First Amendment and open government news
Vol. 15, No. 1, January 7, 2005
YOU ARE HEREBY ORDERED TO PAY ATTENTION
By Peter Scheer
(CFAC 1/7/05) -- If you've ever spoken before a city council or other public agency, you know how frustrating it can be to try to get your point across to a panel of elected officials, not one of whom is paying even the slightest attention to what you're saying. Now comes a court decision that declares that such lack of basic courtesy is not only bad form, but illegal.
The case concerns an East Los Angeles strip club, the Blue Zebra. At a hearing before the LA City Council to decide whether Zebra's strippers could perform until 2 AM, the club's attorney was given the standard Council treatment: members talked on their cell phones, chatted with each other, walked about the room -- just about everything except listen to the lawyer's presentation. And their inattention was memorialized on a video tape that was later used as evidence.
In a sharply worded decision, the 2nd District Court of Appeal ruled that the Council has to listen when arguments or evidence are presented -- especially when the Council, functioning in a quasi-judicial capacity, is being asked to take action directly affecting a single business or person. "A fundamental principle of due process is 'He who decides must hear,'" the court said. "The inattentiveness of council members during the hearing prevented the council from satisfying that principle."
Hear, hear.
THE GOVERNOR'S CALENDARS: MAYBE MORE THAN MEETS THE EYE
(CFAC 1/7/05) -- Responding to our records request, Governor Schwarzenegger on December 22 turned over to CFAC 350 pages of calendar entries showing the Governor's appointments and meetings during his first year in office. This happened at 2PM. By 4PM the paper records had all been scanned, converted to digital files, and emailed to two dozen political reporters -- in time (but barely) for most to meet their deadlines. Later in the day the calendar records were posted, for all to read and download, on CFAC's web site. (You can see them here)
The calendar entries are tantalizing, but also maddening in their incompleteness. While the participants and subject matter of some meetings are clearly shown, for many others one can see only the subject, but not who attended, while for still others one can see who attended, but not what the meeting was about. While some information no doubt has been redacted, most of the "holes" in the calendars may just reflect the way the calendars have been kept (by secretaries who never expected them to be made public).
This means that the holes may be fillable -- not by requesting records that might not exist, but simply by asking questions. Who precisely did the Governor consult with at a January 13 meeting with "workers' compensation stakeholders"? Why did the Governor meet three times with Yazaburo Mogi, CEO of the Kikkoman soy sauce company? Indeed, several reporters, by calling the Governor's press office and Administration sources, have already been able to fill in a number of holes in the calendars. -PES
RON BURKLE IS BACK
(CFAC 1/7/05) -- Readers of Flash are familiar with billionaire investor Ronald Burkle from CFAC's litigation with CALPERS, the California retirement system, over disclosure of management fees paid to private equity firms, including Burkle's Yucaipa Companies. Yucaipa received $8.7 million in fees in 2003. Burkle has been a generous supporter of state Treasurer Phil Angelides, who happens to sit on CALPERS' board, and he has also employed former San Francisco Mayor Willie Brown, another CALPERS' board member.
Embroiled in a messy divorce, Burkle is trying to keep under wraps records filed in the divorce proceeding that detail his personal assets. Ordinarily, such filings are a matter a matter of public record. But Burkle is invoking a new California law that requires the sealing of financial records in divorce cases upon the request of either spouse. So far Burkle is succeeding in shielding the records, despite objections from the Los Angeles Times and the Associated Press, which have filed pleadings in the case arguing that the sealing statute is unconstitutional.
The new statute has a curious history. Backed by Senate President Pro Tem John Burton, it was passed by both houses of the Legislature in April 2004 as "urgency" legislation -- meaning that it would take effect immediately -- and signed into law by Governor Schwarzenegger in May. This followed Burke's failure in late 2003 to convince the divorce court to seal his financial records, a step the court then had the discretion, but not the obligation, to take. In February and March last year, Burkle made contributions totaling approximately $147,000 to Schwarzenegger and the Democratic State Central Committee.
The constitutional challenge by the LA Times and AP is pending. Stay tuned. -PES
First Amendment groups urge Schwarzenegger to use executive orders requiring agencies to loosen grip on public records. Letter to Gov relies on Prop 59
(CFAC 1/7/05) -- Organizations advocating open government and first amendment rights, including CFAC and the California Newspaper Publishers Association, have submitted a letter to Governor Schwarzenegger, formally requesting that he issue executive orders to require state agencies to loosen their grip on records requested under the Public Records Act.
The letter recommends, among other things, that state agency heads, when exercising discretion in reviewing requests for records or to open meetings, be directed to grant the requests unless denial "serves a clearly defined and demonstrable public interest" such as "anti-terrorism security." The organizations also urge that government employees' pay and promotions be tied to their compliance with government access laws.
The letter is modeled on a request submitted to the Clinton Administration in the early 1990s, which is credited with changes in federal policies that increased media and public access to records in the Clinton years, including an acceleration in the declassification of national security information. The letter to Schwarzenegger is based on Prop 59 and argues that the requested policy directives are necessary to implement Prop 59. To read the letter, go here.
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CFAC HOTLINE Q & A
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The Hotline is CFAC's online legal information service. Questions from reporters, government officials, civic activists and the occasional crackpot are answered by media law specialists Roger Myers, Katherine Keating, and Joshua Koltun at the national law firm of DLA Piper Rudnick Gray Cary, CFAC's general counsel.
DNA records
Q: I am the webmaster of a site tracking the case of a serial rapist/killer. I would like to gain access to the crime files of a local Sheriff's department regarding the killer. The statute of limitations on the rapes committed by this person expired over a decade ago.
There is DNA information in the crime files that has never been released to the public. I believe it could be used to identify the rapist. Since a DNA profile of the rapist exists, I do not think that it is neccessary to withold any information contained in the investigation files. I would like to access the DNA records so I can post any relevant information on my Web site which could generate new leads to reveal the perpetrator's identity.
Any advice would be immeasurably appreciated by myself and the victims.
A: You can make a Public Records Act request for the documents you seek to the Sheriff's department directly, using the forms on the CFAC website. It is quite possible that the Sheriff's Office will assert that the records are exempt from disclosure pursuant to Government Code section 6254 (f), which deals with investigations by law enforcement.
Unfortunately, there are cases that say that investigating agencies can withhold documents even when an investigation is closed. Williams v. Superior Court, 5 Cal. 4th 227 (1993); Rivero v. Superior Court, 54 Cal.App.4th 1048 (1997). It may be possible to argue that, since the voters passed Proposition 59 at the last election, these cases are no longer good law. Your email suggests that even though the old cases may be closed, it may be tied to a current investigation in Orange County. If that is true, the Sheriff's Department may rely upon that as an additional basis for withholding information under exemption (f).
I hope that is helpful.
On-line Web journals
Q: I have been served with a restraining order in my county for comments that I posted to a Web site. The plantiff's justification is that I have engaged in a course of action against her. Nowhere in the posts is her name mentioned specifically, I make no plans to do her physical harm, but make it very clear that I do not like her. I never directly contact her. Wouldn't I be protected under the First Amendment as what I did was not criminal? Thank you for your insight.
A: You are right that the first amendment is implicated in determining whether a statement or series of statements is a "true threat." Courts will look at all of the surrounding statements and circumstances. In general, courts seek to determine whether the person making the allegedly threatening statement, under the circumstances in which it is made, specifically intended that the statement be taken as a threat, even where there was no intent of actually carrying out the threat.
For a person to be prosecuted, the statement, under the circumstances, has to be "unequivocal, unconditional, immmediate and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, [to] thereby cause[] that person reasonably to be in sustained fear for his or her own safety or his or her immedate family's safety". Penal Code section 422. You may be interested in a recent California Supreme Court case interpreting those provisions, In Re George t. 33 Cal.4th 620 (2004).
However, under Code of Civil Procedure section 527.6, a person can get a restraining order against someone for "harrassment," which is a "knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harrasses the person and that serves no legitimate purpose."
As you have described your postings, it is difficult to tell whether in fact they would form a legitimate basis for a restraining order against you. The other important First Amendment question would be whether the restraining order is forbidding you from making those statements, or merely prohibiting you from approaching that person. If the restraining order is aimed at your behavior rather than your speech (and I acknowledge that the line is not always easy to draw), it may not raise any First Amendment issues.
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If you have suggestions for items to be included in CFAC's weekly Flash,
please e-mail them to Peter Scheer