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 and the seven other public interest organizations that first endorsed the new legislative transparency law in the initiative drive to get it on the statewide ballot have now reached out to lawmakers offering both assistance and advice in getting the voter-adopted California Legislature Transparency Act embodied in the procedural rules of the Senate and Assembly. The Act requires the legislature to abandon its 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, the Act requires 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. Addressed to Assembly Speaker Anthony Rendon, Senate President Pro Tempore Kevin de León and the members of both houses, the letter was sent by the chief executives of California Common Cause, California Forward, the California Chamber of Commerce, the California Taxpayers Association, Californians Aware, the California Public Interest Research Group, the League of Women Voters of California, and the National Federation of Independent Business/California. The letter states its purpose thus: Passage of Prop 54, the California Legislature Transparency Act, provides California with an opportunity to lead the nation in its commitment to transparency and open government. It is in this spirit that we, the core supporters of Proposition 54, are reaching out to you about its implementation. Because we are aware that the Legislative Rules are adopted early in the session, […]
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 […]
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. […]
Republican presidential candidate Donald Trump’s reaction to criticism—or even just statements incongruent with his own view of himself— is Exhibit A for why a federal anti-SLAPP law is needed. But so is the reluctance of the nation’s premier professional guild of lawyers to say less than flattering things about him. In The Nation magazine of October 24, five books by or about him are reviewed by Chris Lehman, editor in chief of The Baffler. Lehman recalls that 10 years ago Trump sued New York Times reporter Timothy L. O’Brien for statements in his book TrumpNation: The Art of being The Donald suggesting that he was not, as claimed, a billionaire. “For Trump, O’Brien’s trespass was far more than a matter of misguided accounting,” Lehman notes. “The Times reporter had struck at the very heart of the mogul’s innermost sense of self-worth . . . To no one’s surprise, Trump’s suit against O’Brien was dismissed, as was a subsequent appeal by his legal team. But in true positive-thinking fashion, Trump spun the whole proceeding as a victory, since it tied O’Brien up in a procedural limbo for years on end. “I liked it because it cost him a lot of time and a lot of energy and a lot of money,” he told Washington Post reporters Michael Kanish and Marc Fisher in Trump Revealed. He even claimed that “I didn’t read (O’Brien’s book), to be honest with you . . . I never read it. I saw some of the things they said. I said, ‘Go sue him, it will cost him a lot of money.’” These comments may be the most candid adoption on record of the SLAPP suit’s primary objective: to force defamation defendants […]
Who do an elected official’s office records belong to? A lawsuit in Los Angeles may settle this still open question. The Los Angeles Times reports that the alleged wholesale removal and/or destruction last year of office files accumulated over the 14 year incumbency of a departing member of the Los Angeles City Council has prompted a lawsuit. Earlier this year FAC made a public records request to the city for three categories of records in which former Councilman Tom La Bonge had been involved—the Department of Water and Power, the California Film Commission, and a proposed housing development in Sherman Oaks— but was told they could not be found. The FAC lawsuit seeks a judicial order to the city to conduct a thorough search for the records and to begin complying with Government Code Section 34090. requiring cities to retain all records for at least two years. Records removal and destruction can be prosecuted as a crime. California Government Code Section 6200 states: Every officer having the custody of any record, map, or book, or of any paper or proceeding of any court, filed or deposited in any public office, or placed in his or her hands for any purpose, is punishable by imprisonment . . . for two, three, or four years if, as to the whole or any part of the record, map, book, paper, or proceeding, the officer willfully does or permits any other person to do any of the following: (a) Steal, remove, or secrete. (b) Destroy, mutilate, or deface. (c) Alter or falsify. Violations of this law are very rarely prosecuted, possibly because by the time district attorneys discover the statute, they have themselves trashed official records. For example, former […]
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 […]
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.
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 […]