Sam Stein, writing in the Huffington Post today, reacts to Obama transition team chief John Podesta's announcement that the team will publicize the names and agenda items of the groups that are meeting with it,
This approach, to say the least, is a startling departure from the none-of-your-business attitude shrouding the process of "stakeholder" (read: special interest) policy advice and consultation in the Administration now ending and even the one before that.
But it's also a rejection of the risk-averse confidential consultation style given the California Supreme Court's blessing 17 years ago when a four-justice majorityall appointees of Governor George Deukmejiandecided that an effective "deliberative process" dictated that the public had no compelling reason to know who had met with Governor Deukmejian over the first five years of his incumbency. This decision ended a lawsuit brought by the Los Angeles Times seeking access to the governor's appointment calendars under the California Public Records Act.
Here's the court's view of the competing interests.
One could readily imagine additional public benefits accruing from disclosure of the Governor's private itinerary, as well. It could be argued, for example, that the prospect of publicity would expand rather than contract the number and variety of persons meeting with the Governor. Disclosure might also reveal whether the Governor was, in fact, receiving a broad range of opinions, and ultimately whether the state's highest elected officer was attending diligently to the public business.
Moreover, in response to the assertion that disclosure could chill the flow of information to the executive office, one might argue, as the Court of Appeal concluded, that the Governor's advisors should be made of "sterner stuff"; we need not assume that the Governor, or those otherwise inclined to confer with the Governor, would be deterred by the mere specter of publicity.
The answer to these arguments is not that they lack substance, but pragmatism. The deliberative process privilege is grounded in the unromantic reality of politics; it rests on the understanding that if the public and the Governor were entitled to precisely the same information, neither would likely receive it. Politics is an ecumenical affair; it embraces persons and groups of every conceivable interest: public and private; popular and unpopular; Republican and Democratic and every partisan stripe in between; left, right and center. To disclose every private meeting or association of the Governor and expect the decisionmaking process to function effectively, is to deny human nature and contrary to common sense and experience.
Times Mirror Co. v. Superior Court (State of California), 53 Cal.3d 1325, 1344 (1991) (Emphasis added)
Who's right: Barack Obama or the Deukmejian Four? The best test may be in whether this window on who wants what from the President is carried over into the Oval Office after January 20.
Excellent – this just what Obama promised.
Of course the public won’t be at the meeting to know if what was on the agenda is what was dicussed. I seem to recall that Florida allows the press/public to sit in on executive level meetings with the Govenor?
San Francisco waived Deliberative process in ’99 as well as draft and general balancing test – Surprise – nothing-bad-has-happened – Mayor still gets good advise, if someone really is afraid of giving input they just provide it verbally which was always an option.
Generally SF public officials calendars I’ve seen are not particularly interesting- though the detailed calendar requirements in SF Sunshine are difficult to enforce fully. As more and more used calendar software and the invite tools these may have more value showing all invitees.
The agenda under CPRA for anyone but the Governor would be discloseable again if they want a secret meeting we are aware of no paper and pens ground rules which are common in City Hall
SF Sunshine has clear provisions for Oral Public Information/Inquires in addition to records not just limited to PIO’s which has not been well tested – this may result in an ability to get information on what happened at the verbal only meetings. But this is not deposition level stuff I’m not sure what the penalty is if someone provides misleading Oral Public Information.
Also have you blogged about the Obama two way discussion established called A Seat at the Table
http://change.gov/newsroom/entry/seat_at_the_table/
I would like to see the meetings go the full way in transparency – either to have a recorded telephone conference call to allow anyone to listen or recorded audio or video webcast – even if just using a simple webcam.
I would favor the webcast, to provide a record that people could use who only discover the fact of the meeting later. I think a conference call has its own manageability problems unless connecting people with a predetermined common goal. Or to put it differently, if all people want to do is listen in and stay informed, they can do that with the webcast or other recording. If they want to speak up as a co-participant in the meeting itself, you have the challenges of a call-in talk show: screening out the nuts, louts and others who have no interest in advancing the purpose of the meeting. These folks certainly have a right to speak, but I don’t think their participation is what anyone would welcome in the kind of meetings involved here, and could quickly give open government a bad name. If they have something to say they (and anyone else) can send an e-mail or join an online discussion later, when invited to react to the record of the meeting, or if the proposal ever gets close to policy adoption, anyone has the normal processes of making his or her viewpoint known to lawmakers or regulators. But meanwhile at the earliest phase of pitching the government, a place at the table is one thing; a place at the mic another.