Awareness Area: Government

Recording legislators in action—or in revolt

The sit-in demonstration by House Democrats this past week, attempting to force a vote on a relatively modest gun measure (denying sales to those on the federal no-fly list) became visible and audible to the world, thanks to several members’ video-capable smartphones and internet posting software—despite Speaker Paul Ryan’s ordered shutdown of live C-SPAN coverage. As noted in a Sacramento Bee editorial, technology, and especially social media applications and impulses, have thus ended Congressional leaders’ traditional blackout power over how much the public is allowed to see and hear of what its representatives say and do. Turning the video cameras off at certain key points or restricting what they are permitted to focus on—by order of the leadership—is likewise not unknown in the California Legislature. That fact has led the authors of the initiative ballot measure called the California Legislature Transparency Act to propose amending the state constitution to give spectators in any open committee or house proceeding the right to make and share, as widely and as soon as they please, their own video and/or audio recordings of anything they can see or hear. The Act’s language, expected momentarily to be placed on the November ballot, includes the following provision: The proceedings of each house and the committees thereof shall be open and public. The right to attend open and public proceedings includes the right of any person to record by audio or video means any and all parts of he proceedings and to broadcast or otherwise transmit them; provided that the Legislature may adopt reasonable rules . . .regulating the placement and use of the equipment for recording or broadcasting the proceedings for the sole purpose of minimizing disruption of the proceedings. Any […]

Democrats pursue “transparency lite” strategy

Nervous that voters in November might pass a widely endorsed ballot measure to end eleventh hour surprise legislation in Sacramento, the Democrat majorities in the Senate and Assembly are working on a tamer competing measure they hope will get more votes. Were it to get the most votes, the citizen initiative-launched California Legislature Transparency Act (CLTA) would not only put a three-day reaction pause (the same as in the Brown Act’s rule for local government agency action) between a proposal’s committee-approved form and its floor vote in either the full Assembly or Senate. It would also:  require all legislative hearings and floor sessions to be video-recorded, made promptly accessible on the internet, and archived for 20 years; and  give any citizen spectators in these sessions the right to make their own videos of whatever they can see or hear, and share or publish them as they please, the same as in the Brown Act. Moreover, the CLTA would become part of the state constitution, and as such could only be amended or repealed by a vote of the people. Four reform bills seeking the 72-hour delay before a vote in either house have been introduced in the last four years—three by Republicans and one by the author of the current Democrat transparency measure. Not one was even assigned to a committee, much less given a hearing. In reaction to the Democrats’ recent rush to adopt their own ballot measure, editorials in the Orange County Register, the Los Angeles Daily News and the San Francisco Chronicle are crying foul.

Federal FOIA Improvement Act goes to the President

The U.S. Senate yesterday sent to the President, who is widely expected to sign it into law, S. 337, the Freedom of Information Act (FOIA) Improvement Act of 2016, after years of slow progress and setbacks in Congress. The bipartisan bill governing public access to federal agency records reflects the work of sponsoring Senator John Cornyn (R-Texas) and Senator Patrick Leahy (D-Vermont), as well as Reps. Daryl Issa (R-California) and Elijah Cummings (D-Maryland). The bill amends the Freedom of Information Act (FOIA) to, as described by CONGRESS.GOV, require federal agencies to make their disclosable records and documents available for public inspection in an electronic format; require agencies to proactively make available for inspection in an electronic format records that have been requested three or more times (frequently requested records) prohibit an agency from charging a fee for providing records if the agency misses a deadline for complying with an FOIA request unless unusual circumstances apply and more than 5,000 pages are necessary to respond to the request prohibit an agency from withholding information requested under FOIA unless the agency reasonably foresees that disclosure would harm an interest protected by a FOIA exemption or disclosure is prohibited by law (presumption of openness); limit the FOIA exemption for agency communications (deliberative process privilege) to allow the disclosure of agency records created 25 years or more before the date of a FOIA request; require the Office of Government Information Services (OGIS) to offer mediation services to resolve disputes between agencies and FOIA requesters; expand the authority and duties of the Chief FOIA Officer of each agency to require officers to serve as the primary agency liaison with OGIS and the Office of Information Policy; establish a Chief FOIA […]

How private email could neuter the Brown Act

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 […]

Huge loan to agency manager in closed session

The governing board of one of California’s largest public agencies wholesaling water to local authorities gave a principal manager a $1.4 million low interest loan in a closed session, the Associated Press reports, despite the Brown Act’s requirement that the compensation of non-union “unrepresented” employees must be approved by final action in open session. According to the AP story by Ellen Knickmeyer, the 2007 loan by the Fresno-based Westlands Water District has never been repaid, its principal and interest have now grown to $1.57 million and the recipient, then Chief Deputy General Manager Jason Peltier, has moved on to head the San Luis & Delta-Mendota Water Authority in Los Banos, without mentioning the loan in his state-mandated financial interest disclosures until recently. The board never announced the loan at the time, or even discussed it publicly. Chief Operating Officer Dan Pope told the AP that it never went on the public record because the board approved it in closed session. The Brown Act provides, in Government Code section 54957.6 (a): Notwithstanding any other provision of law, a legislative body of a local agency may hold closed sessions with the local agency’s designated representatives regarding the salaries, salary schedules, or compensation paid in the form of fringe benefits of its represented and unrepresented employees . . . Closed sessions held pursuant to this section shall not include final action on the proposed compensation of one or more unrepresented employees.  

Governor vetoes military surplus transparency

Governor Edmund G. Brown Jr. has vetoed AB 36 by Assembly Member Nora Campos (D-San Jose), which would have required local agency governing bodies with authority over law enforcement agencies to approve in an open session acquisition of federal surplus military equipment.  The veto message reads in part: Transparency is important between law enforcement agencies and the communities they serve, but it must be tempered by security considerations before revealing law enforcement equipment shortages in a public hearing.  This bill fails to strike the proper balance. Moreover the bill is unnecessary, as President Obama’s Executive Order 13688 will implement a similar requirement for governing bodies to grant approval of surplus military equipment. The particular requirement Brown refers to states that, as one of many criteria to be fulfilled as part of the application process, law enforcement agencies must provide “evidence of civilian governing body’s review and approval or concurrence of the (law enforcement agency’s) acquisition of the requested . . . equipment.”  Such a review and approval or concurrence could be accomplished, under the Brown Act, only at an open and public meeting.  The Executive Order thus fails to strike what the Governor believes to be “the proper balance” between transparency and “security considerations” much more clearly than AB 36. Campos briefly amended her bill at the last moment to allow local bodies to discuss their departments’ application for equipment in closed session—and keep the shopping list secret—but then quickly withdrew that provision when CalAware, the California Newspaper Publishers Association and at least two major newspapers attacked it.  It may be that another consideration in the about-face was that satisfying Executive Order 13688’s application process would have been next to impossible given the secrecy authorized […]

Public records show how government really works

By Tim Crews Reprinted with permission, The Sacramento Bee   “No, you can’t see it.” That refrain is what people unaccustomed to using the California Public Records Act are likely to get from most city, county and state government officials. That’s a shame, because there was a time when officials were more or less open about the people’s files. Al Calonico, a former city manager of Orland in Glenn County, told me 26 years ago, “These are the files. Just put everything back where you found it.” The only thing segregated and locked was one drawer of personnel files. That would be inconceivable today. The Public Records Act helps the average citizen and journalist – I count myself as both – discover how government really works. However, sometimes it takes patience, prodding and a willingness to go to court. I have used the act to find how much public money is being spent on political campaigns, including school district spending on bond issues, which is against the law. Fragments of documents from the Glenn County Office of Education led us at The Valley Mirror to believe that public money was used for Willows Unified School District election matters, a violation of law. We asked for a year’s worth of their emails. They refused. They withheld. They stalled. We sued. A local judge ruled for the school district. On appeal, we prevailed. Writing for a unanimous three-justice panel of the 3rd District Court of Appeal in Sacramento, Justice Andrea Hoch said the appellate record “shows Crews’ request was based on his decision to engage in a journalistic investigation of whether (former Willows Unified School District Superintendent Steve) Olmos or the district misused public property.” The appeals […]

A.G.’s New “Open Justice” Site Helpful, But Only a Start

By Kelly Davis, Guest Contributor Since the early ’90s, the California Department of Justice has allowed public access to data it receives on all deaths that occur in law enforcement custody — jails, prisons, state hospitals — during the process of arrest or later in confinement. This disclosure is required by state law, the result of Assemblyman John Burton’s AB 2302, which he carried in 1993 after an unusual spike in inmate deaths. The intent of the bill, as a 1993 Los Angeles Times article put it, was to require that “reports explaining the circumstances of the deaths of state prison inmates … be made available for public review.” But the transparency and opportunity for public scrutiny Burton envisioned never happened. While state agencies do report all deaths in custody to the DOJ — I know because I’ve worked with these data to report on inmate deaths in San Diego — that information’s not readily accessible to the public. You have to file a California Public Records Act request, and there’s been only one report, published a decade ago, analyzing the data. But that changed last week. On Sept. 2, state Attorney General Kamala Harris rolled out the DOJ’s new Open Justice website, which breaks down three data sets — arrest rates, deaths in custody, and law enforcement officers killed or assaulted — into user-friendly charts and graphs. There’s a lot to like about Open Justice, starting with its mission statement, which describes the website as “a transparency initiative… so we can understand how we are doing, hold ourselves accountable, and improve public policy to make California safer.” A lot of what the data show isn’t new or surprising: most inmates die from natural causes […]

Update: Campos Restores Transparency of Military Hardware Buys

UPDATE: THE CALIFORNIA NEWSPAPER PUBLISHERS ASSOCIATION REPORTS: “After media pressure by the Sacramento Bee and Los Angeles Times, CalAware’s blog post, and our lobbying efforts in the Assembly today, Assemblywoman Campos’s office has agreed to resend the bill to the Senate for amendments to completely remove any reference to a closed session in the bill. AB 36 will now require that acquisition of military equipment must be discussed/voted on in open session.” ORIGINAL POST: Assembly Member Nora Campos (D-San Jose) has at the last minute, and without a single public hearing, amended her AB 36 to allow city councils to deliberate in closed session on whether to pass, modify or abandon a proposed ordinance on purchase of military equipment for their police departments. The bill was originally introduced to ensure that decisions on purchase of military surplus weapons and other tactical gear would be made only by local government bodies at open meetings subject to the Brown Act.  The measure was partly in reaction to deployment of military equipment to quell restive crowds in Ferguson, Missouri last summer, and partly prompted by the public outcry of citizens questioning the Davis Police Department’s purchase of an MRAP armored truck. The department reacted by agreeing to dispose of the vehicle. August 24 author’s amendments to AB 36 have effectively neutered it not only by exempting county boards of supervisors and any other local bodies where the law enforcement agency reports directly to an elected officer, but by allowing city councils to retire into closed session to deliberate about adopting an ordinance authorizing police purchases of military hardware, with the approved shopping list kept secret. The amendment reads: A legislative body of a local agency may hold a […]

Court: Mayor Can’t Bar Gadfly’s Use of City’s Videos

As noted Friday by Jon Healey in his Los Angeles Times blog post, a U.S. District Court judge has ruled that Inglewood Mayor James T. Butts, Jr. had no power to claim copyright protection over city-created video records of its council meetings, and even if he had that authority, gadfly Joseph Teixeira’s  use of selected clips from the video to make public safety points on Youtube would be protected as a fair use of the material. Teixeira was defended by Davis Wright Tremaine attorneys Thomas Burke and Dan Laidman.  Laidman is a member of the board of directors of Californians Aware and was alerted to the problem by CalAware. A Times editorial in June predicted the case’s outcome and its rationale. Inglewood resident Joseph Teixeira is a pointed critic of Mayor James T. Butts Jr., having posted several videos to YouTube over the years that accuse the mayor of lying to constituents and being a lousy public servant. In other words, he’s the sort of irritant that elected officials around the state have to put up with on a daily basis. But the city of Inglewood responded in a novel and disturbing way: It sued Teixeira for copyright infringement because he used snippets of the city’s official videos of council meetings to support his criticisms. A federal judge should throw out the city’s lawsuit and send its leaders to a remedial class on the 1st Amendment. There’s something fundamentally outrageous about using tax dollars to sue a taxpayer over the use of a public record that taxpayers paid to create. The city’s position is legally questionable too: According to a California appeals court ruling in 2009, the state Public Records Act allows local governments to […]