Copyright 2004, Sacramento Bee

SacBee's Dan Weintraub urges Schwarzenegger to disclose records requested by CFAC. Also proposes legal changes to make Legislature more open.

(Sacramento Bee 11/11/04) -- As a candidate, Schwarzenegger pledged to give California a "sunshine law" that would open the state's records to public inspection. His aides said his model would be the law on the books in Florida, where virtually everything public agencies do is available for public view.

Sell It Yourself
But once he took office, Schwarzenegger backed off. He never proposed the promised legislation, and he resisted requests for records held by his office.

Schwarzenegger, however, did support Proposition 59 on the Nov. 2 ballot, a measure to enshrine the state's open records law in the constitution. That amendment, broadly written, seeks to sweep away years of adverse court decisions that have little by little eroded the public's right to know what their government is doing and why.

The constitutional amendment, which passed by a wide margin, doesn't by itself change the public records law. But it requires judges in future cases to interpret the law with a bias toward openness, and puts the burden of proof on the government to justify keeping records secret.

Now the people who sponsored the proposition - the California First Amendment Coalition - have filed a request that will test the new law, and with it Schwarzenegger's commitment to fulfill his campaign promise.

The coalition's request seeks the release of appointment calendars, daily schedules and all other information to show the governor's meetings and other activities since taking office a year ago.

The request is important because it zeroes in on a key case decided in 1991, when the state Supreme Court ruled that former Gov. George Deukmejian's appointment calendar was exempt from disclosure because it was part of the "deliberative process" of government. The idea was that people seeking to influence state policy would be inhibited, and the governor would be shy about seeking advice, if all parties knew that their contacts would be disclosed to the public.

The same exemption has been broadened over the years to also keep secret drafts and reports prepared by government staff members, with the public gaining access only to the final product after it has been cleansed by top officials with an eye toward any political fallout that might result.

This kind of information can be crucial in holding our government accountable. For instance: Did advisers warn former Gov. Gray Davis of the coming electricity crisis months before it hit? Did they see the budget mess on the horizon and urge him to avoid it, only to be ignored?

As for Schwarzenegger, what options did he review and discard for overhauling the state's workers' compensation system before deciding on the proposals he accepted last spring? And with whom did he meet before forming his energy policy?

Certainly, any information can be abused. Political operatives will seek access to the internal discussion of controversial decisions, and a governor who ignores the advice of his staff will, in some cases, be hammered for it. And some sensitive information that used to be put on paper will be transmitted orally instead to keep it from ever being seen by the public.

But that's a risk worth taking to give the public a greater understanding of the factors its elected servants are weighing before taking action that affects our lives. Government can function in the open, even if it can sometimes make life uncomfortable for the players involved. Remember, these people work for us, not the other way around.

Schwarzenegger, in a press conference after the election, seemed to suggest that he saw the passage of Proposition 59 as an expression of the public's desire for open government. And while his language was awkward, the governor indicated that he was happy to comply.

"The people of California are so smart," Schwarzenegger told reporters. "Proposition 59, if you think about open - let the sun shine in - this is a terrific idea. The people made the decision. No one now can complain upstairs. No one can say, 'Well, we're not going to do that, because we still want to make our deals and not let the people look inside, or the press look inside.' I think we opened it up."

Still, his reference to the people "upstairs" - apparently meaning the Legislature - left some doubt about his intent. In the past the governor has said he would open his records when the Legislature opened theirs. But Proposition 59 specifically exempted legislative records from disclosure.

Rather than whine about the Legislature's secrecy, Schwarzenegger should lead by example. He should comply with the new law, let the "sun shine" on the executive branch and then propose another law to force the Legislature to do the same. If lawmakers balk, he can make the idea part of the government reform agenda that he is thinking of placing before the voters.

If, instead, the governor continues to delay fulfilling his pledge and insists upon hiding behind the skirts of the Legislature, he risks looking weak and insincere. You might even think of him as a public information girlie-man.

By Daniel Weintraub