Some notes on two pending legislative measures that would amend the Brown Act and its prescription for transparency in local government agency meetings, plus a third that would add sunshine to how the Legislature itself does its business. When the Minutes Don’t Reveal Whodunnit Some may be surprised to learn that the Brown Act does not require local councils, boards and commissions to create minutes of their meetings; it simply provides that minutes of closed sessions may be kept, but if they are, they are not public records. And of course there are strong legal, business, practical and political reasons for the maintenance of minutes: to confirm the adoption of ordinances, bylaws and other rules and regulations; to verify approval of contracts and other agreements; and in general to manifest everything done or even considered by the body collectively and officially—and when. Accordingly, the taking, approval and preservation of minutes is an essentially universal practice even in the absence of a legal mandate. But just how much detail is included varies widely, from the diligent virtual transcript of all that is said, and by whom, to the minimalist action summary that reports only issues reaching a vote, with little or no elaboration beyond a mere label. Even sketchier are those agencies—the Association of Bay Area Governments, for example— that disclose the vote tally, but not who voted which way. Accordingly Senator Leland Yee has introduced SB 751, requiring that local bodies “publicly report any action taken and report the individual vote or abstention of every member present.” The initial version of the bill put this requirement in Government Code provisions outside the Brown Act and applied them only to the highly specialized local bodies where [...]
Budget Downgrades Public Records Responsiveness
What if California government agencies no longer had to let you know within 10 days how much of the public record information you’d asked for would be provided, if any? Or tell you what law allowed them to withhold it? What if they didn’t have to tell you that the information, while not in their files, could be obtained from a different agency? Or tell you what kind of digital records the information was kept in? All these helpful responses to public records requests, required by the California Public Records Act for years, are recommended in Governor Jerry Brown’s new budget to be made optional “best practices” instead of court-enforceable mandates. The basic situation is reported by Christopher Cadelago for the San Diego Union-Tribune, and the mandate suspension proposals are examined by the Legislative Analyst’s Office here. But the purpose of suspending mandates, as shown with last year’s unplugging of certain open meeting law requirements, is supposedly to keep the state from having to pay unaffordable local government claims for the cost of performing extra services added to the law in the last few decades. In the case of the Brown Act, such documented reimbursement claims accumulated over the years to constitute multiple millions of dollars of obligations from the state to cities, counties and districts. But unlike unlike the Brown Act claim drain, there is no huge and continuing mountain of mandate reimbursement demands under the Public Records Act. In fact the Commission on State Mandates only approved the CPRA requirements for state reimbursement in May 2011, and the Legislative Analyst concedes, “As the CSM has yet to issue a statewide cost estimate, the annual state cost of funding the CPRA mandate is uncertain.” [...]
Bill Would Give Some Privacy to Heat Packers
While the names of those who get—or even apply for—permits to carry concealed weapons are matters of public record in California and would stay that way under the recently introduced Assembly Bill 134, the bill by freshman Assembly Member Allan Mansoor (R-Costa Mesa) would allow police and sheriffs’ departments to keep confidential their home addresses and phone numbers, reports the Los Angeles Times. Such information is already exempt from disclosure for permittees and applicants who are prosecutors, public defenders, peace officers, judges, court commissioners, and magistrates. Privacy concerns aside, the main reason for keeping permit-related records visible in the first place is to bring transparency about how sheriffs and police are handling their issuing authority. For example, some sheriffs have been accused of handing permits out liberally to political supporters and contributors while withholding them from others, sometimes as expressions of racial or ethnic discrimination. Keeping the addresses of permittees confidential will make it harder to detect such practices, including issuance to those who live outside the jurisdiction. Mansoor’s main argument is that an accessible list of contact information for “concealed carry” permittees amounts to a “shopping list” for criminals bent on stealing weapons. It’s not clear that this notion is evidence-based; one might also conjecture that such a list acts to educate burglars and home invaders about which residences (or individuals) are more dangerous targets for attack and should be avoided. But since such records are not posted on the Internet, both conclusions assume something that in itself seems hard to imagine: that those bent on crime will demand access to such records from their only source: police and sheriff’s offices. Californians Aware’s statewide survey of such agencies in 2007 showed a pronounced tendency [...]
Feinstein on Democracy: “Le Peuple, C’est Nous”
Louis XIV, the French “Sun King” viewed as the pinnacle of absolute monarchy prior to the Revolution, is often (if baselessly) quoted to have said, “L’Etat, c’est moi”—”I am the State.” Senator Dianne Feinstein, chair of the Senate Intelligence Committee, has defended its refusal to release to the public any information from its multi-year investigation, recently concluded, of the CIA’s post-9/11 detention and interrogation practices by saying, “We are the public.” Federal secrecy monitor Stephen Aftergood quotes her as explaining, “I mean, we are the public check on the Executive Branch . . .We are not of the intelligence community. We are the public, and it is our oversight, it is our due diligence to go in and read the classified material.” Committee Vice-Chair Saxbe Chambliss (R-Georgia), in almost all other respects on the opposite ideological extreme from Feinstein, was a perfect echo, reports Aftergood. “In matters concerning the [Foreign Intelligence Surveillance Act] Court, the congressional Intelligence and Judiciary Committees serve as the eyes and ears of the American people. Through this oversight, which includes being given all significant decisions, orders, and opinions of the court, we can ensure that the laws are being applied and implemented as Congress intended.” The context for these bland assurances of “Trust us—we’ve got your back,” was the Senate’s refusal on December 27-28 to provide more public information about the impacts of government surveillance on the privacy of American communications, renewing the FISA Amendments Act for five more years (President Obama signed it into law on December 30) untrammeled by the mildest concessions to public awareness. Aftergood believes this refusal signals a reorientation of intelligence oversight away from public accountability. The congressional intelligence committees once presented themselves as champions [...]
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Feinstein’s Anti-leak Measure Threatens Speech and Press
Feinstein’s Anti-leak Measure Threatens Speech and Press
Some bad ideas are so irresponsible they might as well be intentionally destructive, and some pieces of legislation are prime examples of this sorry fact. Take Senator Dianne Feinstein’s anti-leak provisions in the current intelligence authorization bill, which passed her Senate Intelligence Committee the other day. It exempts the Congress itself and the White House from any penalties for leaking classified information but makes ordinary interactions between journalists and intelligence officials extraordinarily risky. The bill’s troubling threats to First Amendment freedoms—in both its vague terms and draconian consequences—were spelled out today by two veteran experts on government secrecy: a watchdog policy analyst and a foreign affairs journalist.
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Open Meetings Bill Offers Cease and Desist Solution
Open Meetings Bill Offers Cease and Desist Solution
SB 1003 by Senator Leland Yee (D-San Francisco) offers a way for local government bodies to avoid litigation by pledging to abandon meeting-related practices that prompt accusations of Brown Act violations–without conceding that they are unlawful. It also gives citizens the opportunity to demand and achieve such changes without having to file a lawsuit. The bill was introduced in response to an unpublished opinion of the Fifth District Court of Appeal (McKee v. Tulare County Board of Supervisors) holding that past actions or practices of a local legislative body that were not persisting into the present could not be the basis for mandatory, injunctive or declaratory relief under Government Code Section 54960. As introduced, the bill would have simply added the word “past” to the section, to allow such remedies “to determine the applicability of this chapter to past actions or threatened future action of the legislative body.” That would have brought the Brown Act in conformity with the Bagley-Keene Open Meeting Law, which already takes this approach. But the League of California Cities and an array of other local government lobbies typically active on Brown Act measures argued that such a change would expose them to an unreasonably open-ended period of liability. They negotiated a more limited but also more complicated alternative with the co-sponsors of the bill, the California Newspaper Publishers Association (a party to the unsuccessful Fifth District action) and Californians Aware (whose founding president, the late Richard McKee, was the original plaintiff in the Fifth District action). The resulting bill now awaits action on the Assembly floor after passage in the Senate and withdrawal of opposition by the local government lobbies involved in the negotiations. It provides dual actions “to determine [...]
SB 999
SESSION: 2012 INFORMATION: SB 999 (La Malfa) would eliminate the current two year statute of limitations to bring a damages lawsuit for the unauthorized commercial use of a person’s name, signature, photograph, or likeness when the unauthorized use was on the Internet, permitting such actions at any time after the use, even if it has been discontinued. POSITION: Oppose STATUS
AB 1270
SESSION: 2012 INFORMATION: AB 1270 (Ammiano) would restore the ability of journalists to conduct prearranged interviews and exchange confidential correspondence with particular state prison inmates, and to do so using pens, pencils, paper, cameras and other recording devices when conducting these interviews. POSITION: Support STATUS
SB 1336
SESSION: 2012 INFORMATION: SB 1336 (Yee) would require disclosure of the results of investigations into improper governmental activity by the State Auditor’s office, by California State University investigators and by city auditors’ investigators. Under existing law, ostensibly to protect whistleblowers and witnesses, none of these investigative outcomes need be revealed. This bill would end that secrecy but protect the identities of whistleblowers, interviewed witnesses and accused persons found to be innocent of any wrongdoing. The bill is in response to frustrated efforts by San Diego watchdog Mel Shapiro to get details on several years’ worth of city auditor’s investigations into complaints against city officials. POSITION: Support STATUS