OPEN GOVERNMENT CalAware’s proposed Plan B to save the Brown Act and the Public Records Act to go before the voters Sunlight’s new list has 32 pointers for local/state governments on “proactive disclosure” policies FREE PRESS Judge denies deputies’ bid to gag the L. A. Times from publishing leaked background screenings Governor gets bill requiring 5 day notice to journalists before subpoenas of their phone, email records Federal shield bill moving to the Senate would protect sources of a wider variety of journalists OPEN MEETINGS L.A. Council may allow citizens to address its meetings remotely, avoid hassles of trip downtown FREE SPEECH Federal judges cool to arguments that new sex offender online data tracking preserves free speech PUBLIC INFORMATION Campaign finance watchdog: Just how helpful will the improved Cal-ACCESS online database be? WHISTLEBLOWERS Court: Government attorneys’ ethical duties don’t strip them of law’s whistleblower protections Secret spy court judge: Snowden leak led to “considerable public interest”; more openness needed
A veteran but financially struggling small-town newspaper publisher facing a trial court order to pay a school district more than $56,000 in attorney fees was spared that fate today by a three-judge panel of the Third District, California Court of Appeal. The court held that while Sacramento Valley Mirror publisher Tim Crews’ lawsuit for emails held by the Willows Unified School District lacked legal merit, it was not “frivolous”—neither intended to harass nor such an obvious loser that no reasonable lawyer would have taken the case. Accordingly, the trial court had erred in finding Crews liable to pay the district’s attorney fees. Instead, the district will be required to pay Crews’ costs for appealing the matter. Crews filed suit for emails to either confirm or refute a source’s allegation that the district superintendent had used public resources to affect the election of a county schools superintendent. The decision’s lasting effect is to encourage energetic and tenacious litigation to enforce disclosure of government records in California without fear of having an unsuccessful suit labeled as “frivolous” as the basis for paying the government’s attorney fees. Supporting Crews before the Court of Appeal were two amicus curiae briefs: one representing a wide variety of journalism organizations and newspapers, and the other representing Californians Aware, of which Crews has since been elected as Vice President; State Senator Leland Yee (D-San Francisco); and former Assemblyman William Bagley, the author of the California Public Records Act. The facts and rationale for the decision in Crews v. Willows Unified School District are here. Background by Jim Newton of the Los Angeles Times is here.
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 […]
Tim Crews, editor and publisher of the twice-weekly Sacramento Valley Mirror in Glenn County and recipient this past weekend of the 2013 Freedom of Information award of the California Newspaper Publishers Association, comments on what it takes to make government documents tell their story to the public. Let’s look backward in the Mirror. In Los Angeles Saturday, where I had been flown to be recognized for 23-odd years of public records, open government and other freedom of information work, I had a few moments to reflect on the fruits of that effort. It is quite gratifying to get a one-of-its-kind award. At the same time, in the rarefied company of the state’s leading newspaper publishers, editors, reporters and photographers, I had a few minutes — we hadn’t been fully notified of why we were there—to ask myself what we do that is so different to merit the honor of the 2013 CNPA Freedom of Information Award. Sure, we’ve sued a lot, and mostly won. And we’ve beaten most redneck censors but some people are still afraid of being seen buying a copy of the county’s largest newspaper. California has some of the better, not the best, public records and open meetings laws in the nation. But it takes muscle to make them work. But more important is that The Sacramento Valley Mirror operates under old-fashioned newspaper-of-record principles. Certainly not as tough as those I grew up with where, in a county this size, every birth, hospitalization, divorce, marriage and birth was printed. We do bookings and keep track of police reports and that function helps us frequently to be able to make connections the police can’t or don’t, such as the link between an apparent […]
Tim Crews, editor and publisher—and truth be told, lead reporter—of the twice-weekly Sacramento Valley Mirror, was recognized by his peers Saturday for his dogged use of the courts to keep his Glenn County readers informed about their government and its officials. Crews was presented with the Freedom of Information Award for 2013 of the California Newspaper Publishers Association at its annual convention in Universal City. Before a packed luncheon audience at the Sheraton Universal, Karlene Goller, vice president for legal affairs of the Los Angeles Times, had this to say in introducing Crews to his fellow professionals. This year’s recipient may be the most experienced freedom of information litigant. You could call him Mr. Sunshine. Just looking at the past five years, he has filed more than two dozen cases seeking government records under the California Public Records Act or pursuing violations of the Brown Act. He won most of the cases, setting public access standards in all of them. You’d think bureaucratic obstructors would know: Don’t mess with Tim Crews and the Sacramento Valley Mirror. Nearing 70, he served five days in the Tehama County jail for contempt because he refused to name a source of published information subpoenaed in connection with a criminal prosecution. “I had given my word,” he said. He was so immersed in the contempt battle that he hadn’t paid attention to the fact that, if he went to jail, because it was essentially a one-man operation, the paper’s sterling record of continuous publication could be broken and his government foes would have won a significant victory. As Crews likes to say, “Journalism in small towns and tiny counties is different from the big city. I see the people we […]
A cautionary story for journalists, activists or others tempted to covertly audio- or video-record a conversation with someone, the better to expose him or her later: the problem is that once you do expose them, you may end up owing them a lot of money for violation of a California privacy statute, which can also be enforced by criminal charges. Jeff McDonald reports for the San Diego Union-Tribune.
Meetings of local government bodies are kept open by the Brown Act. For state boards and commissions in the executive branch, it’s the Bagley-Keene Act. The Legislature’s open meeting obligation is in the state constitution. But for want of such an unambiguous mandate for transparency, California’s judicial branch, providing the tribunals where all these other sunshine laws are enforced, is governed by a network of policy-making and advisory bodies most of whose meetings are held behind closed doors. The rationale seems to be, Cheryl Miller reports in The Recorder, that these meetings are presumed to be closed because no law presumes them to be public. But Californians Aware and others say that’s got it backwards, given a constitutional amendment in 2004.
Try bringing a pen to a swordfight. In individual conflict, stabbing and slashing can always silence words. But unregulated speech and writing > association > petitioning—a process collectively known as politics, is weightier than all the massed weapons in the nation. Putting it differently, it is the First Amendment that protects the Second (among others), and not vice versa. Note, for example, today’s announcement of a new coalition of organizations normally competing for the membership dues and shopping dollars of those who like guns—and the more and deadlier the better. BELLEVUE, WA / SAN CARLOS, CA / MADERA, CA (January 3, 2013) – Firearms Policy Coalition, a new project of renowned Second Amendment rights advocacy organizations Citizens Committee for the Right to Keep and Bear Arms, California Association of Federal Firearms Licensees, Second Amendment Foundation, and The Calguns Foundation has been launched, noted managing director Brandon Combs. The Coalition’s website was opened to the public in late December 2012. The Firearms Policy Coalition (FPC) provides for an effective, NATO-like response to gun control campaigns and efficient, low-friction advocacy of litigation, legislation, education, and grassroots efforts that advance Second Amendment rights. Of the Coalition, Second Amendment Foundation Executive Vice President Alan Gottlieb said, “I’m proud to help usher in the next generation of gun rights activism. The new paradigm is, and must be, coordination, mutual-support, and unity. Those who would disarm America’s law-abiding people are rabid in their desire to assault gun owners’ Second Amendment, privacy, and property rights.” “FPC immediately brings to the table leading Second Amendment advocacy groups, leadership, staff, volunteers, and hundreds of thousands of active supporters. This,” said Combs, “will enable superior communication, real-time collaboration, and scalable action to advance individual liberties […]
As of today, acts or omissions that citizens suspect to be violations of the open meeting law for local government bodies—and in any event want halted—can be challenged by a cease and desist letter to the body. If that demand is not satisfied by a public commitment to abandon the practice, the challenger can proceed directly to court for a judicial order to do so. Until last year’s passage of SB 1003, which created the new remedy, courts were free to determine that they would not decide the lawfulness of a single past practice unless it involved allegedly illegal action taken or unless there were clear evidence that it would be repeated. SB 1003 ends that state of affairs and allows a declaratory judgment action—and potentially an injunction—for a single past action as much as 90 days old that the local body fails to disavow. SB 1003 was co-sponsored by Californians Aware and the California Newspaper Publisher Association. Complete details here.
Californians Aware has asked California’s Chief Justice to defer action on a proposal to treat requesters for judicial branch administrative information based on their need to know. Set for consideration at today’s (Friday, December 14) meeting of the California Judicial Council—policy-maker for the state’s court system—is a recommendation that requests for information that do not specify particular public records be treated differently depending on who is asking. The rationale for the proposal is that while budget reductions have led to increasing staff shortages, there is also an increasing rate of queries as to how the court system is run involving why certain decisions were made or actions taken. Such queries often amount to demands for explanations, analysis or other responses that would require the creation of new records to fulfill, or that involve policy motives that staff either does not know or feels it above their pay grade to speculate about. Three years ago the Judicial Council adopted Rule of Court 10.500, for the first time stating the presumption that the public is entitled to view or copy the judicial branch’s administrative records, as distinguished from records of court proceedings, which have been presumed public as a matter of common law for many years. But 10.500, like its counterpart pertaining to executive branch and local government documents, the California Public Records Act, does not require the creation of new records or the compiling of lists or reports. Nonetheless, the authors of tomorrow’s recommended action—which unlike most potentially controversial measures was not put out for public comment—contend that many information requests ask for answers rather than access to records, and need to be accommodated by new guidance from the Council. The recommended policy set for action […]