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In case you didn't see the news last week...

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
Ph: (415) 460-5060
Fax: (415) 460-5155

Shhhhh. 9th Circuit Court of Appeals holds secret oral argument

If you had gone to the Ninth Circuit U.S. Court of Appeals during oral arguments last Thursday, you would have seen a proceeding you wouldn't have thought possible in the federal judiciary. Or, rather, you wouldn't have seen it at all.

The appeals court hearing in the case of In Re Grand Jury Subpoena v. United States, 04-10097, was held in a shuttered courtroom with no press or public access. Virtually the entire record in the case is under seal. And all the lawyers are gagged-forbidden by court order to talk about any aspect of the case.

According to the Recorder newspaper in San Francisco, these extraordinary secrecy measures were not occasioned by any national security concerns. Rather, the case concerns a claim of Fifth Amendment privilege over documents that have been subpoenaed by a grand jury-on the face of it, a fairly common occurrence for federal grand juries.

While grand jury proceedings themselves are secret under federal criminal rule 6e, it is highly unusual for a federal court of appeals hearing to be conducted behind closed doors. Even national security cases (excluding the special category of government requests for espionage wiretaps, presented to a special secret court) are usually conducted in the open. (Read The Recorder story)

Strike one against the government in ACLU's suit to disclose secret "No-Fly" List

In a little-noticed order last week, Judge Breyer of the U.S. District Court in San Francisco was highly critical of the federal government for its refusal to turn over documents to the ACLU in the case challenging the so-called "No Fly List"-the secret list of persons who are barred from boarding U.S commercial flights in the U.S.

Judge Breyer, on cross-motions for summary judgment, ruled that the feds had not come close to meeting their burden of justifying their claims of exemptions for the documents under the federal Freedom of Information Act. In a slap in the face to the Justice Department, the judge ordered the government lawyers to personally review all withheld documents and to certify that they believe "in good faith" that they are being properly withheld under FOIA. (Read the court's conclusion)

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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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In the Capital, no access for you and me, but the red carpet is out for the Governor's Hollywood buddies

(SACRAMENTO, Los Angeles Times 6/2/04) -- He left the movies for politics, but Arnold Schwarzenegger has hardly abandoned his Hollywood roots, giving celebrity friends and prime-time actors what, at times, seems an all-access pass to his Sacramento world.

Producers, actors and stunt performers in certain cases are getting gubernatorial courtesies and a level of entree to his administration not even some lawmakers get.

Not all of this began with Schwarzenegger, who even now has a cameo role in "Around the World in 80 Days," which opened last week in theaters nationwide. Movie money, glamour and politics proved an irresistible mix long before Richard Nixon posed with Elvis and former Gov. Jerry Brown dated Linda Ronstadt.

But during Schwarzenegger's brief time in office, film and television stars have shown up at top-level briefings and Cabinet sessions, given speeches for the administration, helped woo legislative leaders and shared private lunches with the governor. (Read the story)

Back to the Future: Pentagon seeks authority to conduct domestic intelligence ops-barred under the Privacy Act since 1974

(WASHINGTON, Congressional Quarterly 6/15/04) -- The gloves will be off for domestic military intelligence operations if a provision inserted in the Senate's 2005 intelligence authorization bill (S 2386) stays in the legislation, civil liberties experts and privacy advocates say.

The Pentagon has long had the authority to conduct intelligence within the United States to protect its military personnel or bases against an attack, according to experts. But, during the Vietnam War, a scandal broke out when it was revealed that military agents had spied on civilians as well as soldiers for their political beliefs instead of their threat to the Defense Department's security.

Following the 1970 revelations of Christopher Pyle, then a graduate student at Columbia University, that the Pentagon spied against antiwar groups in the 1960s, Congress held hearings that resulted in recommendations that the Defense Department be barred from conducting domestic intelligence. But no new laws were created specifically prohibiting the practice.

"The Pentagon gave [Congress] strong assurances they would not return to domestic spying on civilian political activity," Pyle, now a professor at Mount Holyoke College, said by telephone Tuesday.

In 1974, the Privacy Act (PL 93-579) was signed into law, requiring representatives from most government agencies - including the Defense Department - to identify themselves when they collect information on U.S. citizens and legal resident aliens, and to identify the purpose of their information collection.

But language inserted in the Senate version of the intelligence authorization bill would exempt the Defense Department from those provisions, opening the door to an expanded authority to surreptitiously collect information on U.S. residents. (Read the story)

HOTLINE Queries

This week's HOTLINE queries include questions about access to records of "Confidential Marriages" (yes, the law provides for secret marriages); the lawfulness of school policies forcing photographers and news organizations to be "credentialed;" and the privacy (or lack of it) of dog license records under the Public Records Act.

Confidential Marriages

QUESTION: Who can access California's public records on confidential marriages?

ANSWER: California Family Code § 511 provides that the county clerk "shall maintain confidential marriage certificates filed pursuant to Section 506 [providing for issuance of confidential marriage licenses] as permanent records which shall not be open to public inspection except upon order of the court issued upon a showing of good cause" but that the county clerk "may conduct a search for a confidential marriage certificate for the purpose of confirming the existence of a marriage, but the date of the marriage and any other information contained in the certificate shall not be disclosed except upon order of the court." Cal. Fam. Code § 511(a), (c).

Accordingly, records related to confidential marriages would appear to be exempt from disclosure under the California Public Records Act, Cal. Govt. Code § 6254(k) (exempting records, the disclosure of which is otherwise prohibited by federal or state law).

In other words, any member of the public would appear to be able to request a search to confirm the existence of a confidential marriage, but any other information contained in the marriage certificate will not be disclosed without a court order. (The parties who are married should have access to the records, however. They should receive a copy of the confidential marriage certificate upon performance of the marriage ceremony and can request a certified copy of the certificate by appearing with proper identification at the county clerk's office where the certificate is filed. Cal. Fam. Code § 509(a)(3).)

"Credentialing" newspapers

QUESTION: Can a government body or organization prohibit a news gathering entity (website or newspaper or both) from publishing pictures of a high school athletic event? Can it prohibit that news gathering entity from selling those photos? Can it sell the exclusive photography rights of a high school athletic event to a photography company and prohibit the photo taking of all newspapers and media companies? This includes action shots, not just portrait photography. Also, the newspaper/website sells its own photographs taken by its own photographers. It does not sell or print the photos of the photo company that has the exclusive rights.

ANSWER: Numerous leagues and teams have attempted to impose such restrictions on photo journalism credentials. For private athletic leagues (and private concert promoters, for that matter), the short answer is that they can impose whatever restrictions they want, unless the press gets together and pushes back. The threat of a media boycott forced the NHL and the Anaheim Mighty Ducks to back off similar restrictions a couple of years ago, and other teams have also agreed to modify their terms in the face of threatened media photo black-out of their events.

The analysis may be different for public high school events, however, as the restrictions may be subject to First Amendment scrutiny. This is a complicated and, on this level, an untested area of the law.

What has worked for some newspapers is simply not to sign the form that imposes the restrictions. If the organization nonetheless issues the credential, you haven't agreed to their terms. So, if you didn't agree to such terms before covering the event, and the organization attempts to impose these restrictions after the fact, the restrictions are not enforceable (though the organization may try to deny you a credential in the future).

If you do (or did) sign, you are contractually bound not to do what the organization says you can't do unless the restrictions the contract imposes are unconstitutional. The constitutional status of these restrictions is not clear, though, and it will probably take litigation to sort that out.

Dog Licenses

QUESTION: Is there any case law explaining what "private information" is exempt from the Public Records Act?

I'm currently trying to obtain copies of dog licenses issued by San Jose, but have been told verbally that the city attorney's office believes names of the people who obtained the license, as well as address and phone number, are exempt under privacy laws. True?

ANSWER: The right to privacy is incorporated into the Public Records Act ("PRA") in at least three ways: (1) Through Government Code section 6254(c), which exempts "personnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy"; (2) through the California Consitutional right to privacy (which is, in turn, incorporated into the PRA through Government Code section 6254(k), which exempts records the disclosure of which is exempted or prohibited pursuant to state or federal law, and (3) through Gov't Code section 6255, the so-called "catchall" exemption.

There are numerous California cases and attorney general opinions that have construed these exemptions. In general, this authority can be summarized as follows:

1. For a privacy exemption to apply, there must be a reasonable expection of privacy, under the circumstances, in the records/information at issue

2. An asserted right to privacy must be balanced against the public interest in the disclosure of the information at issue, with the burden of proof on the proponent of nondisclosure.

3. Where the information at issue helps to explain the government's conduct of its business, that weighs in favor of disclosure. (See the full answer)

So Tired, Tired of Waiting . . .

Finally this week, Tom Newton, general counsel of CNPA and a friend of CFAC, is interested in hearing from Public Records Act requesters about the amount of time agencies take to answer requests. CNPA is opposing legislation that would extend the response time. If you've ever had to wait substantially longer than the statutorily-prescribed 10 days to get a response from an agency, Tom would like to hear about it. Send him an email to: Tom@cnpa.org.

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