SB 1336 by Senator Leland Yee (D-San Francisco) was introduced to continue anonymity for those reporting improper governmental activity of the kind investigated through whistleblower programs operated by the State Auditor, the California State University and city and county auditors, but also to remove the secrecy now giving the same anonymity to the public employees found blameworthy for such abuses.

The bill passed the Senate Committee on Governance and Finance on a 6-1 vote on April 26, but the seven-member Senate Appropriations Committee today gave the bill three No votes (Christine Kehoe, D-San Diego; Mimi Walters, R-Laguna Hills; and Bob Dutton (R-Rancho Cucamonga), with four others not voting (Senate President pro Tempore Darrell Steinberg, D-Sacramento; Elaine Alquist, D-San Jose; Ted Lieu, D-Redondo Beach; and Curren Price, D-Los Angeles). This outcome contrasted with the committee’s professional staff analysis, noting estimates of only minor costs resulting from the bill’s implementation.

The bill’s defeat leaves in place a system protecting and to that extent encouraging what in other contexts would be treated as white collar crime—typically in the form of defrauding the taxpayer of thousands or even hundreds of thousands of dollars in unearned pay or reimbursement for expenses not incurred on government business, the use of government resources for private occupations, or either ignoring or covering up for such larcenous exploitation by subordinates.

A summary from the most recent (August 2011) report of the State Auditor provides a flavor of the activity whose perpetrators the whistleblower programs do not identify, and how vigorously the responsible agencies pursue correction:

RESULTS IN BRIEF

The California Whistleblower Protection Act (Whistleblower Act) empowers the Bureau of State Audits (bureau) to investigate and report on improper governmental activities by agencies and employees of the State of California (State). Under the Whistleblower Act, an improper governmental activity is any action by a state agency or employee related to state government that violates a law, is economically wasteful, or involves gross misconduct, incompetence, or inefficiency.¹

This report details the results of seven particularly significant investigations completed by the bureau or undertaken jointly by the bureau and other state agencies between July 1, 2010, and March 31, 2011. This report also outlines actions taken by state agencies in response to the investigations of improper governmental activities described here and in previous reports. The following paragraphs briefly summarize the investigations and the state agencies’ actions, which are discussed more fully in the individual chapters of this report.

DEPARTMENT OF MENTAL HEALTH

An executive at the Department of Mental Health (Mental Health) wasted at least $51,244 in state funds in 2009, the one-year period that we examined, by employing a longtime senior official to perform activities that either were undertaken on behalf of a nonstate organization or did not serve a state purpose. In fall 2010 the executive directed the senior official to discontinue using state-compensated time for activities that we found did not benefit the State. Soon thereafter, the executive retired from state service, and the senior official began using leave while he awaited new work assignments.

DEPARTMENT OF CORRECTIONS AND REHABILITATION

The chief psychologist at a correctional facility operated by the Department of Corrections and Rehabilitation (Corrections) used his state-compensated time and state equipment to perform work related to his private psychology practice, costing the State up to an estimated $212,261 in lost productivity over nearly five years.

CALIFORNIA ENERGY COMMISSION

An employee and a personnel specialist at the California Energy Commission falsified time and attendance records to enable the employee—at the time of her retirement—to receive a payment for unused annual leave that was higher than the amount to which she was entitled, costing the State an estimated $6,589.

DEPARTMENT OF TRANSPORTATION

For nearly three years, a transportation planning supervisor for the Department of Transportation neglected his duty to supervise the work of a subordinate transportation planner, resulting in the transportation planner receiving compensation, including overtime pay, for which the State lacked assurance that the transportation planner performed adequate work to justify the compensation.

DEPARTMENT OF FISH AND GAME

A manager at the Department of Fish and Game improperly directed an employee under his supervision to use a state vehicle for commuting between her home and work locations at a cost to the State of $8,282 over a nine-month period. In addition, the employee improperly requested—and the manager improperly approved—reimbursement for $595 in lodging and meal expenses incurred by the employee near her work headquarters.

DEPARTMENT OF INDUSTRIAL RELATIONS

An official and a supervisor at a district office of the Department of Industrial Relations failed to monitor adequately the time reporting of four subordinate employees from July 2007 through June 2009.

STATE CONTROLLER’S OFFICE

An employee with the State Controller’s Office failed to report an estimated 322 hours of absences over an 18-month period. Because her supervisor, a high-level official, failed to monitor adequately her time reporting, the State paid the employee $6,591 for hours she did not work.

UPDATE ON PREVIOUS INVESTIGATIONS

In addition to conveying our findings about investigations completed from July 2010 through March 2011, this report summarizes the status of certain findings described in our previous reports. Chapter 8 details the actions taken—or declined to be taken—by the respective agencies for seven previously reported investigations. The following updates have particular significance:

• The Department of General Services (General Services) signed an agreement in June 2011 with a now-retired fleet division manager directing him to reimburse the State for his misuse of state vehicles for his daily commute. Our January 2011 report had revealed that the manager improperly used state vehicles for his daily commute for nine years. We estimated that the cost of the misuse for the three years for which complete records were available totaled $12,379. The terms of the agreement require the manager to repay the State the entire $12,379 at $200 a month from June 2011 through August 2016. The manager made his first installment payment in June 2011.
• The California State University, Office of the Chancellor (Chancellor’s Office) has implemented four of the five recommendations we made in our December 2009 report, which found that the Chancellor’s Office had reimbursed a former official $152,441 for unnecessary expenses that did not further the best interests of the university or the State. The Chancellor’s Office reiterated its assertion about the difficulty in implementing the remaining recommendation. This lack of action by the Chancellor’s Office will permit its employees to continue an activity we identified as being wasteful and, therefore not in the State’s best interests.

Without some freedom to protect sensitive information, security is compromised. Therefore, the health and safety of the people of California is enhanced by giving governing bodies the authority to meet with the Governor in closed meetings to discuss security matters that may include sensitive information.

Here are transcripts of the three illegally secret discussions, released on CalAware’s demand, providing some notion of what kind of “security matters that may include sensitive information” we can expect to see discussed by governors and local officials behind closed doors if this bill passes.

September 20 preliminary closed session about concerns with implementing the Realignment.

September 21 phone conference closed session with Governor Brown.

September 26 closed session face-to-face meeting with Governor Brown.

In a thought-provoking article for Jurist published last week, University of California, Davis, School of Law Professors Alan Brownstein and Vikram Amar explore the intersection between freedom of speech and civil disobedience on campus. Prompted by a recent protest at UC Davis in which 11 students and one faculty member “repeatedly obstructed access to a branch of a bank located on-campus” and now face criminal charges, Brownstein and Amar analyze the First Amendment considerations relevant in formulating responses to such activity.

While taking no position on either the protest’s message or the charges the protestors now face, Brownstein and Amar criticize one faculty group’s reaction to the situation. “The Board of the Davis Faculty Association (DFA),” they write, “challenged the administration’s decision to seek prosecution of the identified students, not because the students were innocent of the charges against them or because campus disciplinary procedures would be a more appropriate response for certain kinds of violations of law on-campus, but because the obstruction of the bank was politically motivated and morally just from the DFA’s point of view.”

Brownstein and Amar use the DFA’s reaction to highlight two important points. First, engaging in certain forms of civil disobedience-like setting up a blockade, for instance-will not necessarily be protected by the First Amendment. They write:

“To begin with, it bears noting that a blockade is not, of course, constitutionally protected speech. It is conduct that government has always had the legitimate authority to proscribe because the conduct so obviously obstructs the liberty and lawful pursuits of others. Government actions to prohibit blockades or obstruction have been held to be permissible under the First Amendment too many times to count. To cite just one example, a federal law, the Freedom of Access to Clinic Entrances Act (FACE), that prohibits anyone from physically obstructing any person from obtaining or providing reproductive health services, has been upheld repeatedly against constitutional challenge, and those cases raise harder questions than do generic obstruction laws (like the kind at issue at UC Davis) because FACE targets specific places where protestors with particular messages may be expected.

“One critical reason why blockades can be prohibited is that they are not intended to and do not persuade anyone of the merits of the protestors’ position. They are employed to coerce third parties to change their behavior, not their minds. As such, they are actually antithetical to, rather than in furtherance of, the values on which freedom of speech and academic freedom are grounded – a commitment to the power of ideas rather than the use of force to change the way that people act.”

Second, Brownstein and Amar criticize the DFA’s emphasis on the particular political message of the blockade and the accompanying suggestion that this political component should necessitate different treatment of the protest. (In a statement, the DFA asks “that the administration recognize the political content of the US Bank blockade rather than treating it as a criminal matter.”) They write:

“Perhaps the DFA intends for the term “political content” to be interpreted more narrowly. Perhaps the DFA is suggesting that obstruction and other violations of law should be excused whenever individuals are engaged in blockades in the furtherance of politically salient beliefs, that is, beliefs concerning the big issues of the day. Obstruction and blockades about things like privatization, under this analysis, should be treated as permissible, if not protected, expressive activities.

“If this is the argument, it too has costly consequences. Presumably, under this view, laws like FACE, which protect women attempting to enter medical clinics to obtain abortion services, could not be enforced against “political” anti-abortion activists blockading the entrances to clinics. And what happens when two groups of opposing protestors both want to blockade a facility (say the US Supreme Court the day of the health care oral arguments) at the same time, or two opposing political groups want to blockade each other’s protests? Without valid and enforceable time, place and manner rules applicable to political protestors, political protest could easily and literally devolve into melees.”

As Brownstein and Amar point out, the fact that the protest takes place on campus and involves students and faculty does not change this basic calculus:

“Alternatively, maybe the suggestion is that laws prohibiting obstruction should be enforced off campus, but not on a college campus. But the problems do not disappear when protests occur at institutions of higher education. Under this analysis, campus administrators and police could not step in when on-campus student health facilities providing contraceptive services or advice about abortion are blockaded by politically motivated students who oppose the use of their student fee dollars to subsidize such services. And you still have the problem of managing the use of scarce property among competing protestors.

“Logistical costs aside, if we tried to treat only salient political blockades as permitted expressive activity, a public university’s decision to prohibit all blockades except those maintained in order to express a limited class of political messages would itself violate the First Amendment. Government cannot discriminate on the basis of the subject of speech when it regulates expressive activity. In Carey v. Brown, for example, the US Supreme Court struck down a law prohibiting residential picketing that excluded labor picketing connected to a place of employment from its coverage. Similarly, if the university is going to treat obstruction as permitted speech, it cannot permit some blockades based on the university’s (contested) sense of the political salience of the protestors’ message.

“It may be that the DFA’s position is narrower still. When it states that “[w]e reiterate our support for the principled and determined actions of UC students and faculty to defend the public character of the UC system against privatization, a goal with which the blockade of the US Bank branch was consistent,” the DFA appears to be arguing that participants in the blockade of the bank should not be punished because they are promoting a political cause which the DFA supports. Treating one political perspective more favorable than another, of course, constitutes viewpoint discrimination. A public university that engaged in viewpoint discrimination in regulating expressive conduct would blatantly violate the core principles on which the First Amendment is based. You don’t need to have attended law school to intuit that.”

Brownstein’s and Amar’s consideration of when campus protest becomes punishable is useful for both students and free speech advocates and is well worth your time.

I. Is there a state policy regarding public disclosure of findings or information about child abuse or neglect which has resulted in a child fatality or near fatality?

Yes.
40 out of 40

II. Is the state policy codified in statute?

Yes as to fatalities (Cal. Welf. & Inst. Code §10850.4, Gov. Code § 6252.6). No as to near fatalities (policy is contained in Department of Social Services (DSS) All County Letter No. 08-13 & 10-06).
8 out of 10

III. What is the ease of access to the information?

California’s policy regarding information on fatalities is mandatory with severely restrictive conditions. California’s statute requires release of
some information, upon request, when there is a “reasonable suspicion that the fatality was caused by abuse or neglect” (Cal. Welf. & Inst. Code § 10850.4 (a)) and, upon request, the release of more probative information upon the completion of the investigation of abuse or neglect that has led to a child’s death (Cal. Welf. & Inst. Code § 10850.4(c)). According to the statute, “[a]buse or neglect is determined to have led to a child’s death” if a county child protective services agency determines that the abuse or neglect was substantiated; a law enforcement investigation concludes that abuse or neglect occurred; or a coroner or medical examiner concludes that the child who died had suffered abuse or neglect.

However, when it comes to releasing the more probative information, California’s implementing regulations impose the additional requirement that either (1) the child resided with his/her parent or guardian, and the abuse and/or neglect was inflicted by the parent or guardian; or (2) the child resided in foster care, and the abuse and/or neglect was inflicted by the foster parents (California Code of Regulations, Reg. 31-502.33, 31-502.34, 31-502.35). California’s “All County Letter” policy regarding the release of information on abuse or neglect
death and near fatalities is mandatory (the report “shall” be available to the public upon request).
8 out of 20

IV. What is the scope of information authorized for release?

California’s policy regarding abuse or neglect deaths has substantial breadth. Within five business days of learning that a child fatality has
occurred in the county and that there is a reasonable suspicion that the fatality was caused by abuse or neglect, the information to be disclosed includes the age and gender of the child; the date of death; whether the child was in foster care or in the home of his or her parent or guardian at the time of death; and whether an investigation is being conducted by a law enforcement agency or the county child welfare agency (Cal. Welf. & Inst. Code § 10850.4(a)). If upon completion of the investigation into the child’s death it is confirmed that abuse or neglect occurred, the following documents are also available: all previous referrals of abuse or neglect of the deceased child while living with his/her parent or guardian; the emergency response referral information form and the emergency response notice of referral disposition form completed by the county child welfare agency relating to the abuse or neglect that caused the death of the child; any cross reports completed by the county child welfare agency to law enforcement relating to the deceased child; all risk and safety assessments completed by the county child welfare services agency relating to the deceased child; all health care records of the deceased child, excluding mental health records, related to the child’s death and previous injuries reflective of a pattern of abuse or neglect; and copies of police reports about the person against whom the child abuse or neglect was substantiated. Additional documents are available if the child’s death occurred while the child was in foster care (Cal. Welf. & Inst. Code § 10850.4(c)). The custodian of records must redact the names, addresses, telephone numbers, ethnicity, religion, or any other identifying information of any person or institution, other than the county or DSS, that is mentioned in the released documents (Cal. Welf. & Inst. Code § 10850.4(e)); however, for children who die from abuse or neglect while in foster care, Cal. Gov. Code § 6252.6 authorizes the release of the child’s name to the public upon request.

California’s policy regarding near deaths caused by abuse or neglect, as contained in DSS’ All County Letter No. 08-13 (March 14, 2008) (which also pertains to deaths), is narrow. Regarding near fatalities, data collected in DSS’ “Statement of Findings and Information” is limited to the child’s age and gender, the date of the near fatality, where the child resided at the time of the incident, whether law enforcement or CWS/probation conducted the investigation, and whether a physician, law enforcement, or CWS/Probation determined that it was caused by abuse/neglect. The form explicitly prohibits counties from providing any narrative regarding the case.
17.5 out of 20

V. Are child abuse/neglect proceedings open?

Cal. Welf. & Inst. Code § 346 provides unless otherwise requested by a parent or guardian and consented to or requested by the minor
concerning whom the petition has been filed, the public shall not be admitted to a juvenile court hearing. The judge or referee may nevertheless admit such persons as he deems to have a direct and legitimate interest in the particular case or the work of the court.
5 out of 10*

VI. What’s changed in California since the 1st Edition of State Secrecy and Child Deaths in the U.S. was released in April
2008?

In the April 2008 State Secrecy Report, California’s score was 92 (rounded up from 91.5) earning it an A– . Since then, California has released implementing regulations (California Code of Regulations, Reg. 31-502.33, 31- 502.34, 31-502.35) which place several severely restrictive limitations on the mandatory release of information regarding child fatalities, such as specific requirements regarding the child’s residence as it relates to the perpetrator of the abuse.

Illuminating Information:
•• Under California’s statutory scheme, abuse or neglect is determined to have led to a child’s death if either (1) “[a] county child protective services agency determines that the abuse or neglect was substantiated” (2) “[a] law enforcement investigation concludes that abuse or neglect occurred” or (3) “[a] coroner or medical examiner concludes that the child who died had suffered abuse or neglect. California’s regulations, however, insert a requirement that the evident abuse and neglect suffered by the child be ruled to be what caused the child’s death before information can be released.
•• DSS’ 2010 All County Letter No. 10-06 requires counties to complete and submit a “Statement of Findings and Information” to DSS for cases of child fatalities and near fatalities only when it “is determined” that the incident occurred as a result of abuse or neglect. For child fatalities that are “suspected” to be the result of child abuse and/or neglect, counties are still required to release limited information upon public request. There is no requirement for release of information regarding near fatalities unless and until the near fatality is determined to be the result of child abuse or neglect.
•• While California’s policies are somewhat problematic, their implementation has even greater challenges. In Los Angeles County, for example, the Office of Independent Review found a “pattern of non-disclosure” where blanket objections to the release of information were lodged in 17 of 19 cases in 2009 and 2010, leading to the non-disclosure of information. CAI is pleased that the Los Angeles Times and the Los Angeles Board of Supervisors have continued to look into the problem of non-disclosure but we are concerned that this pattern may not be limited to Los Angeles County.
•• Across the state of California, public disclosure of findings and information about child abuse or neglect which has resulted in a child fatality has caused scrutiny of systemic problems. At a County level, Sacramento County, Los Angeles County, and others have accepted responsibility where appropriate and are making changes to problematic child welfare policies.
•• In Los Angeles County (the county with the largest foster care population in the nation), the Presiding Judge of the Juvenile Court issued a local court order in early 2012 clarifying when the press and public may have access to dependency court proceedings. Local press has utilized this clarification to gain access to dependency courts and give the public information on the Dependency Court process.

Meanwhile the report salutes the coverage of three investigative journalists as rare examples of the press paying focused attention.

The liberalization of public information about child abuse deaths has had benefits in California, where legislation providing for more complete disclosure of child deaths from abuse has yielded important examples of system flaws (not merely the idiosyncratic error), and reforms leading to more refined and correct removal decisions. Since 2008, extraordinary journalists, including Greg Moran in San Diego, Garrett Therolf in Los Angeles, and Marjie Lundstrom in Sacramento, have used multiple examples of system failure leading to child deaths to spark improvement:
•• In the San Diego Union-Tribune, Greg Moran presented the results of that newspaper’s review, preceded by years of petitions in court and Public Records Act requests, of cases that “illuminate weaknesses in the system, including gaps in communication and in enforcement of regulations.” He reported on the lack of information exchange in the transfer of foster kids between placements that led to dangers and deaths.
•• Sacramento Bee journalist Marjie Lundstrom reported on multiple errors by Sacramento CPS and child deaths, leading to her 2011 coverage of corrective efforts: “A searing internal review of Sacramento County’s Child Protective Services has concluded that judgment errors and bias among agency workers were factors in the 2008 death of a 4 1/2-year-old foster child.”
•• Garrett Therolf’s series of stories in the Los Angeles Times exposed systemic flaws in the nation’s largest county. His research revealed a 2008 case involving a severely abused 5- year-old boy. Eight agencies had more than 100 contacts with his family, but those findings were not shared. “When the boy was finally removed from the home, he was so malnourished that his kidneys were failing, his hands burned so badly that he could barely unclench them.” In another case, Los Angeles County mental health and child abuse investigators visited an 11-year-old boy who had told a school counselor earlier that daythat he wanted to kill himself. After speaking to the boy privately at his home, the county workers left. A few hours later, the boy hanged himself. According to Therolf, “[a] review following [the] suicide uncovered evidence that persistent communication breakdowns at the county Department of Children and Family Services may have contributed to the tragedy.” For example, “[i]t was not until after [the boy] killed himself that the workers learned that the stepfather who answered the door had a long history of drug abuse and domestic violence. He was there when county officials visited, even though a court order barred him from living in the home.”15 The examples and detailed documentation provided by Therolf has stimulated agency reforms.

Gov. Jerry Brown acknowledged there would be questions about whether his closed-door session with Los Angeles County supervisors last fall was in violation of the state’s open meetings law.

According to a transcript obtained by The Times, the governor said at one point, “Let’s get our Brown Act cover story.”

Moments later, then-County Counsel Andrea Sheridan Ordin noted that reporters who questioned the legality of the meeting were waiting outside. “You may have folks out there who want to ask questions,” she said.

The Sept. 26 session had been called by supervisors to discuss a controversial plan to shift the care of some prisoners from the state to the county. Before the meeting, several reporters had complained that it should be open to the public. But the discussion proceeded in private.

Brown was “clearly joking,” his spokesman, Gil Duran, said on Thursday.

After the meeting, a Times editorial writer had filed a complaint with the county district attorney that the session violated the Ralph M. Brown Act. And in a Jan. 24 letter to county officials, assistant head Deputy Dist. Atty. Jennifer Lentz Snyder agreed.

Lentz Snyder wrote that the meeting should have been open since the information discussed was not sensitive enough to constitute a public threat, which would have provided the officials with an exemption.

“The closed session was simply not permissible under the law,” wrote Lentz Snyder.

County officials subsequently agreed to release a transcript, which they are expected to do this week.

Duran said Thursday that an unreleased recording of the meeting shows there is laughter following the governor’s comment. “He was mocking the county counsel’s premise for holding the session in closed session, which he thought was questionable.”

Brown and his staff had expressed concern about having a closed meeting beforehand, Duran said.

But the governor, a former California attorney general responsible for advising public officials on Brown Act requirements, accepted Ordin’s reasoning for why the meeting was legal. So, Duran said, he participated.

Gov. Jerry Brown acknowledged there would be questions about whether his closed-door session with Los Angeles County supervisors last fall was in violation of the state’s open meetings law.

According to a transcript obtained by The Times, the governor said at one point, “Let’s get our Brown Act cover story.”

Moments later, then-County Counsel Andrea Sheridan Ordin noted that reporters who questioned the legality of the meeting were waiting outside. “You may have folks out there who want to ask questions,” she said.

The Sept. 26 session had been called by supervisors to discuss a controversial plan to shift the care of some prisoners from the state to the county. Before the meeting, several reporters had complained that it should be open to the public. But the discussion proceeded in private.

Brown was “clearly joking,” his spokesman, Gil Duran, said on Thursday.

After the meeting, a Times editorial writer had filed a complaint with the county district attorney that the session violated the Ralph M. Brown Act. And in a Jan. 24 letter to county officials, assistant head Deputy Dist. Atty. Jennifer Lentz Snyder agreed.

Lentz Snyder wrote that the meeting should have been open since the information discussed was not sensitive enough to constitute a public threat, which would have provided the officials with an exemption.

“The closed session was simply not permissible under the law,” wrote Lentz Snyder.

County officials subsequently agreed to release a transcript, which they are expected to do this week.

Duran said Thursday that an unreleased recording of the meeting shows there is laughter following the governor’s comment. “He was mocking the county counsel’s premise for holding the session in closed session, which he thought was questionable.”

Brown and his staff had expressed concern about having a closed meeting beforehand, Duran said.

But the governor, a former California attorney general responsible for advising public officials on Brown Act requirements, accepted Ordin’s reasoning for why the meeting was legal. So, Duran said, he participated.

CalAware sued the county for the Brown Act violation.  A settlement announcement is expected momentarily in which the county acknowledges CalAware’s and the District Attorney’s positions and pledges not to repeat the practice.

These rights are complementary. Open meetings and public records laws keep information about civic issues freely available. Protections for journalists, activists, whistleblowers and others striving to keep the community armed with the facts and their implications complete the circle of law that it takes to keep Californians aware.

After all, ready access to government meetings and files means little if no one dares report or comment on what they learn. And people willing to take a stand and speak out are easily disabled and discredited if the facts and discussions that advance government and other powerful institutions are sealed away from their discovery.

Why the phrase “public forum?” A public forum is a commons for communication—a space where speech on matters of importance to the community is expected and protected. Many public forums are in the public space literally: streets, parks and plazas where citizens interact, informing and persuading one another. Many others are provided by government: official meetings of local and state bodies where citizens address their elected or appointed public servants, on the record.

Still others are privately owned sectors opened by tradition or law to some civic discourse: newspaper editorial pages, radio talk shows and certain large shopping malls where patrons are encouraged to congregate without having to buy. The most dynamic public forum is the newest — in some spaces private but in many others welcoming news, views and discussion — the Internet.

What trends threaten public forums?
• Excessive official secrecy: A public starved of the facts that are staples of speech.
• Intimidation or retaliation: Too high a price placed on inquiry, reporting or comment.
• Eroding opportunity: Dwindling space or time for expected and protected speech.

Most of us are by now aware that the acronym SLAPP refers to “Strategic Litigation Against Public Participation”—in its purest form, a lawsuit filed to silence speech about public issues, brought by one who finds the speech detrimental to his personal interests.

I would add to the quiver of systematic weapons against self-government the SPEAR— “Specious ‘Privacy’ to Evade Attention and Reform.” Instead of a private person’s using the formidable threat of litigation to discourage constitutionally protected speech by others, the SPEAR involves the government itself using the quieter but equally effective mechanism of secrecy—denial of access to information in public records—to keep people from effectively scrutinizing its faults and foibles, or from even corresponding and comparing notes with one another on the need for reform.

The notion that the core policy or most legitimate purpose of public records access laws is to shed light on government activities and not on private lives is easily said, but sets up a fallacious mutual exclusiveness. In many cases one simply cannot evaluate government activities without knowing, with some particularity, whom they benefit or burden, and how. Moreover, a scheme of protection that allows the government to deem facts “private” and exempt from disclosure simply because they involve identifiable individuals may or may not benefit those very individuals (who are often never consulted or even informed regarding the denial), but may just as easily benefit the desire of government to have its activities and their impact on the individual kept quiet.

Currently, for example, I’m aware of a state agency that has a list of companies that it has dealt with in certain transactions and that has told one of the firms that, on privacy grounds, it may not have access to the list, since some of the companies may be sole proprietors whose business address is also their home address. The purpose of the requester is precisely to contact all others who have had the same transactional relationship with this agency in order to compare notes and see if there is common ground for a collective approach to the agency or perhaps the Legislature that would solve certain problems that the requester has encountered and suspects may be a common experience. In other words, the requester wants to exercise his constitutionally protected rights of assembly and petition if is a sufficient assemblage of likeminded petitioners. The agency knows this, and its firm assertion of a “privacy” basis for refusing to disclose the requested information is forcing the requester to have to hire a lawyer and sue to get the information.

One can easily imagine the same experience where all those involved are truly individuals, affected in their personal rather than business capacities, and thus the privacy label is all the more unhesitatingly applied. One obvious example is the juvenile court system, in which parents who have had their children removed from their custody, not always for entirely just or wise reasons, and sometimes with terrible results, are isolated from one another and deprived of the collective deliberation that might lead to reform.

Likewise third parties—public interest organizations, the press or even elected officials—are disabled from documenting how a variety of social service or other government programs are operating, and particularly from doing so in a thoughtful, anecdotally resonant way, because they are prevented from contacting the human beings who are the ostensible beneficiaries of these programs, even to ask them if they would be willing to share their experiences and shed light on the efficacy of the programs.

In short, a policy that makes individuals inaccessible to inquiry and discussion on privacy grounds may or may not serve their interests, but unquestionably makes government activity that much more opaque to scrutiny.

As an attempt to address this problem, Contra Costa County has enacted, as part of its Better Government Ordinance, the following policy:

Article 25-4.6 Public Records Access

25-4.602 Confidentiality waiver request

Whenever a county officer asserts, as a justification for nondisclosure of a public record, the exemption protecting personal privacy in Government Code section 6254(c), the exemption for names and addresses of crime victims in Government Code section 6254(f)(2), the exemption for taxpayer information in Government Code section 6254(i), any confidentiality or privilege statute referenced under Government Code section 6254(k) the exemption for personal financial data in Government Code section 6254(n), and any other claimed exemption based upon the personal or proprietary interests of a private natural or corporate person, the officer shall cooperate with the requester’s efforts to communicate with the subject of the record as follows, upon request, if the requester fulfills the related terms and conditions.

(a) If the requester is seeking information concerning an unknown number of persons, the officer or designee shall inform the requester of the number or approximate number of persons to whom the public record request pertains. If ascertaining that number involves itemized labor or other costs reflecting more than ten minutes of staff time in research, the requester may be required to pay those itemized costs.

(b) The requester shall prepare one stamped envelope for each of the persons sought to be contacted, with the requester’s return address on the envelope. Within the envelope the requester shall place a letter explaining why the information is being sought and asking the person to contact the requester. The requester may also include a self-addressed, stamped envelope for that purpose. The envelope shall be presented to the officer for mailing.

(c) The officer or designee shall affix to each envelope so received the mailing address of the person who is the subject of the information request and shall mail it, provided that a mailing address is included in the officer’s records. Any staff time required to do so shall be required to be paid by the requester, at the pro rata hourly rate of the employee addressing the envelopes.

(d) If the subject of the record signs a privacy waiver, the record shall be released to the requester if it could lawfully be released to the person authorizing release.

(e) If the subject of the record is legally incompetent to waive privacy interests, the officer shall address the requester’s envelope to the parent, guardian, conservator or judicial officer, as the case may be, if known, with the duty and authority to make such decisions for the incompetent person.

(f) If, in the judgment of the department head, the requester is someone who may misuse the information, or if the records or the subjects of the records are of a sensitive nature, the department head may include in the mailing a caution that the individual need not waive his or her privacy interests. The requester shall be provided a copy of the caution and an opportunity to include a response in the mailing.

The point is that blanket confidentiality or even “opt in/opt out” choices do not and should not exhaust the possibilities for protecting privacy in public records. In fact, given that privacy is a personal right that individuals often exercise in a contingent, selective way, based on nuanced circumstances of context, time, and estimates of their own interest and advantage, an ad hoc informed consent regime such as that adopted by Contra Costa County is one that makes the relevant individual’s informed judgment, not bureaucratic policy, sovereign. Absolute barriers are certainly easiest to administer, but they are also most easily used to keep people from communicating with one another for their mutual advantage—and that of the public as a whole.

MORE INFORMATION

STATUS:

MORE INFORMATION

STATUS:

MORE INFORMATION:

Opinion

STATUS: CalAware may be substituted in as plaintiff in this case