Awareness Area: Government

Water Consumption’s No Longer a Private Matter

As of today, with Governor Brown’s emergency water consumption restrictions, the Legislature can no longer justify a law that keeps secret how much water is used by whom. In 1997, the Legislature quietly passed, with no opposition, an amendment to the California Public Records Act making secret the information held by local public utility districts showing how much water or energy is being used by customers, both residential and commercial. SB 448, sponsored by the City of Palo Alto, was initially explained as a means of protecting the privacy of individuals—specifically their contact information such as home addresses and phone numbers contained in utility billing records.  Such specifics on the public record could be used by criminals to track their targets to their homes, as in the case of Rebecca Schaeffer, who was murdered by a stalker in 1989 using then open DMV information, said Sher. But by the time the bill reached final approval, a second rationale was offered by the League of California Cities, representing municipal utility districts.  As remarked in a committee consultant’s analysis of SB 448, the League’s industrial “parity” argument noted that investor-owned utility companies (e.g., Pacific Gas and Electric, Southern California Edison) are not subject to the disclosure requirements of the Public Records Act. Consequently,  investor-owned utilities are able to carefully protect the confidentiality of proprietary business and customer information.  In order to remain viable and competitive, therefore, municipal utilities must be able to offer the same degree of confidentiality protection as investor-owned utilities, the League argues. In other words, protection for business interests as well as for personal privacy dictated that utility customers’ water and energy consumption, documented in local government records, be kept secret, with some narrow exceptions: if […]

Sunshine Week Takeaway Tools from CalAware

As Sunshine Week 2015 winds up, Californians Aware offers two publications for use year round in working for governmental transparency. The free resource is a 50-page CalAware Guide, Community Watchdog: An Investigative Checklist, providing basic explanations of the Brown Act, the California Public Records Act and the judicial branch’s law providing access to information on how the courts are run, with insights and suggestions going beyond the basics as well.  And coming to in April is the fully updated second edition of The CalAware Guide to Open Meetings in California, first published in 2006. A foreword to the Community Watchdog guide observes: Sunshine laws like the Brown Act and the California Public Records Act (CPRA) are in themselves no guarantee of preventing the kind of bureaucratic organized crime that former elected and appointed leaders of the City of Bell were prosecuted for. Those crimes were said to have involved such practices as misappropriation of public funds by city council members paying themselves for momentary meetings of do-nothing boards created just to justify that pay and, on the part of the city manager and his assistant, falsifying certain contract documents and hiding others to conceal extraordinarily high rates of pay for themselves and the police chief. If officials are prepared to resort to outright lies, conspiracy and fraud to advance schemes they know the public would never accept, the open government laws may not stop them. But these and other transparency laws will make corruption much harder to commit and sustain, if reporters and citizen watchdogs understand and use them confidently and consistently. This is what was not happening in Bell—until the Los Angeles Times stumbled on to some rumors and odd gaps in information […]

Your Nominations Sought for FOI “Foilies”

It rhymes with “doilies” and it means a chance to recognize the most remarkable—but not in a good way—reactions or practices by government agencies in response to requests for information under the Freedom of Information Act or state laws like the California Public Records Act.  Here’s the invitation from the San Francisco-based Electronic Frontier Foundation, sponsor of the competition, written by Dave Maas, a San Diego investigative reporter. Got an Outrageous Public Records Story? Send Your Nominations for “The Foilies” Fighting for government records is sometimes like: … a game of Battleship, but where you have to go to court to force your opponent to tell you whether you even grazed his aircraft carrier. … finding yourself at the doors of the Forty Thieves’ cave, except that you have to rap out “Open Sesame” in Morse code with your forehead just to get a peek at the treasure. … ordering a book from an online store, then having to wait 10-30 days just to hear back that the store can neither confirm nor deny whether your item is in stock. … running the hurdles at the Olympics, but with Droid Kafka and his bureaucrobot army laying down new stretches of barricades every time you think you’re about to cross the finish line. For every over-the-top simile we can think up to describe the struggle for transparency, we can name an even more ridiculous, real-world attempt by government officials to withhold records that rightly belong to the public. And yet, EFF and accountability advocates everywhere keep pushing back, because sometimes you win and it makes a difference in the world. This year, EFF is setting out to recognize the most outrageous responses to Freedom of Information […]

Court: Ambitious public records demand not “frivolous”

The California Court of Appeal for the First District has concluded that an attorney’s overly “aggressive” demands for public records, including a proposal to search officials’ private computers for documents dealing with city business, may have been needlessly burdensome on the City of Sebastopol, but was not completely lacking in merit or intended to harass, and was therefore not “frivolous” litigation that justified ordering the attorney and his client to pay the city  its attorney’s fees spent resisting the litigation. The court’s decision in Bertoli v. City of Sebastopol echoes the rationale of the Third District Court of Appeal in Crews v. Willows Unified School District, a 2013 case concluding that while a newspaper editor’s filing a Public Records Act suit for a large number of school district records while the district was working to comply with his request may have been overly hasty and improvident, the litigation was not utterly without merit or filed with intent to harass—and therefore not “frivolous” to a degree warranting an order to the editor to pay the district’s attorney’s fees. Julia Ann Bertoli is a young woman who was crippled and brain-damaged by a car that struck her in a crosswalk at a busy intersection on the main street of Sebastopol—also a state highway route—in 2009.  Her lawyer, David Rouda, hoped that public records would show that city officials had known about the street’s dangerous condition near the accident site and had done little or nothing to mitigate it. Despite thousands of paper records provided him in response to his original requests, he came to believe that several key officials had electronic records relevant to his case on their private computers.  He offered to pay for a neutral […]

Internet license—>speech licensing?

What can the law do about online vileness? asks Erwin Chemerinsky, dean and professor of First Amendment law at UC Irvine. His answer, after reviewing two new books on the subject: Start by going back to consider what James Madison had in mind in proposing all First Amendment protections as an integral system. That system is examined by fellow professor and constitutional scholar Burt Neuborne in his book, Madison’s Music.

Court: No basis for short window on records access

The San Diego area’s Fourth District Court of Appeal has concluded that police and sheriff’s departments have no legal authority to restrict public access to the information in crime and arrest reports only to those in the recent past. That decision in Fredericks v. Superior Court parts company with the view of the Second District in County of Los Angeles v. Superior Court, which holds that law enforcement agencies can refuse to release information concerning no longer “contemporaneous” crimes. That 2000 decision has since led most if not all departments to set limits of a few weeks or so on their obligation to provide access under the California Public Records Act. As a result, using law enforcement records for research by journalists, scholars and watchdogs to trace patterns of police practices or crimes over time became impossible. The Fourth District’s opinion, issued last Thursday, creates a conflict that is likely to invite review in the State Supreme Court to settle the question. Meanwhile, the court’s other conclusion is at least as consequential for the Public Records Act as a whole, opening the door to the argument that an extraordinary burden of processing longer-term records requests—to identify and remove confidential information found in such reports—may sometimes justify either denying access or requiring the requester to pay review and redaction costs, if a judge decides that there is a correspondingly slim public interest in disclosure. The justices in fact remanded the case to the trial court for a determination on such issues, focusing not only on the department’s processing costs but the “reasonableness” of the request. The plaintiff in the case, Farhad Fredericks, sought six months of legally disclosable details about burglary and identity theft complaints from […]

Grand juries & police; torture & accountability

Should grand juries handle police shootings? Some California lawmakers may move to take police shooting cases away from the secretive grand jury and into open hearings When torture’s no crime, but exposing it is Critic: CIA’s Bush-era torturers go free, but the CIA officer who exposed their methods has been prosecuted by Obama’s DOJ Accountable government: The devil’s in the emails Expert: Senate’s torture report relied crucially on preserved emails—often the only evidence of what was going on Court: Record’s prior release must be proved Government can’t keep a record from you that’s been shared with someone else in the public—if you can prove it was shared Court: Retaliatory firing’s motive is what counts You can sue your employer for firing you on suspicion of whistleblowing—even if you never actually blew the whistle

Your ideas sought on campaign $ sunshine

The Federal Elections Commission invites you to tell it how to make campaign contribution data more transparent—by January 15.  As the Sacramento Bee pointed out in a recent editorial, The six-member Federal Election Commission is asking the public to comment about rules governing whether voters can know which interests are spending how much to win over their votes. The Commission long has been one of the more dysfunctional agencies in Washington. It splits 3-3 on virtually all issues of any significance related to campaign disclosure. But in a moment of clarity in October, the commission agreed to ask the public to weigh in on the most pressing issue before it: campaign finance disclosure. Three of the Commissioners, including Ann Ravel, recent chair of California’s Fair Political Practices Commission, are traveling the country to stir up awareness of and interest in this rare opportunity.  In a statement released to encourage participation, they said: We think it is essential to hear from anyone who cares about money in politics – especially citizens and campaign volunteers who have an equal stake in making our democracy work. We know there is growing public concern about the deluge of undisclosed spending to sway our votes. We share this concern. …Outside spending by groups that hide their donors increased from just $5 million 2006 to more than $300 million in 2012. Given this dramatic increase, the commission should consider based on public comments and testimony how to strengthen its disclosure rules so that voters know who is behind the messages intended to influence their votes. Two problems for the vast majority of citizens who want to be heard but are newcomers to the process: knowing what suggestions to make, and where […]

Online performance data of hospitals, nursing homes

PUBLIC INFORMATION Harmful, sometimes fatal hospital errors and infections in California now disclosed by NBC Bay Area investigative report online Real owners of California’s nursing homes and how the big chains perform revealed by Sacramento Bee investigative series online Police policy of allowing access to reports of only the most recent crimes going to Court of Appeal on December 11 Senate Judiciary Committee gives unanimous, bipartisan approval to FOIA Improvement Act; now on to full Senate vote OPEN GOVERNMENT Feinstein drops ag-favoring water allocation bill secretly negotiated with Republicans and criticized by excluded stakeholders

FOIA improvement, Brown Act ruling, mayor’s promises

PUBLIC INFORMATION U.S. Senate’s Judiciary Committee today takes up the Freedom of Information Improvement Act, already passed by the House OPEN MEETINGS Judge rules that Monterey County Supervisors’ frequent closed door evaluations of top management did not violate the Brown Act OPEN GOVERNMENT Comment: After eight months, San Diego’s new mayor slow to live up to his campaign promises to improve the city’s transparency