appetite for five proposed reforms that would increase the level of access and transparency in state government. Through the Cal Poly Institute for Advanced Technology and Public Policy, a non-partisan think tank, a public opinion survey was developed in partnership with two well-respected polling firms. We brought together a polling team comprised of one Republican polling firm, SmithJohnson Research, and one Democrat polling firm, Tulchin Research.
This survey asked 800 likely voters to provide their views on California government, their support or opposition to key government reform and transparency proposals, and how they might become more informed and involved in the activities of state government.
By overwhelming margins, Californians believe there is a genuine need for greater transparency and openness in California state government. The following five reforms each received strong support, ranging between 82% and 91%, regardless of party affiliation or ideology:
Searchable Documents: Massive volumes of government documents exist online without the ability to do a keyword search to easily locate information important to the public. When asked aboutrequiring all documents, including the state budget, to be available online with their content easily searchable with a search engine similar Google, California voter support reached 91%.
Legislative Spending: In a recent PIRG Report that graded every state on government spending transparency, California came in dead last, receiving an “F.” When asked aboutproviding a detailed quarterly report of all legislative spending, including travel, staff, perks, mailings and committees, California voter support reached 90%.
72 Hour Wait Period: Often, powerful interests change controversial bills at the last minute leaving little or no time for the press, the public, and even other legislators to review what the bill says.When asked about requiring proposed new laws to be made available to the public in writing at least 72 hours before a final vote is taken, California voter support reached 89%.
Video Recording: Currently many legislative hearings are not video recorded. Compounding the problem, no minutes, transcripts or list of participants are produced for the public to review. When asked aboutrequiring all public hearings in the Legislature to be video recorded and made available to the public on the Internet within 24 hours after the hearing, California voter support reached 86%.
LAO Analysis: Currently, analyses of proposed new laws are performed by partisan staff members who work for politicians. These analyses are very powerful in shaping the dialogue and public debate on issues before the Legislature. When asked aboutrequiring that the official analyses of proposed new laws be done by the nonpartisan Legislative Analyst’s Office, instead of legislative staff, California voter support reached 82%.
Each one of these five reforms was then robustly challenged with critiques to determine if they held up under fire. In each case, support fell only modestly and continued to outpoll “no” votes by 2:1 to 3:1 margins. Making these results even more intriguing is the fact that support for these measures were virtually identical regardless of party affiliation, ideology, ethnicity or geography. In such a polarized political environment it’s rare to see such broad based bipartisan support for any package of reforms.