First Amendment and open government news

Vol. 15, No. 4, February 8, 2005

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COMMENTARY
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THE ULTIMATE SECRET SOCIETY: CALIFORNIA'S JUDICIARY.
BUT PROP 59 WILL OPEN THE DOOR ON THE STATE COURT SYSTEM.

By Peter Scheer

If one were to rank state government institutions on the basis of their "transparency" - how open they are to public scrutiny of their decisions - the court system would have to be at the bottom of the list, down near the Franchise Tax Board. (On second thought, that may be unfair to the Tax Board).

The California judiciary is the ultimate secret society. It is categorically exempt from the Public Records Act and open meeting laws that apply to all other government agencies and bodies, even the state legislature. Although in theory the first amendment affords a right of access to court records and hearings, in reality trial court judges routinely grant requests to seal dockets and close pretrial proceedings, with little regard for the public's countervailing "right to know."

The latest example of the judiciary's obsession with secrecy is a February 17 official gathering -- behind closed doors -- of more than 100 judges, court administrators, State Bar officials and legislators to consider an overhaul of California's judicial system. On the agenda, according to The Recorder, a legal newspaper in San Francisco, are changes to everything from the duration of judges' terms to how local courts are funded.

Also meeting in secrecy is a Supreme Court advisory committee charged with reviewing the court's controversial policy of "publishing" only selected decisions of the courts of appeal -- and forbidding litigants to cite or discuss the many more opinions that are officially "unpublished." This committee's work is thought to be so sensitive, and the danger of public access believed to be so grave, that even the date and location of its meetings are strictly confidential.

How absurd. One could more easily gain access to a meeting of the National Security Council than the state Supreme Court committee on opinion publishing.

To be sure, judicial deliberations can't be open to the public in the same way and to the same degree as the actions of a city council. Judges must confer in secrecy when discussing how to rule in a particular legal case. Even if they face election periodically, judges are not supposed to be politically accountable in the way city council members are politically accountable. Due process and political influence don't mix.

But when courts are acting legislatively and administratively, instead of judicially -- when they are engaged in making policy and implementing it -- their actions should be open to the public. There's nothing about a bunch of judges sitting around discussing issues like judicial compensation or court budgets that requires secrecy. When judges act like legislators or bureaucrats, they should be subject to the same access requirements that apply to legislators and bureaucrats.

One suspects that secrecy remains the rule for the judiciary only because that's the way it has always been -- and it's always been that way only because judges prefer secrecy, not because there is, or ever was, any good reason for it. And while judges' personal preference for secrecy has, in the past, been all the justification needed to maintain it, that is no longer the case.

The law has changed (a fact to which the judiciary still seems blissfully unaware). Proposition 59, passed by over 80 per cent of the voters in November 2004, creates a constitutional presumption of openness that applies to the judiciary no less than other agencies. The new constitutional amendment declares, without qualification, that "meetings of public bodies and writings of public officials and agencies shall be open to public scrutiny. " It also provides that any legal "authority . . . shall be broadly construed if it furthers the people's right of access, and narrowly construed if it limits the right of access."

Prop 59 clearly opens the door on our judicial secret society. How far open is, to be sure, unclear; the judiciary remains exempt under Prop 59 from state access statutes (the Bagley-Keene Act and California Public Records Act), with their highly developed and quite specific measures of required openness. The access requirement of Prop 59 is more flexible and presumably less intrusive than the access statutes (otherwise, why preserve the statutory exemptions?).

Prop 59's "right of access" will have to be interpreted by the courts. Yes, the courts will have the last word in construing the scope of an access right that the courts themselves will resist. But the courts -- which is to say, the California Supreme Court in this instance -- will ultimately do the right thing. The Supreme Court, like Governor Schwarzenegger in disclosing his calendars, will acknowledge that the voters, in enacting Prop 59, meant to make a change.

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FIRST AMENDMENT AND OPEN GOVERNMENT NEWS
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Sacramento Bee:
Newspaper wins bid for names of county employees who retire, receive pension benefits, and are then rehired on consulting basis

CFAC:
Court orders release of child welfare records on 2 children who had died of abuse

Daily Business Review:
Freedom of Information Comes at a $372,799 Cost.
Justice Department presents FOI requester with wopper estimate for records' search

San Francisco Chronicle:
Critics blast governor's reorganization plan as a threat to public access and government accountability

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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.

Police Background Investigation

Q: I was told I failed a background investigation for a volunteer job at my local police department. Later I was given inside information that, only days before, the PD had decided they didn't want people with disabilities volunteering, because they felt it would involve too much liability. I believe I "failed the background investigation" because it was easier than telling me that they didn't want disabled people. They will not give me any information on the background investigation, saying that they have to protect the confidentiality of the people who spoke against me. I believe that no one spoke against me and they are hiding behind confidentiality to deny me information. Is there any way I can force them to show me papers on the investigation, even if only to prove that they did do one and I did fail it?

A: It sounds like the police department is relying (at least implicitly) on Section 6255 of the California Public Records Act ("PRA"), which provides that an agency can withhold records by demonstrating "that on the facts of the particular case the public interest served by not making the public record clearly outweighs the public interest served by disclosure of the record." Cal. Govt. Code Section 6255.

In a case called Johnson v. Winter, an applicant for special deputy status sued for access to his application file after he was denied the special status. 127 Cal.App.3d 435 (Cal. Ct. App. 1982). The sheriff's department in that case argued that the public's interest in maintaining the confidentiality of background investigations outweighed the public's interest in disclosing such application information. The court agreed that "to the extent the file contains matters obtained with the understanding implicit or explicit that such matters would be kept confidential," the records need not be disclosed. Id. at 439. But the court insisted that the file be examined for information that is not confidential and that such information must be disclosed.

The court noted that the PRA had been interpreted to require that "where nonexempt materials are not inextricably intertwined with exempt materials and are reasonably segregable, segregation and disclosure of the nonexempt materials are required to satisfy the objectives of the act." Id. at 440. Moreover, the PRA specifically provides that "[a]ny reasonable segregable portion of a record shall be available for inspection by any person requesting the record after deletion of the portions that are exempted by law." Cal. Govt. Code Section 6253(a).

In other words, the police department may be entitled to withhold information related to its background investigation of you to the extent that such information was obtained under a promise of confidentiality. But to the extent that the confidential information (e.g., the identity of the person interviewed) can be redacted or otherwise removed from your application file/background investigation records, you may be entitled to the remaining information.

You might find the information on the CFAC web site about making PRA requests useful. In particular, there is a model PRA request letter here. If you are interested in retaining the services of an attorney to follow up on your request, you might try the CFAC Lawyer Assistance Request Service here.

You might also want to consider contacting an organization such as Disability Rights Advocates (http://www.dralegal.org/), which may be able to offer information or advice with respect to the possible disability discrimination aspect of this issue.

Good luck to you in your efforts.

My Child Welfare Records from 30 years ago

Q: I was a resident of California when I became a reluctant but active participant in child welfare. I was placed in a foster home where I was abused, in a multitude of ways. I am writing my autobiography and have a story to tell, but I can't get anyone there to help me procure those records.

I want access to the records between 1975-1978, or there abouts. I am now 45.
Do I have a way to get them?

Please respond and let me know what kind of lawyer I need for something like that, I live in Ohio now.

A: You may be able to obtain copies of government records concerning your childcare by making a request under the California Public Records Act ("PRA"). Under the PRA, records maintained by government agencies are presumptively open to the public, unless a specific exemption authorizes the agency to withhold them. We are not aware of a particular exemption that would authorize the California Department of Social Services to withhold records relating to your time in foster care.

In fact, California Family Code Section 7805 specifies that "a petition filed in a proceeding under [the Freedom from Parental Custody part of the Family Code], or a report of the probation officer or county department designated by the board of supervisors to administer the public social services program filed in a proceeding under this part, may be inspected only by the following persons: . . . (2) the child who is the subject of the proceeding . . .." Depending on the nature of the particular records you are interested in, this section may specifically provide for your access.

We hope this information is useful to you. Best of luck in your efforts.

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MORE FIRST AMENDMENT AND OPEN GOVERNMENT NEWS
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The Press-Enterprise:
Riverside supervisors are weighing measures to curb nongermane comments by residents at meetings.

The Recorder:
Court Leaders Push Ahead -- behind closed doors -- with Plan to Overhaul System

San Jose Mercury-News:
Council settles suit over e-mails

Associated Press:
First Amendment No Big Deal, Students Say

Milpitas Post:
Council mulls revised sunshine ordinance for public's business
Requires recording of closed-door meetings, loosens regulations on lobbyists

San Diego Daily Transcript:
San Diego committee looks into possible Brown Act violations

Hattiesburg American:
Fire information can be released.
Mississippi AG's opinion says federal privacy law doesn't cover city information

Associated Press:
Legal Center Established for Open-Source Projects and Developers

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CFAC IN THE NEWS
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Marin Independent Journal:
Profile of CFAC: Opening the state's books

The Press-Enterprise
Watchdog: Hiring violates Brown Act

Pasadena Star-News:
Free speech comes barbed at City Council meetings