An unsigned single-sheet list of “talking points” attributed to California Senate President pro Tempore Darrell Steinberg is circulating just below the public surface, in response to a wave of unprecedented criticism of the Legislature in the formal press and social media for having “gutted” or “eviscerated” or (our term) “neutered” the California Public Records Act in the recently passed twin trailer bills, AB 76 and SB 71. If you’re new to this development, the short explanation is that to realize the earlier approved state budget, a number of changes in the law have been and will be made by trailer legislation. These changes may have been remarked in earlier budget subcommittee hearings scattered over the past few months, but many if not most never caught the attention of either news or social media—and some of those suspending Public Records Act requirements were simply never discussed in public until they showed up in these bills last Wednesday, to be passed without further discussion on Friday. The requirements that lawmakers (the Democrat majority, that is) decided to downgrade from legally enforceable mandates to optional “best practices” all have to do with how local government agencies are to respond to citizens’ requests to get a copy of, or even just look at, public records. If the Governor signs these bills into law, local agencies will have the option to no longer: Provide a response to a requester within 10 days (extendable by 14 more days in unusual circumstances), informing him or her which information if any will be provided, and which if any will be withheld. Provide the notice in writing if the request was made in writing. Provide a specific citation to the law(s) permitting the agency [...]
CalAware’s President Urges You to Citizen Up
The California Public Records Act (CPRA) is based on the fundamental principle that the public has a right to public documents. Passed into law in 1968, it has been a part of our lives for so long that it’s easy to take it for granted—believing that it will always remain as it is. But as recent state budget-related votes have shown, that’s not always true. And today we are back fighting to defend portions of the CPRA that many assumed would never go away, such as requiring local governments to cite a legal reason before turning down requests for records, requiring a 10 day response time, and providing assistance to the public in making effective records requests. For some background, read Terry Francke’s June 14th article, Legislature Moves to Neuter the Public Records Act. So why does this even matter? Well, it matters because information is power and what you don’t know can hurt you. Take, for example, the ongoing battle between two public agencies—he San Diego County Water Authority (SDCWA) and the Metropolitan Water District (MWD) of Southern California. The SDCWA is a wholesale supplier of water and MWD is its main supplier. MWD sets the rates charged for your drinking water and passes those rates on to SDCWA. Setting those rates is a complicated process, so the more information about how those rates were set, the better. And that’s where this battle gets even more interesting. According to SDCWA, there have been lots of secret meetings by certain MWD member agency managers where they discussed such things as eliminating funding for SDCWA’s long range projects and conservation measures and setting rates the public pays for drinking water. And this was being done outside [...]
Legislature Moves to Neuter the Public Records Act
Let everyone you know who cares that their right to a prompt and informative response to a request to copy or even see public records of local government agencies is being switched off indefinitely by the Legislature, without a single public hearing debate. With the relevant trailer bill amendments in print today (SB 71 and AB 76) which will go into immediate effect with the budget, it’s clear that the California Public Records Act (CPRA) mandate suspensions are far worse than had been anticipated. If they go into effect, local agencies including counties, cities, educational and special districts and others will no longer have the legally enforceable obligation to: assist requesters to frame and direct their written requests in effective ways; provide electronic records in a format specified by the requester, even if the agency can do so without special cost; provide a determination notice within 10 days as to what if any information will be released; provide a notice within 10 days that up to an additional 14 days will be needed to make the determination, and what justifies the added delay; provide any written response to the requester at all, even if the request was in writing, including a written statement of the legal basis for withholding information. These CPRA requirements are still encouraged in the bill as “best practices,” and agencies are required to state orally (but not in writing) at their first public meeting of the calendar year beginning in 2014, any intention not to observe these obligations. But failing to make that statement does not prevent the agency from changing its mind, and in fact an affirmative commitment to continue would not be enforceable in court. This blog stated in [...]
Civil Liberties v. Surveillance: a Gold Standard?
With all the “Yes, but” debate filling the air on the propriety of secret national security surveillance vs. whistleblowers’ disclosures thereof, it comes as a relief (and something of an astonishment) that this very week an international collaborative of experts and activists on all sides of these issues has published a 35-page report, based on more than two years of research and debate, called “Principles on National Security and the Right to Know.” As reported by Steven Aftergood, who tracks national security secrecy for the Federation of American Scientists, The Principles present guidance on specific types of information that the drafters believe may legitimately be withheld from disclosure on national security grounds (e.g. current war plans), as well as categories of information that should not be withheld on national security grounds “in any circumstances” (e.g. information on gross violations of human rights). The Principles are the product of an international initiative, and they are not the same as U.S. policy writ large. In fact, some of the Principles are inconsistent with current U.S. government practice. Thus, one principle would preclude the use of secret interpretations of law in the conduct of intelligence surveillance. “The overall legal framework concerning surveillance of all kinds, as well as the procedures to be followed for authorizing surveillance, selecting targets of surveillance, and using, sharing, storing, and destroying intercepted material, should be accessible to the public.” (Principle 10E). Another principle would provide strong protection to persons who publicly disclose government wrongdoing involving classified information, under certain specified conditions. (Principle 40). The tools of transparency can be used to attack an open society– by infringing on personal privacy, by violating confidentiality in the exercise of religious freedom or free association, or [...]
State Budget Deal: Good News Outweighs Bad?
The consensus package of state budget tradeoffs emerging from wrangling by the Governor and Legislature in recent days has some losses for open government but, depending on which access rights one uses more, some gains that may be offsetting in the long run. As reported today by the California Newspaper Publishers Association (CNPA), two current provisions of the California Public Records Act are likely to be suspended for the 2013-2014 fiscal year, for fear of triggering unaffordably large demands for mandate cost reimbursement by local and state agencies. The requirements are to provide electronic copies of records in any format used by the agency itself without charge except to recoup literal costs of duplication, and to help information seekers make successfully framed records requests, determine where the records are and whom to request them from, etc. These provisions would be identified as “best practices,” not enforceable legal requirements, and any agency planning to stop observing them would be required to publicly announce that fact at the beginning of next year. Californians Aware has strongly criticized these mandate suspensions. On the other hand, reports CNPA, lawmakers have rejected the judicial branch’s bid to drastically hike the fees chargeable for locating and copying court records. Instead, a budget trailer bill would radically increase sunshine on the court system by directing its governing body, the Judicial Council, to adopt rules increasing public rights to attend its meetings and for the first time opening up to public access the meetings of its numerous standing committees, where most of the substantial proposals for court governance are initially worked out. According to a report by Cheryl Miller for the Recorder, the idea originated in the Assembly as a tradeoff: the courts [...]
Court: Water Department Must Yield Records
A judge has ordered the Los Angeles Department of Water and Power (LADWP) to honor an ambitious public records request by the San Diego Water Authority (SDWA), according to a news release issued by the latter. The records are being sought for evidence that LADWP and other members of the Metropolitan Water District of Southern California conspired, through private meetings of their general managers, to deprive the San Diego agency of water at the appropriate rates. Other member agencies were cooperative in providing responsive records, showing that “LADWP’s top management was very active in the secret meeting group,” the news release says.
The Worst Week in Memory for Basic Liberties
The current IRS’s selection of conservative groups seeking tax-free nonprofit status as a class suitable for suspicion and close investigation may not be in quite the same league as President Richard Nixon’s efforts to get the IRS to audit his political enemies—for one thing, there’s no evidence so far that the Obama White House knew about, much less directed the current policy. But that does not mitigate the gravity of the episode, which should be a warning to groups all around the political compass of just how frail their First Amendment rights of speech, petition and association can be in the toils of large, remote, powerful and secretive governmental institutions. But equally alarming is the other scandalous invasion of First Amendment rights disclosed this week—the U.S. Justice Department’s secret and wholesale seizure of phone records for more than 20 lines used by more than 100 Associated Press reporters and editors for a two month period last spring. That abuse looks very much like the outgrowth of a White House mania for plugging leaks and hunting down leakers not seen since Nixon’s notorious Plumbers era. That the secrets said to have been leaked last year concerned national security does not distinguish the episode from the scandal 40 years ago, which also dealt with putative national security alarms—Daniel Ellsberg’s leak of the Pentagon Papers to the New York Times. And in any event the question must be asked: What kind of security does the nation have under an executive willing to abridge the freedom of the press on a wholesale basis to find and punish those who would inform the public about how the now perpetual Global War on Terror is being waged? The GWOT phrase is [...]
Two Court Rulings Underscore Press Freedoms
Rulings this week by trial judges in the state’s largest court as well as one of its smallest emphasized the right of the press to get information as it arises in legal proceedings on the one hand and to keep what it does not publish from being exploited by prosecutors on the other. In the first instance, as reported by Paul Pringle and Rong-Gong Lin II for the Los Angeles Times, Los Angeles Superior Court Judge Luis A. Lavin ruled that the Times had a First Amendment right to cover depositions of L.A. Memorial Coliseum Commission officials in a case brought by the newspaper and Californians Aware alleging repeated violations of the open government laws. The newspaper and CalAware accuse the Commission of illegally withholding records and conducting a series of closed sessions over the last year and a half in planning a long-term lease of the Coliseum to the University of California. The Commission’s lawyer had sought a court order barring the Times from reporting testimony by Coliseum officials as it emerged in depositions, but Judge Lavin agreed with attorneys for the plaintiffs that the press has every right to cover discovery proceedings in connection with a public court action brought against the government concerning what the judge called “an important landmark with cultural and historic significance.” The second ruling was by Glenn County Superior Court Judge Donald Cole Byrd, who quashed a subpoena from District Attorney Bob Maloney seeking Sacramento Valley Mirror editor Tim Crews’ appearance and surrender of unpublished notes concerning the arrest of a couple being tried on drug charges. The Mirror interviewed and published comments by the couple at the time of their arrest in 2011, and Maloney apparently believed [...]
Supreme Court Balkanizes States’ Sunshine Laws
Public searching of state records nationwide just got dumbed down in a U.S. Supreme Court decision that is bad for both commercial information collectors and journalists hoping to use freedom of information laws to follow a story wherever it goes—and quickly. Last week the court ruled that the Constitution is not violated when states confine the right of access to their public records to their own residents. The parties immediately frustrated by the ruling included a Rhode Islander seeking Virginia records to show that its bureaucratic delays had cost him child support payments and a Californian seeking real estate tax documents for a business client. Virginia denied the use of its public records access law to both because of their non-residence. According to Adam Liptak’s report for the New York Times, Justice Samuel A. Alito Jr., writing for a unanimous court, said that provisions of the Constitution meant to ensure that citizens of different states are treated the same in many settings did not apply to what he called a noncommercial service whose fixed costs were borne by state taxpayers. Much of the information was available in other ways, he added. “Requiring noncitizens to conduct a few minutes of Internet research in lieu of using a relatively cumbersome state FOIA process,” he wrote, “cannot be said to impose any significant burden.” Justice Alito wrote that at least seven other states had laws limiting requests for information to their citizens. The Virginia law contains an exception for representatives of newspapers and magazines with circulation in Virginia and of radio and television stations that broadcast there. It does not address Internet publications. But states are not required to give news media any concessions, and a Sacramento Bee [...]
Open Government Back Home and under the Dome
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 [...]