San Jose Mercury News

11/28/03

Proposal confronts official secrecy

GOVERNOR BACKS STRONGER STATE SUNSHINE LAW

By Jim Puzzanghera
Mercury News Washington Bureau

WASHINGTON - Gov. Arnold Schwarzenegger has championed a proposal to allow greater public scrutiny of state and local government that would strengthen California's weak freedom-of-information laws and could make the state among the most open in the country.

The proposed constitutional amendment, a bipartisan initiative that has stalled in the state Legislature the past two years, would create a public right of access to information and place the burden on government officials to prove why documents and meetings should be kept secret.

Currently, the burden is on the public to prove why information should be available, and in recent years agencies and courts often have favored secrecy over accessibility, creating broad new exemptions that have eroded the state's open-government laws.

``We hope we can create a kind of cultural change in California that people demand access of their government and the agencies understand that is a fundamental right,'' said Tom Newton, general counsel for the California Newspaper Publishers Association, one of the proposal's major supporters. The amendment's goal, he said, is to ``recreate some access that we think we've lost in the last 10 or 15 years.''

A similar constitutional provision has helped make Florida the nation's gold standard for open government. But the true test in California would be how courts interpret cases under the new guidelines, should the Legislature and voters approve them.

The amendment, SCA 1, probably could not make the ballot until November 2004.

Schwarzenegger's embrace of the constitutional amendment has encouraged those who have complained for years that California's freedom-of-information laws have become increasingly ineffective. The new governor made political openness part of his campaign platform, calling for a ban on campaign fundraising during the budget process and endorsing SCA 1.

But some critics say Schwarzenegger has not lived up to those promises -- by raising money while lawmakers consider his budget cuts, and by giving little public access to his own activities, including his invitation-only inauguration.

Sticking point

Schwarzenegger reiterated his support of SCA 1 at his first press conference as governor, saying he wanted to ``allow sunshine into the darkest corner of state government.'' But he may have made it more difficult to get the changes into law by saying he wants to remove an exemption for the state Legislature that was inserted by the Senate.

California's drive for more open government bucks a nationwide trend of increased restrictions on government activities and documents after the Sept. 11, 2001, terrorist attacks. But backers of the California measure say they want to reverse a different trend -- state courts broadly interpreting exemptions in the freedom-of-information laws.

``Rather than having a citizen prove he or she has the right to information, a governmental agency would have to prove why it should remain a secret,'' said state Sen. Bruce McPherson, R-Santa Cruz, who is a co-sponsor of SCA 1. The author is Senate President Pro Tem John Burton, D-San Francisco.

California's existing laws are not necessarily the problem. It's the way judges have interpreted them in recent years that has led to an erosion of public access, said Terry Francke, an attorney for the California First Amendment Coalition, a non-profit advocacy organization that is backing the amendment.

A 1998 report by the state Legislature's Task Force on Government Oversight concluded that the 1968 California Public Records Act ``has been turned into a paper tiger by state officials who know they face no penalty if they refuse to release public information.''

It's hard to gauge how California compares with other states on open government because there are no comprehensive rankings. A limited ranking of state freedom-of-information laws done in 2002 by the Better Government Association, a non-partisan government-watchdog group, placed California 19th among the 50 states.

Florida the leader

But because the study looked only at the laws and not how they were applied, California ranked about the same as Florida. That state is widely regarded by experts as the best in the country because of how its laws have been interpreted.

Only Florida and Montana have strong open-government provisions in their constitutions, said Bill Chamberlin, director of the Marion Brechner Citizen Access Project at the University of Florida, which studies open meetings and records laws nationwide.

The Florida Constitution states, ``Every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf.''

It does exempt some specific records.

The exemptions, however, are extremely narrow, Chamberlin said.

Backers of the California proposal want to do the same thing. SCA 1 states, ``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.''

The proposal also says a statute or court decision ``shall be broadly construed if it furthers the people's right of access, and narrowly construed if it limits the right of access.''

A constitutional amendment must be approved by two-thirds majorities in the state Senate and Assembly, but does not require the governor's signature. Still, Newton and Francke said Schwarzenegger's support would be helpful, even if they were disappointed the governor has not agreed to allow public scrutiny of his schedule until it is required by a new law.

Necessary evil

Schwarzenegger's push to remove the exemption for the Legislature, however, could cause a problem, Francke said. SCA 1 unanimously passed the Senate and probably would have easily passed the Assembly, if it hadn't been caught up in budget wrangling.

Francke viewed the exemption for the Legislature as ``a necessary evil'' to get the proposed amendment passed. Burton said removing the exemption would not bother him. But it could be a sticking point with some legislators, and Schwarzenegger might be forced to seek a ballot initiative if he wants to change the existing proposal, Francke said.

Margita Thompson, Schwarzenegger's press secretary, said she did not know if the governor would support such a ballot initiative if the Legislature balks.