Legal Issue: Open Government

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 […]

San Francisco’s Sunshine Wars

Guest Report and Comment by Richard Knee San Francisco’s open-government laws are regarded by some as among the nation’s strongest. But some people in City Hall are doing their best to keep the city’s Sunshine Ordinance and the 11-member panel that monitors its effectiveness as weak as possible. The ordinance was drafted by Terry Francke, then executive director of the California First Amendment Coalition, in 1993. Bruce B. Brugmann, editor and publisher of the San Francisco Bay Guardian news weekly, shepherded the ordinance through City Hall, where it was predictably watered down and then enacted by the Board of Supervisors late that year, taking effect in 1994. Both as a journalist and as one of the original members of the monitoring panel, called the Sunshine Ordinance Task Force, Brugmann quickly saw that the ordinance was too easily skirted, so he led a fight to have it strengthened. The result was a November 1999 ballot initiative that city voters approved, 58 percent to 42 percent. Francke is now general counsel of Californians Aware, the First Amendment Coalition has dropped California from its name, and Brugmann retired after selling the Bay Guardian to the SF Newspaper Co., which also owns the archrival SF Weekly as well as the daily San Francisco Examiner. He continues to advocate sunshine and public control of electricity (“When PG&E spits, City Hall swims!”), through his Bruce Blog on the Guardian web site. The latest attack on sunshine is coming on two fronts: the process of appointing members to the task force, and an effort by City Attorney Dennis Herrera to overturn a provision in the ordinance nullifying attorney-client privacy for communications regarding local and state sunshine and political-ethics laws. Officials Use Politicized […]

The Green Party’s Misguided Opposition to Prop 42

The California Green Party, in announcing its opposition to Proposition 42 on next week’s ballot, uses a very blinkered rationale that ignores what made the measure necessary and exaggerates its impact on local government resources. The key phrasing of its position states: Proposition 42 would amend the state constitution to mandate local government agencies comply with various state laws providing for public access to local government meetings and records of government officials. This would apply to cities, counties, and school and community college districts, as well as park, fire, water and other special districts. Proposition 42 would also eliminate the state’s traditional responsibility to reimburse local governments for their costs to implement these laws, including certain parts of the Public Records Act – representing an annual cost shift in the tens of millions of dollars, as estimated by the California Legislative Analyst. Local governments are often on very tight budgets. They also have far fewer tools to raise revenue than the state, and the tools they do have are often more regressive than those available to the state. Transparency in government should not be dependent upon the finances or practices of any particular local government agency. Transparency should be even and guaranteed across all jurisdictions. The abdication of this in Proposition 42 is an example of what is wrong with our state’s priorities. A Wildly Exaggerated Estimate of Cost Shift First, the Legislative Analyst’s estimate of the cost impact of mandated services under the California Public Records Act—hence the cost to be shifted to local agencies—lacks credence, to put it mildly. As this space noted last year when that estimate became known as justification for halting certain CPRA requirements by making them unenforceable, The mandate […]

Public Forum Law News Roundup 1/17/2014

FREE SPEECH CalAware-supported bill adds teeth to Brown Act protection for citizens’ right to comment at local government meetings OPEN GOVERNMENT CalAware-sponsored proposal would put charter amendment on San Diego’s June ballot requiring fact-based reasons for secrecy WHISTLEBLOWERS The Dreyfus Affair’s unsung whistleblower, whose fate set the pattern for leaks threatening a national security elite FREE PRESS Appeals court setting precedent for federal courts in California rules bloggers can’t be sued for libel without proof of fault OPEN MEETINGS Monterey Supervisors’ use of frequent “performance evaluation” closed sessions to direct policy moves will get D.A.’s scrutiny