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 […]
Prompted by a suggestion from Californians Aware, the Orange County Board of Supervisors has dropped a proposed rule to limit citizen speakers at public meetings of the board to comments on only three agenda items, for three minutes each, reports Nick Gerda for the Voice of OC. Instead, speakers will be allowed a total of nine minutes per meeting to address as many items as they choose—but still with a maximum of three minutes per item.
The public access law for California’s state boards, commissions and other policy and advisory bodes, the Bagley-Keene Open Meeting Act, contains a provision allowing the state’s scientific panel charged with evaluating earthquake predictions to meet in closed session—whenever it meets. Government Code Section 11126 (f) (9) states that nothing in the Act prevents the California Earthquake Prediction Evaluation Council, or other body appointed to advise the Secretary of Emergency Management or the Governor concerning matters relating to volcanic or earthquake predictions, from holding closed sessions when considering the evaluation of possible predictions. This body—not to be confused with the Seismic Safety Commission or the California Earthquake Authority—meets by telephone conference on the call of the Governor’s Office of Emergency Services. How often it meets is unclear, and it may be that it convenes only to consider earthquake (or volcanic eruption) predictions of a certain scientific authoritativeness. The last publicized such meeting(s) took place eight years ago in response to predictions of major earthquakes in the state by reputable seismologists known as the Kellis-Borok group. The Emergency Management Agency concluded in its later public report that those predictions not only were not fulfilled but were based on an unproven methodology and did not warrant an official reaction. The Keilis-Borok method is based on identifying patterns of small earthquakes prior to large shocks. To date there is no evidence that these, or related methods, yield useful intermediate term forecasts. Furthermore, the Council has heard no valid physical basis for the Keilis Borok methodology. Given the track record so far and the lack of a physical basis, the Council does not consider the method to be a basis for public policy. Therefore, CEPEC advises OES to take no […]
What Gets Measured Gets Publicized? — If a k-12 public school district systematically tracks the average learning progress of each teacher’s class in terms of test scores, should that information be on the public record? The Los Angeles Times says yes, and is suing the city’s public school system for the data linked to each teacher’s name. But an interesting question of equity arises. No such metrics are even required to be gathered, much less released, for individual public college and university professors, or for at least equally important professionals in the criminal justice system—badged officers, prosecutors and judges, prison wardens and probation officers—or indeed of almost anyone else in government. How to Extinguish a Nosy Newspaper — What’s frivolous about a lawsuit to force release of emails that might confirm a tip that a school superintendent used public funds and resources to influence a bond election and a ballot race for the county superintendent of schools? Everything, said a judge in rural Glenn County between Sacramento and Redding: suing too soon and being too aggressive in a case in which thousands of emails (and attachments) were withheld without explanation or justification. But “frivolous” in this context is not just a basis for dismissal. It’s been used to warrant an order to the requester to pay the district more than $56,000 in attorney’s fees. The plaintiff, a nearly impoverished but gutsy newspaper publisher in a poor rural county who’s never really operated in the black, says if that order stands it will ruin him.
CSU Nickels and Dimes Students for Email Copies A student editor at the Mustang Daily, Cal Poly San Luis Obispo’s campus newspaper, asked the CSU headquarters in Long Beach for a copy of an email sent by the system’s chancellor, Charles Reed, to all campus presidents, about faculty members’ politicking in class and Prop 30. CSU headquarters, after at first denying the request, citing university policy, then responded that sending him the email would cost 20 cents and he would have to pay first—by check. Punished for Asking Too Early, Too Hard and Too Long The City of Sebastopol, sued for public records showing what it knew and didn’t do about an unsafe street condition that left her an indigent paraplegic, convinced a court that her lawyer was oppressively zealous and that she should pay it more than $80,000 for asking for too much information from too many officials. The Willows Unified School District, sued for public records showing whether its superintendent improperly influenced the electoral process, convinced a court that the weekly newspaper editor who pushed for the information and got some but not much, was liable for $56,000 for pressing too early and too hard. Californians Aware has submitted friend-of-the-court briefs supporting both requesters against these misplaced fee orders punishing supposedly “frivolous” litigation.
Candidates for public office in California and elsewhere commonly make promises they either know they will not be able to keep or are too inexperienced to know no one could keep. But in doing so they play on just enough of the right medley of public anxieties, resentments and wistful myths that the melody sustains them while no one holds them to the lyrics. What if a candidate were modest enough to say simply, “Here’s what I’ve accomplished; here’s what I’ll try to do; and here’s what I absolutely will (and will not) do”? In case there are any of that caliber around, the following is a 10-point Sunshine Pledge responsive to that third commitment, which, if adopted, should merit the vote of anyone of any party—at least against any competitor who won’t make such a commitment. What it tells the public seeking some distinguishing mark in a sea of untested faces is that this candidate, if elected, won’t be pulling up the ladder but instead lowering others, welcoming the community aboard.