Legal Issue: Open Government

Governor vetoes military surplus transparency

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 […]

Bill to Bring Sunshine to Local Agency Contracting

A bill soon to be considered in a final hearing in the Assembly Appropriations Committee would mean that local agencies that have enacted COIN ordinances (to provide more transparency to its bargaining with employee unions) would be required to enact similar sunshine provisions for its  negotiations with private goods or services contractors. COIN-adopting agencies so far include the City of Costa Mesa the cities of Fullerton and Beverly Hills, Orange County and the East Bay Municipal Utility District. Costa Mesa, the first to adopt a COIN ordinance, did so out of concern for unfunded public employee pension obligations. The “Labor Strikes Back” parity provisions in SB 331 by Senator Tony Mendoza (D-Montebello), dubbed The “Civic Reporting Openness in Negotiations Efficiency Act,” or CRONEY, would apply to the negotiation of any contracts with private persons or entities worth at least $50,000 as well as any series of contracts with a cumulative worth of that amount within the fiscal year of a city, county, city and county, or special district. For those agencies it would apply to contracts for services in the areas of accounting, financing, hardware and software maintenance, healthcare, human resources, human services, information technology, telecommunications, janitorial maintenance, legal services, lobbying, marketing, office equipment maintenance, passenger vehicle maintenance, property leasing, public relations, public safety, social services, transportation, or waste removal. The applicable contract negotiations would be governed by the following rules, in the language of the bill. The city, county, city and county, or special district shall designate an unbiased independent auditor to review the cost of any proposed contract. The independent auditor shall prepare a report on the cost of the contract and provide the report to all parties and make it available to […]

Senate Resistance to Sunshine Clashes with Public Poll

A Sacramento judge tentatively ruled last week that the state Senate must provide the press and public with copies of the appointment calendars and travel schedules of two former state senators now under indictment on charges of public corruption. The ruling rejected arguments by the Senate’s lawyers that the records were exempt from disclosure under the Legislative Open Records Act (LORA). That transparency law is far shorter and more general than its counterpart governing access to executive branch and local government files, the California Public Records Act (CPRA). LORA comprises only 11 exemptions: • “Preliminary drafts, notes, or legislative memoranda”“Records pertaining to pending litigation” • “Personnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy” • “(T)he names and phone numbers of senders and recipients of telephone and telegraph communications” • “(T)he name and location of recipients of automotive fuel or lubricants expenditures” • “(Records) in the custody of or maintained by the Legislative Counsel” • “In the custody of or maintained by the majority and minority caucuses and majority and minority consultants of each house” • “Correspondence of and to individual Members of the Legislature and their staff” • “Records the disclosure of which is exempted or prohibited pursuant to provisions of federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege” • “Communications from private citizens to the Legislature” • “Records of complaints to or investigations conducted by, or records of security procedures” Despite the arguments of the Senate’s lawyer on Friday in reacting to the tentative ruling, there is no provision stated or implied in these exemptions for scheduling disclosures that might be used to compromise lawmakers’ safety.  […]

FOIA improvement, Brown Act ruling, mayor’s promises

PUBLIC INFORMATION U.S. Senate’s Judiciary Committee today takes up the Freedom of Information Improvement Act, already passed by the House OPEN MEETINGS Judge rules that Monterey County Supervisors’ frequent closed door evaluations of top management did not violate the Brown Act OPEN GOVERNMENT Comment: After eight months, San Diego’s new mayor slow to live up to his campaign promises to improve the city’s transparency

UC student government can exclude students

OPEN MEETINGS UCLA student council will limit access to a meeting dealing with a divestment/boycott resolution against Israel—because it can PUBLIC INFORMATION Cal Poly SLO journalism prof sues his employer for access to records showing the campus’s infectious disease preparedness National media groups supporting a suit challenging serious delays in public access to civil case filings in Ventura Superior Court FREE SPEECH Court: Google has a publisher’s First Amendment right to arrange search results as it pleases, including rankings of competitors  

State’s high court lets secrecy rulings stand

OPEN GOVERNMENT State Supreme Court lets stand ruling that L. A. teachers’ names needn’t be disclosed in connection with performance ratings State Supreme Court lets stand ruling that S.F. Sunshine Ordinance can’t force release of city attorney’s open government opinions FREE SPEECH Report: Young men accused of crimes are having the gangsta rap lyrics they write and perform used as evidence of their guilt Comment: Why California’s ban on handgun images in outdoor signage violates the First Amendment protection for commercial speech

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.

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.

SF Sunshine Panel Deadlock Dissolves

Update by Richard Knee The San Francisco Board of Supervisors Rules Committee voted Thursday to recommend to the full board six appointments to the Sunshine Ordinance Task Force, and to defer action on two applications, thus ending the standoff reported here. Public participation in this matter won the day on Thursday; committee members finally got the message that there is growing public awareness of the difficulties that long-time vacancies have created for the task force and for people wanting access to public meetings and records, access to which they’re entitled under law. We can hope that the full board will see the light next Tuesday. The Rules-recommended appointments: Seat #1 (attorney nominated by Society of Professional Journalists), Mark Rumold, who works with the Electronic Frontier Foundation. Seat #2 (SPJ-nominated journalist), award-winning freelancer Ali Winston. Seat #3, journalist and videographer Josh Wolf. Seat #5 (League of Women voters nominee), incumbent Allyson Washburn. Seat #7, Lee Anthony Hepner, an attorney experienced in litigation, mediation, arbitration and intellectual-property matters. Seat #9, incumbent Chris Hyland The committee deferred action on two appointments: Seat #4 (journalist nominated by New America Media), Rishi Chopra. Seat #11, for which incumbent Bruce Oka and former task force member Bruce Wolfe are applying. Both have physical disabilities, so the mandate that the task force at all time have at least one person with a physical disability will be met. And both have served admirably. Until the appointment is made, Oka remains on the task force as a “holdover.” The board voted last month to appoint incumbents Todd David, Louise Fischer and David Pilpel. So it is reasonable to guess that within the next few weeks, at least 10 of the 11 task force seats […]

Prop 42 Vote Shows Metro/Coast – Rural/Interior Split

While the Secretary of State’s unofficial vote tally Tuesday showed a passage rate of 61.5 percent statewide for Proposition 42, the open government constitutional amendment, a closer look at the county by county numbers shows that metropolitan and suburban counties closer to the coast were largely responsible for the measure’s passage, while rural counties in the state’s interior mostly rejected it. County support for passage ranged from San Francisco’s 71.3 percent to Modoc’s 37.4. The statewide acceptance rate of 61.5 percent lagged the 65.4 percent support for the only other ballot measure, Proposition 41, the authorization of $600 million in general obligation bonds to fund affordable multifamily housing for low-income and homeless veterans. The relatively higher support for Prop 41 was probably due in large part to a patriotic and compassionate concern for veterans and their families prompted by recent revelations of significant service delays and failures of the Veterans Administration. In contrast Prop 42 could be (and was) interpreted by many as a political shedding of state responsibility prejudicial to the most trusted level of government—the locals, and in any event a relatively abstract issue. But Proposition 42 also clearly drew less enthusiasm than Proposition 59, which first made open government a state constitutional right 10 years ago when passed by more than 83 percent of voters. In that election, the Yes counties ranged from Santa Cruz (88.2 percent) to Kings (75.6 percent), and 49 of the 58 counties gave the measure 80 percent support or more.  One conclusion is that the size of the turnout can make a big difference.  In 2004, the ballot included not only state legislative and Congressional seats, but a U.S. Senator, the President, and 16 ballot measures, and […]