Vol. 14, No. 21, June 14, 2004

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CFAC has moved!

The California First Amendment Coalition has moved from Sacramento to a new office in San Rafael. The new address is:

California First Amendment Coalition
534 4th Street, Suite B
San Rafael, CA 94901

The move reflects no change in CFAC policies or priorities--other than to reduce the wear and tear of a long commute on Executive Director Peter Scheer, who lives in Marin County. CFAC will be just as active in Sacramento as in the past. If you're in the Bay Area, please pay us a visit at CFAC's new office. Please also note our new phone number (415) 460-5060 and fax number (415) 460-5155.

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Mark the dates

CFAC's Annual Assembly is on October 8 & 9 this year, on the campus of UC Berkeley. The topic:

Resisting Government Secrecy in a Time of Terrorism

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Oakland restricts access to employee salaries

(OAKLAND, Contra Costa Times 6/12/04) Officials have restricted public access to salary information for the city's approximately 4,000 employees.

The City Council decided in a recent closed session to deny two public records requests -- one by the Oakland Tribune and the other by local journalist Sanjiv Handa -- for the names and salaries of all city employees. Two unions threatened to sue the city if officials released the names, said Karen Boyd, spokeswoman for the City Attorney's Office.

While city officials are concerned that public access to salaries may invade the privacy of city employees, First Amendment advocates say the public has a basic right to know precisely how the city spends tax money. (See story)

Judge rules Oxnard City Council broke open-meeting law when it discussed a theater project in closed sessions

(Los Angeles Times 6/12/04) Following a decade of investigations and accusations, a Ventura County judge issued a tentative ruling Friday in which he found that the Oxnard City Council repeatedly violated a state open-meeting law during negotiations for a new $15-million downtown theater development.

Superior Court Judge Vincent J. O'Neill Jr. found that the city and its Community Development Commission failed to post adequate public agendas for closed-door meetings, and as a result officials illegally discussed project details in secret.

The theater development, now under construction, was approved by the city in 2002. Last year, retired real estate agent Martin Jones sued the city, seeking to nullify the project and have a judge order the council and commission to tape-record all closed-door sessions pertaining to future downtown development.

While O'Neill found in Jones' favor - and ordered the city to start following the law - he declined to stop the theater project or to order that future closed meetings of the council be taped. (See story)

Hotline questions and answers

Here are three legal questions that were posed this week to CFAC's Hotline consultation service. The first concerns a college district agency that holds an open meeting in order to ratify actions previously taken in secret, in violation of state law.

The second Hotline Q & A concerns the availability to the media and public of information in police "incident" reports. The third Q & A deals with the issue of when a meeting of persons from different agencies constitutes a "meeting" under the Brown Act.

The answers are supplied by CFAC's lawyers in the San Francisco office of Piper & Rudnick, a national law firm.

Closed Meetings

QUESTION: "A local College district participated in an illegal closed session last month. On May 13, 2004, I served them with a cure and correct letter to rescind all illegal actions take at said Board meeting.

Their illegal actions were as follows:
1. Took action on a non-agenda items. Hiring two (2) Vice Chancellors. Compensations for the two (2) positions.
2. Salary compensation and re-written job title for a Vice Chancellor to an Executive Vice Chancellor. Salary Compensation set behind closed doors.
3. Hiring an Interim Chancellor and setting his compensation behind closed doors
4 Doing all this with no input or discussion from the public.
In response to my "Cure and Correct Letter" the district is again going into closed session to take action on these same matters, only they are now on the agenda.

They have not formally responded to my letter, nor is there an agenda item to discuss the salary compensation for those positions.

Is it not required that the Board formally rescind their prior illegal action before they can again take up the same action?"

ANSWER: It seems as though the District plans essentially to reconsider the hiring decision taken at the prior (unnoticed) session.

It is not necessarily required that this be done in two separate votes (i.e. one to "rescind" and one to "ratify" the previous decision), or, if taken in two separate votes, that it be done on two separate days. You haven't provided the exact words that appear in the new agenda, so its hard to tell, but the District may well be able to argue that the notice "substantially complies" with the notice requirement. See Government Code 54960.1.

The reason that salary is not on the agenda for the closed session may well be that the District, looking at the matter more closely, realized that Government Code section 54957, while allowing closed sessions to make decisions on the "appointment" or "employent" of a public employee, does not specify that compensation decisions can be made in such a closed session.

Incident reports

QUESTION: "After a law enforcement action recently involving a stolen pickup truck and wild and threatening behavior that resulted in a violent intervention by Deputies, (a bystander was seriously injured) I asked at the local marina for information. The marina is owned and operated by the County. I was present when an employee who was a witness to the events was told by his superior to not speak with the press.

I then asked to see their written incident report and logbook. I was refused and told to ask their superiors downtown. When I asked the director of the agency operating the marina I was told that all that material had been turned over to the County Sheriff and I would not be allowed access to anything relating to the days surrounding the incident. I was to speak with the Sheriff.

I complained to the County Supervisor for this area. He re-contacted me and said that the county counsel had decided that I was to not have access through the agency. He did say they were reexamining their decision since the logbook and incidents were traditionally accessible.

My opinion is that law enforcement had every right to seize records. But neither law enforcement nor the agency has the ability to close agency records to media inspection of copies of the relevant records."

ANSWER: The short answer is that covered agencies -- including the agency gegulating the marina, when acting in its law enforcement capacity -- are no longer required to give out incident reports relating to an investigation.

They often provide the reports, however, because they are still required to provide you with certain specific information contained in such reports (see below). In your situation, because it sounds as if the records are now part of an investigative file, the sec. 6254 exemption applies regardless of which agency you are dealing with. (Read the full answer)

When is an agency meeting a "meeting" to which the Brown Act's requirements apply?

QUESTION: "Two or morfe trustees of a hospital district meet weekly with the county administrator and one or more county supervisors. These meetings are closed meetings; they aren't publicly announced and no agenda is posted. This is not a standing committee, but an informal meeting of Medical Center representatives and county representatives.

We suspect that during these meetings, the county is directing the priorities of the hospital Trustees. Trustees have told us repeatedly that the county is putting pressure on them to move forward with layoffs.

These two entities have different fiduciary responsibilities ­ one towards the Medical Center and one towards the county. Might these meetings also violate the Brown Act?"

ANSWER: The Brown Act defines "meeting" as "any congregation of a majority of the members of a legislative body at the same time and place to hear, discuss, or deliberate upon any item that is within the subject matter jurisdiction of the legislative body or the local agency to which it pertains." Cal. Govt. Code § 54952.2. It also specifies that "[n]othing in this section shall impose the requirements of this chapter upon . . . [i]ndividual contacts or conversations between a member of a legislative body and any
other person." Cal. Govt. Code § 54952.2(c)(1).

It sounds like the meetings that you refer to below do not involve a congregation of a majority of the members of the Board. While "serial meetings" or other attempts to develop a collective concurrence as to action to be taken on an item without holding a public meeting are not allowed under the Brown Act (Govt. Code § 54952.2(b)), it doesn't sound from the information below like that is what is going on in this situation.

Ohio Open Records audit shows compliance is spotty at best

(Cleveland Plain Dealer 6/13/04) Employees in city halls, police stations and school boards across Ohio followed state law only half the time when asked for public documents, a recent open-records test found.

Ohio's records law requires timely access to public records, without undue hassle. But in late April, journalists often faced possessive public officials who wanted to know who they were and why they needed the information. The journalists, collaborating for a statewide survey, did not identify themselves unless asked.

In 53 percent of cases, record seekers got what they wanted the same day or the next.

The rest of the time, they were denied records or received them only after identifying themselves, submitting a written request or facing other conditions that are not required by state law, the survey found.

The results were worse in a companion survey of 20 communities in Greater Cleveland, done by The Plain Dealer and the Akron Beacon Journal.

Record requests locally were granted hassle-free only a third of the time.

Those seeking documents found suspicion and even hostility. (See story)

U.S. Supreme Court rejects 15-year-old California libel case; Court declines to decide whether business executive is a "public figure"

(Reporters' Committee for Freedom of the Press 6/3/04) The U.S. Supreme Court on Tuesday rejected the appeal of a California newspaper that had asked it to decide whether a Beverly Hills business executive is a public figure.

Beverly Hills businessman Leonard M. Ross filed the action in 1989, accusing the Santa Barbara News-Press of libeling him in articles that falsely linked him to a federal investigation for defrauding investors.

Ross, who is also an attorney, was a major stockholder in the former Santa Barbara Savings and Loan, according to The Associated Press. Both the trial court and the California Court of Appeal held that Ross is not a public figure, which means he had a lesser burden of proof to satisfy his libel claim.

To prevail on a libel claim against a public figure, a plaintiff must meet the higher standard of actual malice, defined as knowledge of falsity or reckless disregard for the truth. For a libel suit regarding a private person, a plaintiff must show at least negligence.

The News-Press argued to the U.S. Supreme Court in its petition that Ross is a public figure and that appeals courts should independently review evidence of falsity in libel cases. The Court of Appeal refused to review additional evidence offered by the newspaper and ruled on the facts established at the trial stage. (See story)

DC Bureau Chiefs vow to resist government efforts to cut off access to records

(NEW YORK, Editor & Publisher 6/3/04): Press efforts to thwart government secrecy are moving forward on two fronts as Washington bureau chiefs unite to more aggressively cover federal government attempts to hide information and the head of Associated Press offers plans for a new open government lobbying center in Washington, D.C.

"We wanted to raise awareness that this is a growing problem for us," says Andy Alexander, D.C. bureau chief for Cox Newspapers and new chair of the American Society of Newspaper Editors' FOI Committee, who is leading the bureau chiefs' effort. "We have a special obligation to be more aware of threats to public information."

Alexander's comments followed his participation in a May 3 luncheon at the National Press Club that included speakers from the First Amendment Center, Reporters Committee for Freedom of the Press, and the new Coalition of Journalists for Open Government. Nineteen Washington bureau chiefs attended and agreed to boost their efforts to cover more issues related to government secrecy. (See story)

If you have suggestions for items to be included in CFAC's weekly Flash, please email them to Peter Scheer