If the California Supreme Court should decide that government officials’ private emails about public business cannot be reached by Public Records Act requests, the Brown Act requirements for open and public local government decision-making could be fatally undermined as well. The court has had before it for more than a year a decision by the Sixth District Court of Appeal holding that officials’ private emails are not public records, even if they clearly are used to conduct public business, since they are not “prepared, owned, used, or retained” by a public agency. The Sixth District mentioned only in passing the 2004 amendment to the California Constitution declaring that “the writings of public officials and agencies shall be open to public scrutiny,” instead stressing the privacy interests of officials that would be infringed by “a requirement that the government search individuals’ personal computers and other devices for information potentially responsive to [CPRA] requests.” If the Supreme Court were to agree, or otherwise to rule that officials’ private email accounts by definition are not repositories of accessible public records, communications among majorities of local councils, boards and commissions could stay in the private sector as well, escaping Brown Act enforcement. An example can be found in the June 8 final report of the Fresno County Grand Jury concerning citizen complaints of Brown Act violations and other troubling behavior by a three-member majority of the governing board of the Selma Unified School District. That trio, who without explanation and over a strong public protest, voted to fire a popular superintendent early last year, were subsequently recalled. But meanwhile the grand jury’s pursuit of the Brown Act allegations was stymied. As its report notes, The Grand Jury’s request to […]
A U.C. Irvine student worker union leader explains why there’s no Israel-bashing exception to the First Amendment, despite U.C.’s new Unfree Speech Movement. But as Glenn Greenwald notes, Regent Richard Blum wants the university to adopt a policy identifying unfair criticism of Israel as directed at Jews per se, and wants students found guilty of it disciplined—or expelled. In doing so, he bluntly warns that if such steps are not taken his wife, Senator Dianne Feinstein, will use her formidable political power to assail the university as tolerant of antisemitism.
A Los Angeles Superior Court Judge yesterday ruled, in a case brought by Californians Aware against the Pasadena Community College (PCC) district board, that the board violated the Brown Act last year when it failed to spell out what “existing facts and circumstances” created a “significant exposure to litigation” against the district to warrant a closed session with counsel. The unprecedented penalty: an order declaring null and void the board’s $400,000 plus severance payment to the college’s outgoing President/Superintendent, Dr. Mark Rocha. The Brown Act’s normally required disclosure of who has created a litigation threat against against the local agency—and why— in order to warrant a closed door consultation with legal counsel can be disregarded if the body asserts that those facts and circumstances are not yet known to the potential plaintiff, i.e. that revealing them might tip the potential plaintiff off that he, she or it has an actionable grievance. The PCC’s legal counsel took this route in refusing to identify the threatening facts and circumstances justifying two closed sessions August—falsely, as it turns out, since the potential plaintiff, Dr. Rocha, already knew those facts and circumstances, having created them by quietly threatening to sue for defamation based on some unflattering remarks allegedly made by one of the trustees. The legal counsel’s refusal to disclose that much—that Rocha had threatened to sue on those grounds—was an indisputable Brown Act violation, Judge Joanne O’Donnell concluded in the tentative ruling prompting her order nullifying the board’s decision to pay Rocha more than $400,000 to settle his defamation claim, and directing the board and Rocha to correct that violation and report back to the court. The board’s choice is to either appeal the judge’s decision or re-do […]
OPEN MEETINGS UCLA student council will limit access to a meeting dealing with a divestment/boycott resolution against Israel—because it can PUBLIC INFORMATION Cal Poly SLO journalism prof sues his employer for access to records showing the campus’s infectious disease preparedness National media groups supporting a suit challenging serious delays in public access to civil case filings in Ventura Superior Court FREE SPEECH Court: Google has a publisher’s First Amendment right to arrange search results as it pleases, including rankings of competitors
WHISTLEBLOWERS Whistleblower suits claim retaliation for accusing colleagues of altering records at the State Bar, spying for Israel at CalTech FREE SPEECH Hearing set in suit against West Covina School District for barring first grader from handing out candy canes mentioning Jesus OPEN MEETINGS Little Hoover Commission reports recent roundtable discussion of needed flexibility in Brown Act, Bagley-Keene Open Meeting Act
OPEN GOVERNMENT State Supreme Court lets stand ruling that L. A. teachers’ names needn’t be disclosed in connection with performance ratings State Supreme Court lets stand ruling that S.F. Sunshine Ordinance can’t force release of city attorney’s open government opinions FREE SPEECH Report: Young men accused of crimes are having the gangsta rap lyrics they write and perform used as evidence of their guilt Comment: Why California’s ban on handgun images in outdoor signage violates the First Amendment protection for commercial speech
At its 50th Anniversary, the Free Speech Movement at U.C. Berkeley has become a nostalgia brand easily invoked to mask how intolerant the student body, like those in so many other prestigious ivory towers, can be of speech it finds intolerable, says one of the FSM veterans. On the brighter side, the latest annual survey by the Knight Foundation shows, for the first time in its 10-year history, young people generally more supportive of the First Amendment than their teachers. Another survey by the First Amendment Center shows that Americans generally are increasingly supportive of students’ rights to speak and report as much as anyone else. A strong majority of Americans believe that high school students should be able to exercise their First Amendment rights just as adults do. The percentage of those who support this statement increased over the past year from 75% to 78%, while the percentage of those who disagree with this statement decreased from 23% to 19%. In addition, A growing majority of Americans (68%) agree that public school students should be allowed to report on controversial issues in their student newspapers without the approval of school authorities, while only 27% disagreed. When the question was first asked in 2001, Americans were almost evenly split on the issue and those who strongly disagreed with the statement dominated the response. We see a large change from 2001 through 2007 and into 2014 . . . As some evidence of how the tide may be turning, a developing controversy in the Boulder, Colorado public schools shows student dissent erupting to challenge proposals for change in a college advance placement history curriculum, which the school board majority wants to “present positive aspects of the […]
As noted by Jason Song in his report for the Los Angeles Times, Californians Aware filed suit Thursday against the board of the Pasadena Area Community College District, seeking a court-ordered reversal of a recent board-approved $400,000 severance award to its retiring superintendent, Dr. Mark Rocha. CalAware argues in its petition that the approval was hatched in two closed sessions labeled as dealing with “anticipated litigation” without explaining what litigation was anticipated, or why, or who the potential plaintiff was. The board’s attorney calls the $400,000 a “settlement and release of claims,” without revealing what the claims were. CalAware argues the closed sessions were about compensation beyond the amount Dr. Rocha was entitled to under his contract, and that the closed session agendas were misleadingly worded to avoid public awareness of the planned award.
The Student Press Law Center (SPLC), a national nonprofit watchdog for keeping records of schools, colleges and universities open to student journalists and others, is sounding the alarm about pending draft amendments to federal law that could make such information more available to the public—or far less so. The Family Educational Rights and Privacy Act (FERPA) has frequently been used by public educational institutions to foil public records requests about campus crime and other matters of legitimate general interest. Anything—not just grades, counseling and disciplinary files—remotely involving an identifiable student—from preschool to post-doc—is typically withheld as the contents of a pupil or student record, whether or not the information has to do with education or is found in the student’s file. Schools releasing information in violation of FERPA are threatened with the loss of federal funding. Here’s the SOS received today from Frank Lo Monte, SPLC’s executive director. You can help by informing us of any use of FERPA you have been met with that kept otherwise public inofromation secret. Friends, the abuse of student privacy laws to conceal public records has become a more urgent concern as news organizations are roadblocked in their attempts at covering the issue of sexual assault on college campuses (see as one of many recent examples this piece in Oregon’s Register-Guard). Sens. Markey and Hatch have floated draft legislation responding to privacy advocates that would amend FERPA in an unhelpful way for transparency, and we are urging them to hold a hearing at which those concerned about open government can be heard in hopes of opening a discussion about wholesale FERPA reform. Some background about their draft bill and a link to the draft appears here: http://www.splc.org/wordpress/?p=6277 The Student […]
OPEN MEETINGS Judge agrees with LA Times, CalAware: Coliseum Commission repeatedly violated open meeting law PUBLIC RECORDS CalAware, Orange County online news center ask high court relief from county’s invited gag order OPEN GOVERNMENT California’s high court justices cool to State Bar’s claim that its records are closed to public Governor signs bill allowing online filing, display of officials’ statements of economic interests Report: White House, deaf to routine info requests, shows singular zeal to detect, deter leakers FREE PRESS Without a First Amendment, British press freedom depends on journalistic feistiness like this OPEN COURTS Bar panel: Free from video monitoring, judges’ courtroom misbehavior happens off the record FREE SPEECH Modesto Junior College sued for barring student vet from handing out copies of the Constitution Anaheim high school apologizes for barring student from wearing NRA T-shirt depicting hunter Court asked to reconsider: Do words that offer advice, counseling lose presumed freedom of speech?