If you’re new to this development, the short explanation is that to realize the earlier approved state budget, a number of changes in the law have been and will be made by trailer legislation.  These changes may have been remarked in earlier budget subcommittee hearings scattered over the past few months, but many if not most never caught the attention of either news or social media—and some of those suspending Public Records Act requirements were simply never discussed in public until they showed up in these bills last Wednesday, to be passed without further discussion on Friday.

The requirements that lawmakers (the Democrat majority, that is) decided to downgrade from legally enforceable mandates to optional “best practices” all have to do with how local government agencies are to respond to citizens’ requests to get a copy of, or even just look at, public records. If the Governor signs these bills into law, local agencies will have the option to no longer:

• Provide a response to a requester within 10 days (extendable by 14 more days in unusual circumstances), informing him or her which information if any will be provided, and which if any will be withheld.
• Provide the notice in writing if the request was made in writing.
• Provide a specific citation to the law(s) permitting the agency to deny an access request.
• Provide practical suggestions to the citizen, to the extent possible, to help him or her improve an unclear or otherwise less effective request.
• Provide requesters for computer records or digital data the information in electronic form at all, or if in electronic form, in the format specified by the requester, even if the agency can produce it in that format. In other words, for example, responses to requests for email discussions on a topic can be confined to either paper records or unsearchable electronic documents.

These requirements were added to the Public Records Act recently enough that if a local agency can document the cost of compliance it can bill the state for reimbursement.  The Legislative Analyst’s Office, in an untypical flight of the purest speculation rather than factual analysis, estimated that over time the state would be saddled with tens of millions of dollars in debt triggered by such nickel and dime claims, and that provided the theoretical basis for solving the problem by suspending the mandates driving these costs.  No more mandates to comply, no more costs of compliance to pay for.

The Steinberg talking points read as follows:

1. The Public Records Act has not been gutted because I would not support such a measure. Records are still accessible to the public.
2. The Governor’s proposal ends a mandate where the state is on the hook for something that local governments should be doing as a matter of course: assisting the public in seeking public records.
3. Why is the State’s General Fund responsible for paying a local agency to do what we all know is a good and best public practice?
4. If locally-elected officials really need a fiscal incentive when it comes to assisting the public then it is right and democratic that local government is held locally accountable.
5. Locally-elected and locally-accountable officials will have to declare on the record whether or not they will continue assisting the public in their search for records, and be held locally-accountable for that decision.

Whether or not these words reflect the Senator’s views, it’s no secret that points 2, 3, and 4 express commonly held views in both houses and both caucuses in the Legislature: mandate reimbursement claims for the processing of basic open government safeguards is a racket. See, for example, the very similar comments of Senator Mark Leno, chair of the Senate Budget Committee that processed the mandate suspensions. That view led lawmakers to insert into Proposition 30, Governor Brown’s revenue measure approved by voters last November, an amendment to the state constitution ending the ability of local government agencies to bill the state for meeting agenda preparation and indeed any other mandate in the Brown Act, existing or future. If the Governor does not, as now widely requested, use his authority to end the Public Records Act mandate suspensions in the trailer bills, then going to the electorate once again to take that Act out of the reimbursement racket as well should be Plan B.  (Meanwhile, of course, there’s likely to be a lawsuit to invalidate these trailer bills as unconstitutional, but even if successful, such litigation would solve only the recent problem—not prevent repeat suspension attempts.)

Plan B, the permanent solution, would not be accomplished until the June primary next year, but it would be relatively simple.  Senator Steinberg and like-minded lawmakers could introduce and pass a Senate Constitutional Amendment (SCA) placing on the ballot for voter approval (or rejection) a proposal to end the ability of local government agencies to claim reimbursement from the state for the costs of compliance with the Public Records Act. In compensation, a separate bill could amend the Act to permit higher charges for providing copies of records to be used solely for private commercial purposes rather than sharing the information with the public—in media reports, public interest research or academic studies, for example.  After all, both state and local agencies say that it’s those industrial “data miners” that add significantly to government costs with no corresponding public benefit.

Although an SCA (or its Assembly equivalent) needs two thirds of both the Assembly and the Senate to pass, the idea should be popular enough to get wide bipartisan support and even co-authorship.  And the Governor cannot veto such legislation.

So the question comes down to: Does Senator Steinberg have what it takes to act on these convictions and lend his leadership to seeing that this controversy is put to rest for good, trusting the people themselves to decide if doing the right thing should be repeatedly declared to be unaffordable by one or the other level of California government?

But as recent state budget-related votes have shown, that’s not always true. And today we are back fighting to defend portions of the CPRA that many assumed would never go away, such as requiring local governments to cite a legal reason before turning down requests for records, requiring a 10 day response time, and providing assistance to the public in making effective records requests.

For some background, read Terry Francke’s June 14th article, Legislature Moves to Neuter the Public Records Act.

So why does this even matter? Well, it matters because information is power and what you don’t know can hurt you.

Take, for example, the ongoing battle between two public agencies—he San Diego County Water Authority (SDCWA) and the Metropolitan Water District (MWD) of Southern California. The SDCWA is a wholesale supplier of water and MWD is its main supplier. MWD sets the rates charged for your drinking water and passes those rates on to SDCWA. Setting those rates is a complicated process, so the more information about how those rates were set, the better. And that’s where this battle gets even more interesting.

According to SDCWA, there have been lots of secret meetings by certain MWD member agency managers where they discussed such things as eliminating funding for SDCWA’s long range projects and conservation measures and setting rates the public pays for drinking water. And this was being done outside of any public hearings. However, in order to prove it, SDCWA needed evidence, and that’s where the Public Records Act is key. Over 18 months ago, SDCWA made a Public Records Act request for documents. Finally, after lots of stonewalling by some of MWD’s member agencies, a judge finally ordered that the records be produced. This information will help determine whether MWD met in secret to overcharge San Diego ratepayers.

But imagine the outcome if the Public Records Act requirement to produce documents within 10 days had been eliminated. It’s possible this matter would never have seen the light of day, and this won’t be an isolated example if the current budget language is allowed to stand.

And this is where we are today, facing a Public Records Act wipe-out unless Governor Brown vetoes that portion of the budget trailer bills and restores all the provisions currently in place.

Today, please call the Governor at (916) 445-2841 and ask the following:

“I urge Governor Brown to veto section 4 of Senate Bill 71 and Assembly Bill 76 (specifically section 6252.8 to the Goverment Code) to restore effectiveness to the Public Records Act.”

Donna Frye

President

Californians Aware

• assist requesters to frame and direct their written requests in effective ways;
• provide electronic records in a format specified by the requester, even if the agency can do so without special cost;
• provide a determination notice within 10 days as to what if any information will be released;
• provide a notice within 10 days that up to an additional 14 days will be needed to make the determination, and what justifies the added delay;
• provide any written response to the requester at all, even if the request was in writing, including a written statement of the legal basis for withholding information.

These CPRA requirements are still encouraged in the bill as “best practices,” and agencies are required to state orally (but not in writing) at their first public meeting of the calendar year beginning in 2014, any intention not to observe these obligations.  But failing to make that statement does not prevent the agency from changing its mind, and in fact an affirmative commitment to continue would not be enforceable in court.

This blog stated in back in February, when the proposed suspensions were more limited, why as a policy matter they are completely bogus, even compared with the previous Brown Act suspensions, which were actually based on some kind of experience.

The purpose of suspending mandates, as shown with last year’s unplugging of certain open meeting law requirements, is supposedly to keep the state from having to pay unaffordable local government claims for the cost of performing extra services added to the law in the last few decades.

In the case of the Brown Act, such documented reimbursement claims accumulated over the years to constitute multiple millions of dollars of obligations from the state to cities, counties and districts. But unlike the Brown Act claim drain, there is no huge and continuing mountain of mandate reimbursement demands under the Public Records Act.  In fact the Commission on State Mandates (CSM) only approved the CPRA requirements for state reimbursement in May 2011, and the Legislative Analyst’s Office (LAO) concedes, “As the CSM has yet to issue a statewide cost estimate, the annual state cost of funding the CPRA mandate is uncertain.”

But nevertheless, the LAO insists, “given the breadth of activities required by the CPRA mandate and the number of local governments affected, we estimate that annual state costs could reach the tens of millions of dollars”

In 10 years, maybe, if never paid.

Otherwise, the estimate is wildly conjectural. The costly Brown Act mandates such as meeting agenda composition and posting became costly simply because they were automatically triggered by every meeting, month after month, of every one of the thousands of local government bodies in the state. They understandably accumulated very rapidly, like the animated brooms propagating around Mickey Mouse in the Sorcerer’s Apprentice sequence of Fantasia.

In contrast, the targeted CPRA mandates are triggered only upon specific requests.The problem is that while the majority of local agencies that already do their best to get back to the requester with a determination within 10 days would probably continue to do so without the mandate, and needing no “best practices” preachments from Sacramento, there are some others that already consider servicing CPRA requests a low priority if not a nuisance.  If they took advantage of the mandate suspension to adopt a “when we get around to it” and hide-the-ball standard, nothing could compel them to do better—not even a lawsuit.

Moreover, this exploitation of the suspension would probably happen very quietly.  Again in contrast with the Brown Act suspension last year, in that episode almost no local agencies took advantage to go dark because to stop posting agendas would have been a conspicuous and politically damaging departure from public expectations, whereas only the CPRA requester would notice if the agency stopped being as responsive or helpful as the law previously required. In a relatively small but persistent percentage of instances brought to CalAware’s attention, the public records request never gets a response of any kind after months of waiting.  Those agencies are the ones who look forward to the proposed suspensions.

The suspect circumstance of this move is that no one has been willing to go on record with even an estimate of the cost savings to the state.  Any reimbursement claims sent to the Controller so far have not accumulated to the point that a number can be ventured.  Thus the suspensions cannot be justified by fiscal necessity.  So what are they doing in a budget bill?  One reasonable conclusion is that someone simply wants to take these burdens off local government whether they are threatening the state treasury or not.  That’s certainly the laissez faire message of the Prop 59 clause in the bills:

The interest being protected is the strong interest of the Legislature in allowing, to the extent possible, local agencies to control the manner in which they perform their public duties, including, but not limited to, the manner in which they comply with the spirit and purpose of the California Public Records Act.

Court: Planners’ meeting agenda must list all actions proposed on a project application—both approval and CEQA findings.

Obamacare: Five U.S. GOP Senators want probe of California’s unique secrecy for health insurance exchange contract data.

California bill to protect email, Facebook or Twitter messages from warrantless searches passes first committee, 6-1.

The Principles present guidance on specific types of information that the drafters believe may legitimately be withheld from disclosure on national security grounds (e.g. current war plans), as well as categories of information that should not be withheld on national security grounds “in any circumstances” (e.g. information on gross violations of human rights).

The Principles are the product of an international initiative, and they are not the same as U.S. policy writ large.  In fact, some of the Principles are inconsistent with current U.S. government practice.

Thus, one principle would preclude the use of secret interpretations of law in the conduct of intelligence surveillance. “The overall legal framework concerning surveillance of all kinds, as well as the procedures to be followed for authorizing surveillance, selecting targets of surveillance, and using, sharing, storing, and destroying intercepted material, should be accessible to the public.” (Principle 10E).

Another principle would provide strong protection to persons who publicly disclose government wrongdoing involving classified information, under certain specified conditions. (Principle 40).

The tools of transparency can be used to attack an open society– by infringing on personal privacy, by violating confidentiality in the exercise of religious freedom or free association, or by making sensitive military or intelligence data available to violent fundamentalist adversaries. But in a briefing paper, the drafters of the Principles disavow such actions.

“The aim of the Principles is not absolute or radical transparency. The Principles, in keeping with international law, recognize that the right of access to information may be limited by other important interests including international relations, public order, public health and safety, law enforcement, future provision of free and open advice, effective policy formulation, economic interests of the state, personal privacy and commercial confidentiality.”

Applying the Principles to the Snowden leaks: one analysis.

The requirements are to provide electronic copies of records in any format used by the agency itself without charge except to recoup literal costs of duplication, and to help information seekers make successfully framed records requests, determine where the records are and whom to request them from, etc.  These provisions would be identified as “best practices,” not enforceable legal requirements, and any agency planning to stop observing them would be required to publicly announce that fact at the beginning of next year.  Californians Aware has strongly criticized these mandate suspensions.

On the other hand, reports CNPA, lawmakers have rejected the judicial branch’s bid to drastically hike the fees chargeable for locating and copying court records.  Instead, a budget trailer bill would radically increase sunshine on the court system by directing its governing body, the Judicial Council, to adopt rules increasing public rights to attend its meetings and for the first time opening up to public access the meetings of its numerous standing committees, where most of the substantial proposals for court governance are initially worked out.  According to a report by Cheryl Miller for the Recorder, the idea originated in the Assembly as a tradeoff:  the courts could not raise records fees but would be given more budget support—in return for more public accountability for how it was spent.

Assembly lawmakers have endorsed a budget policy statement that would end the judiciary’s decades-long practice of convening most policymaking and rulemaking committees behind closed doors — usually without publicly noticing the meetings first or posting their actions later. Fredericka McGee, general counsel to Assembly Speaker John Perez, said the proposal is part of the speaker’s budget “blueprint,” which offers more budget money — $100 million — to the judicial branch with certain “accountability” provisions attached.

Judicial leaders are resisting any legislative mandate, arguing that the chief justice and Judicial Council should be allowed to develop their own Rules of Court for open meetings.”There are cost issues and many considerations,” said Administrative Office of the Courts director Steven Jahr. “It’s not something that can be done in the space of a hastily drawn up trailer bill.”

The open-door proposal, McGee said, stems from the actions of a judicial working group that created a new funding allocation formula for trial courts in work done almost entirely in private meetings. The formula was only made public days before the Judicial Council approved it in April.

“It’s not to say that the methodology is flawed,” she said. “But I kept getting complaints from people that they wished they could have been part of the process and known what was going on.

“The proposal has not been translated into actual budget language yet. And it’s not clear if it has the support of Senate leader Darrell Steinberg, D-Sacramento, who has been much more willing to give the judicial branch additional money without the strings sought by the Assembly.

“A lot of advisory groups meet only by phone,” Jahr said. “Then the question arises, OK, how do you access public presence and comment in cases where you are meeting telephonically?”

Jahr also raised the specter of additional costs associated with opening meetings to the public, although he could not say what would generate those costs or how high they might go.

The judicial branch relies on dozens of subcommittees, working groups and task forces to hash out policies and recommendations on everything from the death penalty appeals process to construction priorities. By the time a proposal reaches the Judicial Council, any contentious issues have usually been settled in private meetings.

Asked earlier this year about opening more meetings to the public, Chief Justice Tani Cantil-Sakauye said she was open to the idea as long as it didn’t generate additional costs or “chill” discussion among participants.

Russell Tice, a retired National Security Agency intelligence analyst and whistleblower, said: “What is going on is much larger and more systemic than anything anyone has ever suspected or imagined.”

Although an anonymous senior Obama administration official said that “on its face” the court order revealed by the Guardian did not authorise the government to listen in on people’s phone calls, Tice now believes the (National Security Agency) has constructed such a capability.

“I figured it would probably be about 2015″ before the NSA had “the computer capacity … to collect all digital communications word for word,” Tice said. “But I think I’m wrong. I think they have it right now.”

If that report left any doubt about how bad the situation is, a separate Guardian story announced:

The National Security Agency has obtained direct access to the systems of Google, Facebook, Apple and other US internet giants, according to a top secret document obtained by the Guardian.

The NSA access is part of a previously undisclosed program called PRISM, which allows officials to collect material including search history, the content of emails, file transfers and live chats, the document says.

In its early days almost a decade ago, Californians Aware designed a number of novelty buttons expressing its various themes.  One of them says, “WANT TO BE FREE AGAIN? Know more about the Powers That Be than they know about you.” That sentiment, wistful even then, was meant to accent the crucial importance of governmental transparency more than to raise alarms about Big Brother.  But other buttons in the series address the privacy issue more directly:

“THE REAL DEAL: You can keep your Patriot Act if I can keep my Bill of Rights.”

“OUR BILL OF RIGHTS: After two centuries, no editors need apply.”

“FEELING SPIED ON? Assume they’re watching you and wink.”

It’s no longer funny.  And secrecy has become the regnant culture of all branches.  The  executive’s Department of Homeland Security, Justice Department and the national security and intelligence “communities” have persuaded Congress to give them classification cover and authority for whatever incursions into civil liberties they feel are useful.  The judiciary has been given a black box court under the Foreign Intelligence Surveillance Act (“Foreign Intelligence” being as misleading as “Homeland Security” or “Patriot”), one of whose functions is to approve such routine bypasses of the Bill of Rights as the NSA’s review of all Verizon (and presumably other) calls.  And the complacent Congress uses its own secret processes to supposedly control spying, especially spying on Americans, and obviously overlooks far more than it oversees.  Our own Senator Dianne Feinstein, chair of the Senate Intelligence Committee, explains patronizingly that the mass snooping is legal, has been for years, and “keeps us safe.” Which “us” does she mean?  And safe from whom?  We are not to inquire, much less discover.

The argument that all this is legal and has been—an immediate and constant drumbeat over the past two days, emanating from all kinds of authorities, from the President of the United States to the CEO of Google—misses two fundamental points.  First, the original “law” was never duly and soberly deliberated. The foundational Patriot Act was drafted and passed, without public hearings, in about six weeks, probably never having been read by most lawmakers. Panic is not a pretty lubricant for legislation terminating liberties, and the passage of this bill could not have been a sweeter triumph for arch-terrorists who truly “hate our freedom,” as President Bush put it. Second, unlike most all other legal governmental operations, national security surveillance is monitored, invisibly, by only a relative handful of people: the Intelligence Committees of the two Houses of Congress, sitting in secret session, and the judges of the FISA court, sitting in secret proceedings. As for self-regulation, clearly even the chief law enforcement agency in the land feels free to ignore its own policy (for example, against using secret subpoenas to gather journalistic phone records) if that seems convenient.  If a federal program in the areas of housing, transportation, education or other domestic initiatives or regulation is sensed as going awry, the courts can be appealed to for correction.  But in any of the domestic surveillance activities reported by the Guardian, a lawsuit to restore control would be dismissed at the government’s insistence, relying on the state secrets doctrine.

So we have been coasting for years, relying on an executive branch whose wholesale scrutiny of our movements, contacts and actions has kept us as safe as a nation naked to its governors can be; relying on a Congress whose members seem convinced of their own exemption from exposure, having never experienced  J. Edgar Hoover and his ways with dossiers; and relying on hidden courts that have apparently seldom seen a surveillance project they didn’t bless  We need to take Thomas Drake’s view seriously, that there is no way back, unless we decide to take freedom itself as an overarching political imperative and make our otherwise greatest public policy commitments Number Two.  The only hope for regaining even some of what has been lost would be to unite as many Americans as possible, left, right and center, in a meta-organization as energetic, tireless and aggressive as the NRA, to kick comfortable bottoms, take names and give a severe haircut to the Patriot Act and its fellow licenses of totalitarian assault on civil liberties.  Tall order?  The tallest.  As with the lion and the lamb, it would mean followers of the ACLU and the Tea Party agreeing to coalesce, and the abortion policy movements, pro and con; and the gun lovers and haters; and the tree huggers and harvesters; and the convinced and skeptical about global warming, etc. All the activists for and against anything else would have to make their number ONE priority—”for the duration,” as the phrase went in WWII—the restitution of basic constitutional privacy with a corresponding transparency of the national security state.

The dual goals—reducing both surveillance and secrecy—reflect the yin and yang of our affliction.  Governmental spying can metastasize only to the degree that it is secret, and secrecy can be preserved only by stripping whistleblowers, the enterprising press and other as yet undisclosed persons of interest of their normal expectations of privacy and due process.  Small groups like Californians Aware are doing all they can to keep government open and expression free in this state, and can only remark on the national tragedy from time to time.  But we, and one would hope most others, would labor overtime and collaboratively toward a national goal of transparency and respect for the Bill of Rights in how we pursue protection from physical harm.  Ben Franklin said it first and best: “They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.”