Public searching of state records nationwide just got dumbed down in a U.S. Supreme Court decision that is bad for both commercial information collectors and journalists hoping to use freedom of information laws to follow a story wherever it goes—and quickly. Last week the court ruled that the Constitution is not violated when states confine the right of access to their public records to their own residents. The parties immediately frustrated by the ruling included a Rhode Islander seeking Virginia records to show that its bureaucratic delays had cost him child support payments and a Californian seeking real estate tax documents for a business client. Virginia denied the use of its public records access law to both because of their non-residence. According to Adam Liptak’s report for the New York Times, Justice Samuel A. Alito Jr., writing for a unanimous court, said that provisions of the Constitution meant to ensure that citizens of different states are treated the same in many settings did not apply to what he called a noncommercial service whose fixed costs were borne by state taxpayers. Much of the information was available in other ways, he added. “Requiring noncitizens to conduct a few minutes of Internet research in lieu of using a relatively cumbersome state FOIA process,” he wrote, “cannot be said to impose any significant burden.” Justice Alito wrote that at least seven other states had laws limiting requests for information to their citizens. The Virginia law contains an exception for representatives of newspapers and magazines with circulation in Virginia and of radio and television stations that broadcast there. It does not address Internet publications. But states are not required to give news media any concessions, and a Sacramento Bee [...]
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—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 [...]
In celebration of national Sunshine Week (March 10-16), Californians interested in using their laws to keep an eye on city hall and other local and state public agencies can get a free 50-page how-to guide to open government rights and watchdog tactics. Californians Aware is offering—without charge through April 15—its newly published Citizen Watchdog, an accessibly written primer on what the state’s transparency laws say, with tips on how to use them confidently and effectively. The guide is subtitled “A Bell-Proofer’s Investigative Checklist.” The introduction explains, “Sunshine laws like the Brown Act and the California Public Records Act are in themselves no guarantee of preventing the kind of bureaucratic organized crime that former elected and appointed leaders of the City of Bell were prosecuted for. “But these and other transparency laws will make corruption much harder to commit and sustain, if reporters and citizen watchdogs understand and use them confidently and consistently.” And in any event, “using this checklist will unfailingly supply sometimes neglected or overlooked information that can be real news for journalists, fodder for public discussion by bloggers and other watchdogs, and an agenda for action by alert citizens generally.” The guide covers the Brown Act, including explanations on how to “decode” the often jargon-dense agenda labels used for the most frequent closed sessions. Basic and advanced instructions on using that law and the Public Records Act are provided, as well as new rules on asking for records showing how local trial courts are run. Written by Terry Francke, CalAware’s general counsel, the guide is presented in question-and-answer progression and, released in portable document format (pdf), contains dozens of links to the full text of state laws, interpretive court cases and other material. [...]
Louis XIV, the French “Sun King” viewed as the pinnacle of absolute monarchy prior to the Revolution, is often (if baselessly) quoted to have said, “L’Etat, c’est moi”—”I am the State.” Senator Dianne Feinstein, chair of the Senate Intelligence Committee, has defended its refusal to release to the public any information from its multi-year investigation, recently concluded, of the CIA’s post-9/11 detention and interrogation practices by saying, “We are the public.” Federal secrecy monitor Stephen Aftergood quotes her as explaining, “I mean, we are the public check on the Executive Branch . . .We are not of the intelligence community. We are the public, and it is our oversight, it is our due diligence to go in and read the classified material.” Committee Vice-Chair Saxbe Chambliss (R-Georgia), in almost all other respects on the opposite ideological extreme from Feinstein, was a perfect echo, reports Aftergood. “In matters concerning the [Foreign Intelligence Surveillance Act] Court, the congressional Intelligence and Judiciary Committees serve as the eyes and ears of the American people. Through this oversight, which includes being given all significant decisions, orders, and opinions of the court, we can ensure that the laws are being applied and implemented as Congress intended.” The context for these bland assurances of “Trust us—we’ve got your back,” was the Senate’s refusal on December 27-28 to provide more public information about the impacts of government surveillance on the privacy of American communications, renewing the FISA Amendments Act for five more years (President Obama signed it into law on December 30) untrammeled by the mildest concessions to public awareness. Aftergood believes this refusal signals a reorientation of intelligence oversight away from public accountability. The congressional intelligence committees once presented themselves as champions [...]
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 [...]
Openness and Civil Liberties: The Unsexy Topics President Obama’s recent directive to what many oddly call the national security “community” (a hamlet with hundreds of smoking stovepipes?) to work on regulations to provide some protection for whistleblowers with security clearances can be viewed as an antidote to criticism of this administration’s ferocity—not equaled since Nixon—in pursuing leaks and pressuring the reporters who are leaked to, invoking the state secrets privilege to halt litigation that might check or expose surveillance and other abuses, conducting trials of accused terrorists in venues inaccessible to the public, and so on. No interviewing journalist or debate moderator has raised anything like these secrecy and civil liberties issues in questioning the President; it took comedian Jon Stewart to do that this week, when Mr. Obama dropped in on the Daily Show. The President’s response, calling such issues “not real sexy,” morphed into the kind of facetiousness that is possible when there will be no follow-up, but not everyone was amused. Santa Ana Citizens Win Their Sunshine Law When it comes to local sunshine ordinances—requirements for governmental transparency and citizen participation that go beyond state law—Northern California communities have been the leaders for close to 20 years. But now the south state has its first such law worthy of the name, thanks to citizens of Santa Ana who’ve been particularly focused on keeping a close watch on the plans of developers. The 4-3 approval vote by the city council could not have been closer, but when it came the supporters exploded in cheers so resounding that the mayor—who had voted no—hammered his gavel, insisting, “This is not a pep rally.”
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.
Terms like “stakeholders” and “public-private partnership” are often code for exclusion of the public in a process giving corporate entities quasi-governmental power over individual liberties. The latest and clearest example is the highly secretive attempt by the U.S. and other nations to rewrite international copyright law in ways that may expand intellectual property protections to the detriment of creative fair use. Eva Arevuo explains for Article 3.
CalAware has just created an online petition with Change.org, directed to key officials of the California Assembly: “Free the Brown Act from Budget Suspense!” We hope we can collect hundreds if not thousands of signatures as soon as possible, and we could really use your help. To read and sign the CalAware petition, click here. It’ll just take a minute! Once you’re done, please ask your friends and others on any personal discussion lists or social media sites you maintain to sign the petition as well, and to pass the word on to their circles. You can keep tabs on how the signatures mount up and what people are saying about the petition by checking the page now and then at the above link. Let’s get the Assembly’s attention and let them know we’re keeping score. Use your First Amendment right of petition—that’s what it’s there for. And at this point only a petition like this will allow the people to vote to free the Brown Act from the budget mess.