Awareness Area: Government

Suicide Facts Are Matters of Public Record

Was the Marin County Sheriff’s spokesman following the law in releasing most of the factual details about Robin Williams’ death in a press conference last week? Was he acting appropriately in doing so? Why is it important for the public to get as many of the facts as possible? Here is how that spokesman, Lt. Keith Boyd, explained his disclosures when asked by a reporter. The Sheriff’s Office understands how the release of the kind of information you heard yesterday may be viewed as disturbing by some, and as unnecessary by others, but under California law, all that information is considered “public information” and we are precluded from denying access to it.  These kinds of cases, whether they garner national attention or not, are very difficult for everyone involved.  Frankly, it would have been our personal preference to withhold a lot of what we disclosed to the press yesterday, but the California Public Records Act does not give us that kind of latitude . . . To date, we have received a staggering number of formal Public Act requests (for the 911 dispatch recordings) and we are required by law to make those disclosures within 10-days.  While we continue working with our County Counsel’s Office to determine if there might be an exemption in the Public Records Act that would allow us to withhold those tapes, my past experience has been that there is not and we will once again have to do what the law requires us to do. The obligation to release 911 dispatch tapes has not been addressed by a court so far, but the law on coroner’s reports is clearer. In California all information held by state or local government agencies […]

Fight to Get Names of Police Shooters Not Over

Although the California Supreme Court ruled recently in Long Beach Peace Officers Association v. City of Long Beach that the names of police and other peace officers who fire their weapons on duty are presumed to be matters of public record, newspapers and others are meeting abiding resistance to disclosing them. To take two examples, the resistance may come from the officers’ employers, as with the City of Salinas, which contends that there have been specific threats against the officers—evidence of which the high court said may justify withholding of shooters’ names—or from the officers’ unions, as with the Palm Springs Police Officers’ Association, which contends that the high court’s ruling does not apply to a request by the Palm Springs Desert Sun at all. That newspaper, as reported by staff writers Colin Atagi and Brett Kelman, asked Palm Springs for the names of its officers who discharged their weapons from January 1, 2009 to the present, a list which might show multiple incidents involving a particular officer still on the force. The city said it was willing to disclose the names, but the POA yesterday obtained a temporary restraining order and is seeking a permanent injunction to block release by the city, arguing several points, including that the Long Beach decision applied only to officers currently under investigation, not to past incidents; that release of shooters’ names must be bargained with the union as a working condition; and that the officers were crime victims (or else they would not have fired their weapons). Meanwhile in Salinas, the Desert Sun’s sister Gannett newspaper, the Salinas Californian, was among those who have been rebuffed by the city in their requests for the names of officers involved […]

Watchdog Citizen Arrests Park District Board

An entire seven-member park district board was put under citizen’s arrest for refusing to let the public speak at a meeting—and the sheriff said the arrest had been made responsibly and would be pursued with an investigation and report to the attorney general.   The arrest took place in Clark County in downstate Illinois on May 12,  after a warning by the arresting citizen was disregarded by the board’s attorney, reportedly the daughter of the board president. The event, which occurred when the board at a special meeting refused to allow public comment on the status of the executive director  and other issues by some 30 assembled citizens after a two-hours-plus closed session, is reported here, video recorded here and applauded here. In California as in Illinois, a local government body member can be prosecuted for a misdemeanor violation of the open meeting law.  The Brown Act makes the prosecutor’s burden of proof quite difficult, however. Government Code Section 54959 provides: Each member of a legislative body who attends a meeting of that legislative body where action is taken in violation of any provision of this chapter, and where the member intends to deprive the public of information to which the member knows or has reason to know the public is entitled under this chapter, is guilty of a misdemeanor. The requirements for making a citizen’s arrest in California are set forth in some detail in an article provided by the Alameda County District Attorney’s office. Apparently this enforcement procedure has never been used in connection with a perceived Brown Act violation, but there are frequently enough layman’s misunderstandings of what the Brown Act requires and prohibits that making a citizen’s arrest in such circumstances should […]

Whistleblower Punished for Sounding Alarm on Parole Violators

The Department of Corrections has punished a retired parole officer for reporting that parole-violating sex offenders can’t be kept in jail, reports CNN. Thirty-year veteran Susan Kane last November told a CBS affiliate television station that the San Joaquin County Jail was being forced to release parole violators, including sex offenders, after only a few days’ stay behind bars because of overcrowding resulting from the “Realignment” transfer of state prisoners to county facilities. Now the Department of Corrections has in effect fined her $3,000 for not clearing her statement with supervisors, although she expressly gave her opinions as a concerned citizen and not a public official.

CalAware Sues Salinas for Access to Council Calendar

Californians Aware has sued the City of Salinas for access to a planning calendar used by the city clerk to keep the city council apprised of items set for addition to coming meeting agendas. The action, filed in Monterey County Superior Court last Thursday, follows a local resident’s four-month effort, begun last October 15, to persuade City Clerk Patricia Barajas to allow inspection of the list of reports, discussion and action items awaiting assignment to future council agendas. An example of how the document is used is shown in video excerpts from the November 19, 2013 and January 7, 2014 meetings in which a council member thanks Ms. Barajas for providing the council with “a calendar of upcoming agenda items, reports and so forth,” and a “2014 calendar . . . for future agenda items.” Deputy City Attorney Anais Aquino informed the resident on February 18 that “The entire document is a draft, exempted from disclosure.” When CalAware repeated the resident’s request, Ms. Aquino replied that “the document you seek, a list of unscheduled future agenda items, . . . is privileged and will not be disclosed pursuant to Government Code 6254(a) as a preliminary draft, note or memoranda.” Case law limits that exemption to records not retained in the ordinary course of business, reflecting the author’s “recommendatory opinion” rather than factual information, and then only if the public interest in withholding the document outweighs the public interest in disclosure.      

A July 4 Salute to FOIA’s Two Fathers

  The Freedom of Information Act, authored by Sacramento’s own Congressman John E. Moss, (left) was signed by President Lyndon Johnson on July 4, 1966.  It took more than a decade to get the legislation to LBJ’s desk, and it originated from Congress’s own frustation at being denied Executive Branch information.  By the time it came to be signed, the nation was in a state of war far more literal and agonizing than any GWOT today, and the President had domestic ambitions—the War on Poverty and the Civil Rights Act—at least as controversial and hard-fought as today’s Affordable Care Act. But the momentum that Congressman Moss had quietly built, with the awakening support of the press, left FOIA as, in the words of another great legislative leader of the day, “an idea whose time had come.”  Jelani Cobb in this week’s New Yorker blog reminds us of that unlikely—and at the time little celebrated—gift of the strife-torn Sixties.

UPDATE — Monterey D.A. Suspends Brown Act Investigation

UPDATE Monterey County District Attorney Dean Flippo has suspended his office’s investigation into whether the Board of Supervisors violated the Brown Act in using some 53 closed sessions last year for the announced purpose of evaluating the performance of the five top county executives, but suspected by some observers as being used to provide operational directions that should have been conveyed in open session. Jeff Mitchell reports for the Salinas Californian.

The New Civics 101: Post-constitutional America

Busy as we are, it can be hard to pause and appreciate just how profoundly the Bill of Rights landscape and even the structural tension of our government has changed in the last dozen years or so.  Here’s one summing-up that’s worth letting sink in. “Almost 13 years after the 9/11 attacks, it remains ‘wartime,’”writes investigative journalist Peter Van Buren. For the war on terror, the driver, excuse, and raison d’être for the tattering of the Bill of Rights, there is no end in sight. Recently retired NSA head Keith Alexander is typical of key figures in the national security state when he claims that despite, well, everything, the country is at greater risk today than ever before. These days, wartime is forever, which means that a government working ever more in secret has ever more latitude to decide which rights in which form applied in what manner are still inalienable.

CalAware Today Site Reset: Catch-up Items

Back online after a 72-hour plus down period thanks to our Lunarpages host, CalAware Today resumes with the following items. San Diego Council Torpedoes CalAware’s Sunshine Bid The half-year efforts of CalAware President Donna Frye and General Counsel Terry Francke to persuade the City Council to place open government and open data proposals on the ballot for voter adoption as charter amendments failed Wednesday when a Council committee refused to recommend such action by a 3-2 vote. As reported in a prior summary by Claire Trageser fo KPBS, several months ago the proposal was green-lighted by the same committee, but the Council sent it back for further study in case it might conflict somehow with the state ballot measure on open government, Proposition 42, although CalAware stated that there was no overlap between the two. The City Attorney advised the Council likewise, but only a few days before the committee re-voted and killed the measure. Filing Records in Court under Seal Isn’t a Simple Option Both state and federal courts in California are governed by rules making it clear that the parties to a case cannot simply file records under seal to avoid mutual embarrassment. California’s rules requiring good cause for filing under seal are tougher than those in federal court, but a recent case shows that even the latter require some showing of more harm than simple business preference. Three legal commentators accordingly caution fellow litigators against becoming complacent in seeking document sealing. Court: Only individual voters can launch ballot initiatives, but they’re entitled to limited anonymity A three-judge panel of the U.S. 9th Circuit Court of Appeals ruled today that Chula Vista’s ordinance forbidding collectives like unions, associations or corporations to introduce ballot […]

Federal Student Privacy Law Could Get Better, or . . .

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: The Student […]