First Amendment and open government news
Vol. 15, No. 6, February 28, 2005
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COMMENTARY
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Two months after release of Governor’s appointments calendar, all 11 statewide officials have followed suit (even Kevin Shelley!), establishing a new political ritual of self-disclosure, akin to candidates’ release of income tax returns.
By Peter Scheer
Two months ago Governor Schwarzenegger, responding to a request by CFAC, made public his calendar of appointments and meetings for his first year in office. It's not too soon to assess the impact of that surprise decision.
The Governor's action reversed a long-time policy of gubernatorial secrecy that had been blessed by the California Supreme Court in a 1991 decision, Times Mirror v. Superior Court. That much-criticized decision held that the Governor's calendar could be kept secret to protect the chief executive's "deliberative process." Of course, the very reason for seeking access to officials' calendars is to get a look at their "deliberative process"--to see who is influencing government policy and whether decisions are being made on their merits or for political reasons.
In the weeks following Schwarzenegger's release of his calendar, media organizations requested and received the appointments calendars of every California elected official holding statewide office:
* Attorney General Bill Lockyer,
* State Treasurer Phil Angelides,
* Controller Steve Westly,
* Insurance Commissioner John Garamendi,
* Lieutenant Governor Cruz Bustamante,
* Superintendent of Public Instruction Jack O'Connell, and
* State Board of Equalization members Betty Yee, Bill Leonard, Claude
Parrish, and John Chiang.
Even Secretary of State Kevin Shelley, though preoccupied with other matters, turned over his calendar to the San Francisco Chronicle and CFAC as one of his last official acts before leaving office.
This unprecedented drawing of drapes on government decision-making derives from Prop 59, passed overwhelmingly in last November's election. Although Prop 59 says nothing explicitly about the Times Mirror decision or the "deliberative process" privilege, its broad, open-government mandate has changed political expectations in a way that is, for the moment, more important than the legal status of exemptions to open-government laws.
Schwarzenegger's release of his calendar, in the wake of Prop 59, has created a new political norm that is irreversible -- regardless of what the courts might ultimately say about Prop 59.
The new norm is analogous to the ritual release by candidates for national and statewide office of their federal income tax returns. This practice, once the rare exception, is now the rule of contemporary politics--a legally-voluntary but politically-required act of compelled self-disclosure to voters.
One cannot imagine a serious candidate for president or governor declining, on grounds of confidentiality, to disclose his tax returns. That would be political suicide. Similarly, California's next governor will not have a choice about disclosing his (or her) appointments calendar. The next governor will have to release it, whatever happens to the Times Mirror case, or face the voters' wrath for refusing to do so.
Although Schwarzenegger deserves credit for tossing aside the discredited policy of previous governors, both Democrat and Republican (it was Governor George Deukmejian, a Republican, whose calendar was at issue in the Times Mirror case), his embrace of Prop 59 has been less than enthusiastic, his view of its legal meaning ambiguous at best.
Recently, his office denied a public records request filed by CFAC (and a similar request filed by the San Jose Mercury News) for the appointments calendars of the Governor's top aides, Chief of Staff Patricia Clarey and Senior Advisor Bonnie Reiss, for a one-week period, September 13-20, 2004, when Schwarzenegger was deciding which of the multitude of legislature-passed bills on his desk to sign and which to veto.
The stated reason for withholding these records: the deliberative process privilege.
This backpedaling from the clarity of Schwarzenegger's earlier endorsement of Prop 59 and the release of his own appointments calendar has, unfortunately, sent a mixed signal to officials further down the political food chain.
A Tulare County supervisor and the CEO of a public hospital in San Diego, for example, are among the lower level and local officials who, in recent weeks, have declined to disclose their calendars, claiming protection under the deliberative process privilege.
For such officials, asserting a need for secrecy in the face of the contrary action by the Governor and all eleven statewide constitutional officers, is the height of hubris. They are implicitly claiming to be more important than the governor, the attorney general, the state treasurer, and the other constitutional officers.
Voters will reasonably infer that these and other secrecy-obsessed local politicos are either dimwits or have something to hide. And at the end of the day, that new political reality -- an intolerance for grandiose claims of special privilege -- may be the true legacy of Prop 59.
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FIRST AMENDMENT AND OPEN GOVERNMENT NEWS
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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, Brooke Beros, Isela Castaneda, James Chadwick, Ed Davis, Katherine Keating, Joshua Koltun , Diana Ng Fung, and Danielle Van Wert at the national law firm of DLA Piper Rudnick Gray Cary, CFAC's general counsel.
Have a legal issue? Submit
your question here.
City Council names building without notice
Q: Earlier this month our mayor - during the oral portion of the city council meeting -- stated that he decided to name a city building after a former member of the council who is also a former assemblyman. He asked for unanimous concurrence of the council. Two members of the council questioned the propriety of the action, but the mayor changed the request to a majority concurrence.
The issue of naming the building and/or honoring the former colleague was NOT on the agenda.
At the next council meeting an item was put on the council agenda to discuss adopting a policy and/or procedure for naming of public buildings. The mayor appointed a committee to address the policy/procedure. However, he refused to do anything about the previous meeting's action.
Since the issue of naming a public building was not on the council agenda - and there was no allowance for public comment - is this a Brown Act violation?
A: As you have presented the facts, it would certainly appear that there has been a Brown Act violation. If an action item wasn't on the agenda, action should not be taken on it. That is not a matter that can be overridden by unanimous consent, although it appears such consent was not given in any case.
We hope that is helpful.
Can I insist on the original record?
Q: I have for many years inspected and made copies of original documents after recordation at the County Recorder's Office. This is part of my business. Now the county has cut off my access to these original papers, saying they are not public records. The county is now selling record copies on CD for about $500 per month. Their copies lose much information of interest to me (for example, taped on notary statements, white-out alterations, blood stains, etc. - - I've seen it). I believe since the county USES the original documents and RETAINS them for a time that they should be PUBLIC RECORDS while in government custody. Do I have any legal options?
A: It is not clear on what basis the recorder's office is claiming that the documents that are being recorded are not public records. If the county is selling collections of the recorded documents to the public, then it is clearly retaining copies of the recorded documents. Perhaps the recorder's office is allowing you access to copies of the documents but not to the original documents?
The Public Records Act provides that "[e]xcept with respect to public records exempt from disclosure by express provisions of law, each state or local agency, upon a request for a copy of records that reasonably describes an identifiable record or records, shall make the records promptly available to any person upon payment of fees covering direct costs of duplication, or a statutory fee if applicable. "Upon request, an exact copy shall be provided unless impracticable to do so." Cal. Gov't. Code Section 6253(b) (emphasis added).
If there is information in the original document that is not in the copy, then it can certainly be argued that the copy is not an "exact copy." You might have an argument that you are entitled to access original documents to the extent that you can establish that there is information in the originals that is not in the copies (as you describe). We are not aware, however, of any particular authority construing the Public Records Act with respect to copies versus original documents.
Best of luck to you in your efforts.
Access to transcripts of 911 calls
Q: I was involved in a hit and run accident in May of last year. I have
requested transcript of the call to the CHP officer that came from the
Los Angeles County 911 service and dispatched the CHP officer to the accident
location. I have requested this document through the L.A City Arson Inv.
Sec. Cust. of Records. They said that they can't release the call records
unless the District Attorney approves it and that he may not respond.
He has not responded. How can I obtain this record? Thank you
A: Under the California Public Records Act, state and local agencies are generally required to respond to a request for public records within 10 days of the receipt of the request. If you have not already done so, you should probably submit a written request for the records you seek. It's probably best to direct this request to the police agencie(s) that you believe have copies of this tape. A sample request letter can be found on the CFAC web site. A link to that page is pasted below.
http://www.cfac.org/templates/cpraletter.html
The Public Records Act affirmatively requires police agencies to provide the public with "the substance" of "all requests for assistance," including all of the "factual circumstances surrounding the incident." Government Code section 6254(f)(2). Often, the best way for a department to comply with this statutory obligation is to release the 911 tape, and you might want to point this out in your written request.
Good luck.
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MORE FIRST AMENDMENT AND OPEN GOVERNMENT NEWS
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Washington
Post:
A trying time for the media at Jackson trial. City of Santa Barbara levies
$7,500/day "media fees" to defray costs of media circus. Press
protests.
The
Argus:
Port commissioners hold meeting, violate Brown Act. President says, 'What
are you going to do? Arrest us?,' after being confronted about illegal
gathering.
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EDITORIAL
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San Francisco
Bay Guardian:
Budget cuts for San Francisco's sunshine board are pound foolish.
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