PUBLIC INFORMATION – Thomas Peele, award-winning investigative journalist for the Contra Costa Times and the Bay Area News Group, reports that a recent trial court decision in Sacramento not only shines light on the parole supervision of a suspected sex slave kidnapper but for the first time recognizes the force of Proposition 59, the open government constitutional amendment.
More than five years ago California voters overwhelmingly passed Proposition
59, which inserted the public's right to access government records into
the state Constitution.
Here is the substance of what more than 83 percent of voters in the 2004 general election approved:
The people have the right of access to information concerning the
conduct of the people's business, and, therefore, the meetings of
public bodies and the writings of public officials and agencies shall
be open to public scrutiny.
A statute, court rule, or other authority, including those in effect on
the effective date of this subdivision, shall be broadly construed if
it furthers the people's right of access, and narrowly construed if it
limits the right of access. A statute, court rule, or other authority
adopted after the effective date of this subdivision that limits the
right of access shall be adopted with findings demonstrating the
interest protected by the limitation and the need for protecting that
That language seems simple enough, especially the
part that requires the rules effectively the Public Records Act be
broadly construed if they further the right of access. The law already
statutorily required a broad view of disclosure, but putting the same
language in the Constitution added significant weight.
But then comes the legal mumbo jumbo the words that seem
to mute much of the above: Nothing about Prop. 59 shall nullify the
right to privacy, or any statutory exemption to access to records.
other words, Prop. 59 starts great and ends poorly. It took a lot of
compromising language to get it on the ballot language that
effectively gives the government's information gargoyles too much
wiggle room to disregard the voters' intent.
I cite Prop. 59 in
every public records act request I file and in many, many arguments
with bureaucrats as I try to wring public records from them.
has, for years, been largely an effort in futility. Bureaucrats don't
think outside of the preverbal box, and judicial interpretations tend
to come slower than BART expansion, or the Caldecott Tunnel's fourth
bore, or the new Bay Bridge. In other words, never as quickly as the
public needs them.
The problem always seems to be that there is
no clear judicial writing on Prop. 59's meaning, something, when
needed, that can be used as a figurative club in the fight for access.
one has finally arrived. And bizarrely the person at the root of it is
Antioch's Philip Garrido, the convicted sex offender who is accused of
keeping Jaycee Lee Dugard captive in his backyard for 18 years.
pair of newspaper companies McClatchy and Hearst sued the
California Department of Corrections and Rehabilitation for Garrido's
parole field file after the department refused to release it under the
Public Records Act.
At the heart of the newspapers' argument was
a simple question: How did Garrido manage to avoid being found out for
nearly two decades when parole agents were supposed to be checking up
The state argued that regulations made the file exempt
from disclosure. But that's where Prop. 59 made what is arguably its
biggest difference yet.
Sacramento County Superior Court Judge
George P. Marlette ordered the records released, specifically citing
Prop. 59 because the regulation was adopted in 2009 well after voters
amended the Constitution and it didn't contain any findings
demonstrating why limits on disclosure were appropriate.
Marlette then went on to write in his decision that Prop. 59 also requires the principle of the broad view of disclosure.
The case was argued by attorney Karl Olson, who has also worked for the Bay Area News Group.
the likelihood that aggressive parole oversight of Garrido would have
saved Dugard years of terror and imprisonment, the public interest in
disclosure was "at its apex" in the case, Olson said. "It was obvious
from the start that this was an egregious situation."
There are no higher needs for access to government records when those records illuminate wrongdoing, incompetence or corruption.
and behold, the records that Marlette ordered released because of his
interpretation of the constitution showed parole agents had little
interest in thoroughly checking on Garrido and didn't even realize for
a year after he moved from Nevada that he was a registered sex offender.
here in the trenches, Marlette's reliance on Prop. 59 is a welcome
weapon, although certainly not one worth a minute of Jaycee Dugard's
suffering. Perhaps the disclosures the judge ordered will prevent
someone else from experiencing her horrors.