The consensus package of state budget tradeoffs emerging from wrangling by the Governor and Legislature in recent days has some losses for open government but, depending on which access rights one uses more, some gains that may be offsetting in the long run. As reported today by the California Newspaper Publishers Association (CNPA), two current provisions of the California Public Records Act are likely to be suspended for the 2013-2014 fiscal year, for fear of triggering unaffordably large demands for mandate cost reimbursement by local and state agencies.
The requirements are to provide electronic copies of records in any format used by the agency itself without charge except to recoup literal costs of duplication, and to help information seekers make successfully framed records requests, determine where the records are and whom to request them from, etc. These provisions would be identified as "best practices," not enforceable legal requirements, and any agency planning to stop observing them would be required to publicly announce that fact at the beginning of next year. Californians Aware has strongly criticized these mandate suspensions.
On the other hand, reports CNPA, lawmakers have rejected the judicial branch's bid to drastically hike the fees chargeable for locating and copying court records. Instead, a budget trailer bill would radically increase sunshine on the court system by directing its governing body, the Judicial Council, to adopt rules increasing public rights to attend its meetings and for the first time opening up to public access the meetings of its numerous standing committees, where most of the substantial proposals for court governance are initially worked out. According to a report by Cheryl Miller for the Recorder, the idea originated in the Assembly as a tradeoff: the courts could not raise records fees but would be given more budget support—in return for more public accountability for how it was spent.
Assembly lawmakers have endorsed a budget policy statement that would end the judiciary's decades-long practice of convening most policymaking and rulemaking committees behind closed doors — usually without publicly noticing the meetings first or posting their actions later. Fredericka McGee, general counsel to Assembly Speaker John Perez, said the proposal is part of the speaker's budget "blueprint," which offers more budget money — $100 million — to the judicial branch with certain "accountability" provisions attached.
Judicial leaders are resisting any legislative mandate, arguing that the chief justice and Judicial Council should be allowed to develop their own Rules of Court for open meetings."There are cost issues and many considerations," said Administrative Office of the Courts director Steven Jahr. "It's not something that can be done in the space of a hastily drawn up trailer bill."
The open-door proposal, McGee said, stems from the actions of a judicial working group that created a new funding allocation formula for trial courts in work done almost entirely in private meetings. The formula was only made public days before the Judicial Council approved it in April.
"It's not to say that the methodology is flawed," she said. "But I kept getting complaints from people that they wished they could have been part of the process and known what was going on.
"The proposal has not been translated into actual budget language yet. And it's not clear if it has the support of Senate leader Darrell Steinberg, D-Sacramento, who has been much more willing to give the judicial branch additional money without the strings sought by the Assembly.
"A lot of advisory groups meet only by phone," Jahr said. "Then the question arises, OK, how do you access public presence and comment in cases where you are meeting telephonically?"
Jahr also raised the specter of additional costs associated with opening meetings to the public, although he could not say what would generate those costs or how high they might go.
The judicial branch relies on dozens of subcommittees, working groups and task forces to hash out policies and recommendations on everything from the death penalty appeals process to construction priorities. By the time a proposal reaches the Judicial Council, any contentious issues have usually been settled in private meetings.
Asked earlier this year about opening more meetings to the public, Chief Justice Tani Cantil-Sakauye said she was open to the idea as long as it didn't generate additional costs or "chill" discussion among participants.