First Amendment and open government news
Vol. 14, No. 38, November 5, 2004
Capitalizing on Prop 59 landslide, CFAC files formal request for Governor's
calendar of meetings and appointments
(CFAC 11/5/04) -- Here at CFAC the second biggest story of the week was the passage of Prop 59, the Sunshine constitutional amendment, by a veritable landslide -- more than 83% of the vote.
Barely had the polls closed when we moved to capitalize on the changes effected by Prop 59 -- which Governor Schwarzenegger endorsed--by filing a formal records request with the Governor for his calendar of meetings and appointments for the past year.
Gubernatorial calendars have been off-limits under the Public Records Act since 1991, when the California Supreme Court, in a misguided foray into judicial activism, held that then-Governor Deukmajian was within his rights in denying a Los Angeles Times' request for his calendars.
Since none of the act's express exemptions applied, the court in Times Mirror v. Superior Court created a new theory of exemption -- for records claimed to reveal an agency's "deliberative process" -- that the court said was implicit in section 6255, the act's catch-all exemption provision.
Prop 59 was intended to, among other things, reverse both the result and reasoning of the Times Mirror case. As explained in CFAC's records request:
"Prop 59 requires that any statute or other authority that 'limits the right of access' be 'narrowly construed,' (and that any law 'further(ing) the people's right of access' be 'broadly construed'). The Times Mirror case did the reverse: broadly interpreting section 6255 -- and importing into it an entire doctrine of 'deliberative process' . . . while giving little or no weight to the Public Record Act's essential requirement of access."
The deliberative process exemption is now relied on routinely by both state and local agencies to withhold records that are confidential only because they are potentially embarrassing. Examples include cell phone bills of City Council members, even when the bills are paid by taxpayers. In a litigated case, the deliberative process exemption was invoked to withhold applications to the Governor for a vacancy on a county board of supervisors.
Records of the Governor's meetings and appointments -- who he met with, when, and for how long -- are valuable to the public because they indicate which special interests have the ear of the Governor, the extent of their access, and the issues that they care most about. Such records would be of obvious interest to historians, journalists and, through them, to the public generally.
We're optimistic that the Governor will agree with us about the effect of Prop 59 and turn over the calendar records. --PS
For more information, use these links:
CFAC
record request
CFAC
press release
Times
Mirror decision
------------------------------
CFAC IN THE NEWS
------------------------------
Eureka voters frustrated that they can't find out who's behind local political
ads
First Amendment
experts says South City billboard tax is unconstitutional
----------------------------------------------
HOTLINE QUESTIONS & ANSWERS
----------------------------------------------
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 at the national law firm of Piper
Rudnick, CFAC's general counsel.
Polling Place
Q: I'm a news photographer. Today's election day and I went to several Bay Area polling places to take pictures of voters for my newspaper. A poll worker told me I had to stay at least 100 feet away from the polling place. Is this right?
A: Not exactly. Elections Code section 18541 provides that it is illegal to, within 100 feet of a polling place, "WITH THE INTENT OF DISSUADING ANOTHER PERSON FROM VOTING," to photograph a person. A violation carries up to one year of jail time, but of course intent is key. You should refrain from getting into peoples faces or intimidating them.
Polling place is defined as the room where polling takes place. There is another provision that prohibits persons not voting or there to enforce law and order from entering the "voting booth area," which is not defined by the statute but would appear, based on the term "polling place," to mean a smaller area within the polling place where the voting booths are located. The intent would be to prevent people from violating the secrecy of the persons marking their ballots.
Police "mug" shots
Q: I'm trying to get a copy of a booking photo of a person booked in
a county jail. The police say they can't release the mug shot unless,
and until, there is a conviction. Is
this true? Thanks.
A: CFAC has taken the position that the mug shots HAVE to be provided. However, you should know that the Attorney General has taken the position that disclosure is discretionary. In any event, there is no statute preventing the release.
--------------------------------
MORE FIRST AMENDMENT AND OPEN GOVERNMENT NEWS
---------------------------------
If you have suggestions for items to be included in CFAC's weekly Flash,
please e-mail them to Peter Scheer