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 [...]
Public Forum Law in the News 6/13/13: One-Liners
U.S. Supremes agree with California’s justices: State’s protection for peaceful labor picketing on private property is constitutional. Court: Planners’ meeting agenda must list all actions proposed on a project application—both approval and CEQA findings. Obamacare: Five U.S. GOP Senators want probe of California’s unique secrecy for health insurance exchange contract data. California bill to protect email, Facebook or Twitter messages from warrantless searches passes first committee, 6-1.
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 [...]
L.A. Times on Supervisors’ Mislabeling Games
The Los Angeles Times uses an editorial to show why the Los Angeles County Board of Supervisors is seeking to make an honest body of itself, so to speak, by a belated legalization of one aspect—but only one—of its double-barreled breach of the Brown Act in secretly meeting with Governor Brown in 2011. The legislation to allow Brown (or any governor) to huddle with the Board (or any other local body) on threats to local facilities is now on Brown’s desk. CalAware’s opposition to the bill is stated here. Meanwhile, why the Board apparently is poised to repeat the other aspect of the violation—discussing whatever it wants in a closed session supposedly addressing such threats —is explained in a recent blog item.
When Secrecy Hides the Death of Civil Liberties
All one has to do is read the Guardian’s story yesterday about the federal government’s massive, indiscriminate gathering of phone use data on millions of private customers of Verizon to realize that we have lost something we will never get back: personal communication privacy. The last paragraphs of the story make that clear. Russell Tice, a retired National Security Agency intelligence analyst and whistleblower, said: “What is going on is much larger and more systemic than anything anyone has ever suspected or imagined.” Although an anonymous senior Obama administration official said that “on its face” the court order revealed by the Guardian did not authorise the government to listen in on people’s phone calls, Tice now believes the (National Security Agency) has constructed such a capability. “I figured it would probably be about 2015″ before the NSA had “the computer capacity … to collect all digital communications word for word,” Tice said. “But I think I’m wrong. I think they have it right now.” If that report left any doubt about how bad the situation is, a separate Guardian story announced: The National Security Agency has obtained direct access to the systems of Google, Facebook, Apple and other US internet giants, according to a top secret document obtained by the Guardian. The NSA access is part of a previously undisclosed program called PRISM, which allows officials to collect material including search history, the content of emails, file transfers and live chats, the document says. In its early days almost a decade ago, Californians Aware designed a number of novelty buttons expressing its various themes. One of them says, “WANT TO BE FREE AGAIN? Know more about the Powers That Be than they know about you.” [...]
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 [...]