Darrell Steinberg. former presiding officer of the California Senate and recently elected as mayor of Sacramento, is making open government a first week priority with a handful of demanding amendments to the city’s new sunshine ordinance, reports Anita Chabria of the Sacramento Bee. On the agenda for Thursday’s first city council meeting of the year is adoption of not only the relatively conventional openness proposals accumulated over the past two years under then mayor Kevin Johnson but consideration of the following Steinberg transparency rules, which would include an end to the use of closed “ad hoc” committee meetings for development of policy proposals; a requirement for sending emails concerning city business through the official city server, making them potentially available for public records requests; a requirement that council members submit any proposed amendments to ordinances in writing for public disclosure prior to the meeting at which they would be discussed, instead of simply offering them orally at that meeting; a requirement that the council announce any “behest”contributions made to favored nonprofits on their behalf more than 30 days before voting on an issue of interest to the contributor; and display on the city’s website of all comments by the public s made at open council, committee and commission meetings.
The California Supreme Court ruled yesterday in a 4-3 decision that fee bills sent by private law firms to their government agency clients are confidential under the attorney-client privilege and thus exempt from disclosure by the agency under the California Public Records Act while the litigation they concern is still “pending and active,” but may be accessible when they pertain to “long-concluded” litigation. The case did not involve, and so the court’s opinion did not decide or even discuss, a request under the CPRA for records of actual fee payments to outside counsel, which typically identify the matter billed for but do not specify the nature of the work done. Thus although the public may now have to wait months or years to discover what the lawyer or law firm claimed to have earned, there should be no legally authorized delay in finding out, by a CPRA request, how much the agency is actually paying its outside counsel within a given period. The “pending and active” vis-à-vis “long-concluded” distinction made by the majority was resoundingly rejected by the dissent as unsupported by either statute or case law concerning the confidentiality of attorney-client communications. And it also leaves unclear the status of law firm invoices for legal work having nothing to do with the agency’s “pending and active” litigation, e.g. a memorandum discussing the potential impact on the agency’s policies or practices of new case law, legislation or regulations. Arguably, such updating analyses are of far greater public interest than communications in the course of litigation, since they provide a basis for the public to evaluate the agency’s reactions to the changing legal environment.
Frank P. Angel, a Santa Monica-based environmental law attorney, sent the following message to clients and colleagues this afternoon: This morning the California Supreme Court heard arguments in Smith v. City of San Jose. For all of us interested in freedom of access to governmental information and struggling to obtain public records from recalcitrant state and local public officials or agencies, thumbs up: From the Justices’ questions and comments, it seems the Court will rule that under the California Constitution and the California Public Records Act, emails and text messages of public agency officials and staff, relating to the conduct of the public’s business, must be produced to public records requesters, even if these communications were sent or received through private email or messaging accounts. This will be a big leap toward transparency as agency officials and staff will no longer be allowed to use private email or messaging accounts to hide from the public communications that concern the conduct of the people’s business, like communications about items on public agency agendas. This case probably has been more closely watched than any other involving freedom of information issues in California in recent years. Officials’ use of their private email and texting accounts to send and receive officially significant but politically sensitive communications is thought to be widespread, and could become epidemic should the court declare such messages to be immune from disclosure under the California Public Records Act. Apart from the policy issues, the case will also test the court’s respect for Proposition 59 of 2004, by which voters amended the state constitution to raise access to government records to the status of a fundamental right in California, and which holds that rules supporting public […]
Californians Aware, the nonprofit organization fighting for your rights to open government, free speech and protected reporting, needs your help as never before. After our first dozen years working in the courts and the Legislature, we need to fund a full-time executive director and a modest administrative office, relieving me to concentrate on picking battles and continuing to help those in need of individual attention. I would continue receiving a consultation fee, established last March, of $500, but we estimate total costs of this shift to be more than $100,000. Please contribute generously to help us realize this transition, and thank you in advance for doing so! You can make your gift here or send your check to Californians Aware, 2218 Homewood Way, Carmichael, CA 95608. This past year has seen several advances in open government/public information law that we can take some credit for: Transparency in the Legislature Most significant was our early consultation on and endorsement of what became Proposition 54, approved by an overwhelming majority of the electorate earlier this month. As of January 1 the California Legislature must abandon its prior practice of last minute gut-and-amend tactics, instead posting all bills on the Internet for 72 hours before a final vote in either house. And even earlier in the process, Proposition 54 will require the Legislature to audiovisually record every committee hearing or floor session, post the recordings on the Internet within 24 hours, and store downloadable copies of the footage on a publicly-accessible database for at least 20 years. Finally, those present to observe such proceedings can record them on their own devices and republish the product as they please. Accessible Police Dashcam Videos Second most significant is the decision […]
WASHINGTON, November 21, 2016 – Today, a coalition of organizations —including Californians Aware— that are committed to promoting government openness and accountability, as well as the defense of civil liberties, civil rights, and privacy rights, is calling on President Obama to take urgent steps to disclose information related to critical areas of national security-related secrecy before the end of his term. Their letter urges the President to take concerted action to provide the public, Congress, and the courts with information relating to surveillance programs, use of torture, use of drones, and the secret interpretations of law authorizing such programs. This information is needed to ensure that past secret actions, policies and practices, particularly those declared illegal or unconstitutional, are not repeated. The President’s legacy and his first day embrace of open government and transparency goals are dependent on ensuring this information is available to the public before the end of this administration. The letter asks the President to take steps to ensure the preservation of the Senate report of the CIA’s Detention and Interrogation Program (a.k.a. “The Torture Report”), by directing senior staff in the intelligence community to read the report, and encourage the National Archives to make a determination on whether the report is a federal record. The preservation of the Torture Report is a matter of immediate concern, particularly following acknowledgment by the CIA inspector general’s office that it had “mistakenly” destroyed its only copy of the report. The other transparency and accountability measures identified in the letter include the release and disclosure of the following information: OLC Opinions: a summary of all formal Justice Department Office of Legal Counsel (OLC) opinions (prioritizing those relevant to national security & civil liberty matters); FISC Opinions: […]
The Obama Administration has left President-Elect Donald Trump a sobering array of options to deter journalists and whistleblower from going public with information it wants to keep secret—or to punish them for doing so—notes Tim Mak in The Daily Beast. For nearly eight years, President Obama massively expanded his authority on national security issues: on the prosecution of whistleblowers, secret surveillance courts, wars without congressional authorization, and drone campaigns without public oversight. During this time the left, with the exception of some civil liberties groups, remained largely silent. But now this entire apparatus is being handed over to Donald Trump, a president with a penchant for authoritarianism, who will no doubt point to Obama as precedent to justify the continuation, and perhaps broadening, of these national security excesses. The article mentions most of the Obama mechanisms providing precedent for aggressive secrecy controls, but does not mention the Insider Threat program in which the national security agencies are now preemptively training internal counterintelligence agents to look for and detect potential leakers of information. The program was reported by Steven Aftergood of the Federation of American Scientists Secrecy News blog, who commented that it was developed by the Obama Administration in order to protect against actions by government employees who would harm the security of the nation. But under the rubric of insider threats, the policy subsumes the seemingly disparate acts of spies, terrorists, and those who leak classified information. The insider threat is defined as “the threat that an insider will use his/her authorized access, wittingly or unwittingly, to do harm to the security of the United States. This threat can include damage to the United States through espionage, terrorism, [or] unauthorized disclosure of national security […]
The passage of Proposition 54 and both what it changes and why are well described here—with all the “woulds” to now be read as “wills”. Although the measure deals with legislative rules and procedures that never capture most Californians’ attention, the result will be more than inside baseball. Not only will what lawmakers, lobbyists and citizens say and do in committee testimony be officially recorded, soon uploaded to the Internet and made available to the public in digital form for as long as 20 years, but anyone in a committee hearing audience will now be free to use their own cameras, smartphones or audio recorders to document whatever they can see or hear—and do what they please with what they record. As for the part of the new policy most frustrating to the legislative majority, the practice of making last minute changes to bills—either adding new content never heard in committee or radically “gutting and amending” them into altogether unrelated legislation shortly before a final vote in the Assembly or Senate—will be at an end. The few vocal opponents to Proposition 54 complained that without the ability to use these expediting maneuvers, certain controversial legislation of clear interest to the public, left in the record for 72 hours before a house vote, could be derailed by overwhelming special interest lobbying opposition. They never explained why lawmakers could not have the spine to resist such pressure, or if not, at least the conflict-averse option of being out of touch for a few days.
An interesting discussion about the future of the Freedom of Information Act under the Trump Administration began this morning on FOI-L@LISTSERV.SYR.EDU, the listserv for FOIA practitioners, journalists and other professionals. The first post: Short of a major elector defection… we should probably start figuring out how to deal with the next administration (and Congress). What can we expect to happen over the next 4 years (relevant to list)? What good effects could we get from this, short or long term? What can we do to make those happen? The first response: “Same $hit, different adminisration.” The second response: (That’s) right. The U.S. elected a president in 2008, and re-elected him in 2012, who promised to conduct the most transparent administration in history. The requester community took a wait-and-see attitude, and we were disappointed when the metrics demonstrated that many things about FOIA got worse, not better. We discovered in 2015, after trying to obtain Secretary Clinton’s work-related emails under FOIA since at least 2009, that she was managing a private email server in her basement to conduct all her official government business, effectively removing all her communications from FOIA until the issue erupted as a political scandal. Clinton’s senior advisers at the State Department testified that they never searched their email accounts for records responsive to FOIA requests, even though such requests were logged. We saw records redacted for political considerations, despite promises not to do so. Other Cabinet officials under Obama were identified using “secret,” non-public email addresses to conduct government business, and it was disputed whether those accounts were searched in response to FOIA requests. After a period when few news organizations litigated FOIA disputes, we are seeing appreciable increases on that front. […]
Proposition 54 on Tuesday’s statewide ballot—strongly supported by Californians Aware—would impose on the California Legislature requirements substantially equivalent to those in the Ralph M. Brown Act that the Legislature has mandated for years on local government agencies. Three major parallels are immediately apparent. 72 Hour Notice to the Public The Brown Act states, in Government Code section 54954.2: At least 72 hours before a regular meeting, the legislative body of the local agency, or its designee, shall post an agenda containing a brief general description of each item of business to be transacted or discussed at the meeting, including items to be discussed in closed session . . . The agenda shall specify the time and location of the regular meeting and shall be posted in a location that is freely accessible to members of the public and on the local agency’s Internet Web site . . . No action or discussion shall be undertaken on any item not appearing on the posted agenda. Proposition 54 would add this provision to the California Constitution: No bill may be passed or ultimately become a statute unless the bill with any amendments has been printed, distributed to the members, and published on the Internet, in its final form, for at least 72 hours before the vote, except that this notice period may be waived if the Governor has submitted to the Legislature a written statement that dispensing with this notice period for that bill is necessary to address a state of emergency . . Spectator’s Right to Record The Brown Act states, in Government Code sections 54953.5 and 54953.6: Any person attending an open and public meeting of a legislative body of a local agency shall have […]
A bill signed by Governor Brown requires local government bodies to link their meeting agendas to their websites’ home pages. AB 2257 by Assembly Member Brian Maienschein, signed by Governor Jerry Brown last Thursday, will beginning in January 2019 require local government councils, boards and commissions that have websites to post their meeting agendas on their primary site homepage, accessible through a prominent, direct link. A local body would be exempt from this requirement if it has an “integrated agenda management platform, namely one the publishes and archives all information about a specific meeting agenda,” provided that the most current agenda is the first available. See, for example, the agendas of the Sacramento City Council. Agendas posted to meet these requirements will be required to be: “retrievable, downloadable, indexable, and electronically searchable by commonly used Internet search applications; “platform independent and machine readable; and “available to the public free of charge and without any restriction that would impede the reuse or redistribution of the agenda.” Author Maienschein stated his rationale for the requirements thus: This legislation addresses two key deficiencies in current law; format and accessibility of online postings. Posting an agenda can mean many different things with respect to visibility and accessibility of the document. Many agendas are buried in agency websites or otherwise not intuitively navigable by a site visitor. Formatting may restrict the capacity for citizens to search for or access agenda information . . . AB 2257 will update the Ralph M. Brown Act by ensuring that meeting agendas are posted in a consistent, visible location on the homepage of the local agency’s internet website. It specifies that it must be a prominent, direct link to the agenda and prevents the […]