Legal Issue: Open Government

Sacramento’s new Mayor Steinberg: transparency is a “Week One priority”

Darrell Steinberg. former presiding officer of the California Senate and recently elected as mayor of Sacramento, is making open government a first week priority with a handful of demanding amendments to the city’s new sunshine ordinance, reports Anita Chabria of the Sacramento Bee. On the agenda for Thursday’s first city council meeting of the year is adoption of not only the relatively conventional openness proposals accumulated over the past two years under then mayor Kevin Johnson but consideration of the following Steinberg transparency rules, which would include an end to the use of closed “ad hoc” committee meetings for development of policy proposals; a requirement for sending emails concerning city business through the official city server, making them potentially available for public records requests; a requirement that council members submit any proposed amendments to ordinances in writing for public disclosure prior to the meeting at which they would be discussed, instead of simply offering them orally at that meeting; a requirement that the council announce any “behest”contributions made to favored nonprofits on their behalf more than 30 days before voting on an issue of interest to the contributor; and display on the city’s website of all comments by the public s made at open council, committee and commission meetings.  

Prop 54’s early backers reach out to legislators

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, […]

CalAware’s report card—and a plea

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 […]

Obama urged to release vital information now

WASHINGTON, November 21, 2016 – Today, a coalition of organizations —including Californians Aware— that are committed to promoting government openness and accountability, as well as the defense of civil liberties, civil rights, and privacy rights, is calling on President Obama to take urgent steps to disclose information related to critical areas of national security-related secrecy before the end of his term. Their letter urges the President to take concerted action to provide the public, Congress, and the courts with information relating to surveillance programs, use of torture, use of drones, and the secret interpretations of law authorizing such programs. This information is needed to ensure that past secret actions, policies and practices, particularly those declared illegal or unconstitutional, are not repeated. The President’s legacy and his first day embrace of open government and transparency goals are dependent on ensuring this information is available to the public before the end of this administration. The letter asks the President to take steps to ensure the preservation of the Senate report of the CIA’s Detention and Interrogation Program (a.k.a. “The Torture Report”), by directing senior staff in the intelligence community to read the report, and encourage the National Archives to make a determination on whether the report is a federal record. The preservation of the Torture Report is a matter of immediate concern, particularly following acknowledgment by the CIA inspector general’s office that it had “mistakenly” destroyed its only copy of the report. The other transparency and accountability measures identified in the letter include the release and disclosure of the following information: OLC Opinions: a summary of all formal Justice Department Office of Legal Counsel (OLC) opinions (prioritizing those relevant to national security & civil liberty matters); FISC Opinions: […]

The Trump Administration and open government

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. […]

Prop 54: Brown Act policy for the Legislature

Proposition 54 on Tuesday’s statewide ballot—strongly supported by Californians Aware—would impose on the California Legislature requirements substantially equivalent to those in the Ralph M. Brown Act that the Legislature has mandated for years on local government agencies. Three major parallels are immediately apparent. 72 Hour Notice to the Public The Brown Act states, in Government Code section 54954.2: At least 72 hours before a regular meeting, the legislative body of the local agency, or its designee, shall post an agenda containing a brief general description of each item of business to be transacted or discussed at the meeting, including items to be discussed in closed session . . . The agenda shall specify the time and location of the regular meeting and shall be posted in a location that is freely accessible to members of the public and on the local agency’s Internet Web site . . . No action or discussion shall be undertaken on any item not appearing on the posted agenda. Proposition 54 would add this provision to the California Constitution: No bill may be passed or ultimately become a statute unless the bill with any amendments has been printed, distributed to the members, and published on the Internet, in its final form, for at least 72 hours before the vote, except that this notice period may be waived if the Governor has submitted to the Legislature a written statement that dispensing with this notice period for that bill is necessary to address a state of emergency . . Spectator’s Right to Record The Brown Act states, in Government Code sections 54953.5 and 54953.6: Any person attending an open and public meeting of a legislative body of a local agency shall have […]

USDOJ urged to improve tracking of deaths in custody

CalAware and 66 other advocacy groups nationwide are urging the U.S. Department of Justice to improve its monitoring of deaths in police custody. In a letter sent Monday (August 29), the organizations responded to DOJ’s proposal for implementing the Deaths in Custody Reporting Act (DICRA), which requires police departments across the country to disclose details to the federal government about custodial deaths. DICRA was signed into law in 2014 in response to a troubling lack of reliable data on these deaths ,and DOJ is currently collecting comments on its implementation proposal published August 4. Besides Californians Aware, signers include The Leadership Conference on Civil and Human Rights, the ACLU, and the NAACP Legal Defense and Educational Fund, among many others. In their letter, the organizations list a number of deficiencies in the proposal that are a “departure” from DICRA, including a lack of accountability to ensure state and local police are actually reporting the data; a failure to condition federal funding on adequate reporting; a disturbing reliance on media reports instead of police departments for data; a lack of clarity on how DICRA applies to federal agencies; and the absence of a clear definition of the word “custody.” The groups are especially concerned about the lack of consequences for not reporting accurate data because “voluntary reporting programs on police-community encounters have failed. Only 224 of the more than 18,000 law enforcement agencies reported about 444 fatal police shootings to the Federal Bureau of Investigation (FBI) in 2014, though we have reason to believe that annual numbers of people killed by police exceeds 1,000.” “The loopholes in these regulations are cavernous,” said Wade Henderson, president and CEO of The Leadership Conference on Civil and Human Rights. […]

Charter school transparency bill faces likely veto

A bill that would place charter schools under the same transparency rules as their public counterparts faces a likely veto. AB 709 by Assembly Member Mike Gipson (D-Gardena) would put charter schools (except those on tribal reservations) under either the Brown Act or the Bagley-Keene Open Meeting Act—depending on whether their sponsors were local or state entities—as well as the California Public Records Act and state laws barring conflicts of interests in government and requiring the filing of public statements of economic interests by the board members and key employees. The need for such sunshine regulation, at least in some states, is suggested by an August 21 report on John Oliver’s “Last Week Tonight” program. The bill got a final vote of approval Wednesday (August 24) and is now headed for the Governor’s desk. It may well die there as did a similar measure last year, because Governor Brown, as mayor of Oakland, founded two charter schools there and, according to columnist Dan Walters, has “placed $20 million in ‘startup funds’ for new charters in his 2016-17 budget.”

Democrats pursue “transparency lite” strategy

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.

Huge loan to agency manager in closed session

The governing board of one of California’s largest public agencies wholesaling water to local authorities gave a principal manager a $1.4 million low interest loan in a closed session, the Associated Press reports, despite the Brown Act’s requirement that the compensation of non-union “unrepresented” employees must be approved by final action in open session. According to the AP story by Ellen Knickmeyer, the 2007 loan by the Fresno-based Westlands Water District has never been repaid, its principal and interest have now grown to $1.57 million and the recipient, then Chief Deputy General Manager Jason Peltier, has moved on to head the San Luis & Delta-Mendota Water Authority in Los Banos, without mentioning the loan in his state-mandated financial interest disclosures until recently. The board never announced the loan at the time, or even discussed it publicly. Chief Operating Officer Dan Pope told the AP that it never went on the public record because the board approved it in closed session. The Brown Act provides, in Government Code section 54957.6 (a): Notwithstanding any other provision of law, a legislative body of a local agency may hold closed sessions with the local agency’s designated representatives regarding the salaries, salary schedules, or compensation paid in the form of fringe benefits of its represented and unrepresented employees . . . Closed sessions held pursuant to this section shall not include final action on the proposed compensation of one or more unrepresented employees.