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CFAC Joins ACLU and EPIC Seeking Limits on FBI
The California First Amendment Coalition signed on a letter to
Congress urging hearings and limitations to the Bush administration's proposal to loosen
the guidelines that restrict the surveillance of religious and political organizations in
the United States.
"This proposal raises matters of Constitutional authority that requires immediate
Congressional attention. We do not believe that the Attorney General has the legal
authority to pursue domestic spying," the letter to congressional leaders states.
"We urge you to conduct oversite hearings on this proposal."
As of today, the letter has been signed by CFAC and representatives of 19 other
organizations, including Electronic Privacy Information Center, American Civil Liberties
Union, Asian American Legal Defense and Education Fund, Arab American Institute,
American-Arab Anti-Discrimination Committee (ADC), Association of American Physicians
& Surgeons, Center for Democracy and Technology, Center for Digital Democracy, Center
for National Security Studies, Christian Defense Coalition, Council on American-Islamic
Relations, Electronic Frontier Foundation, Federation of American Scientists, Friends
Committee on National Legislation, The Independent Institute, The Multiracial Activist and
Privacy Rights Clearinghouse.
"We are particularly concerned about elements of the guidelines that appear to
give the FBI the authority to search through electronic databases without satisfying any
legal standard or requiring any judicial review," the letter states. "Such an
approach to police authority in the United States is directly contrary to the First and
Fourth Amendment and the system of checks and balances established by our form of
government."
For a complete text of the letter, click HERE.
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Farr Award to Reporter who Personally went to Court
A Sacramento Bee reporter who personally went to court to obtain
otherwise confidential juvenile records then wrote a series of articles that helped
improve her community's child protection system is the 2001 Bill Farr Award recipient.
Mareva Brown will receive the prestigious award, given by the
California First Amendment Coalition and the California Society of Newspaper Editors to an
individual who has performed exemplary work in the field of open government.
The award is given in honor of former Los Angeles Herald Examiner
Reporter Bill Farr, who went to jail in 1971 after citing the shield law and refusing to
reveal sources of a leak in the infamous Charles Manson Case.
Brown's four part series, "Broken Lives," documented the
plight of children caught in the child protection system after being neglected, abused or
molested in Sacramento, where one in 56 children are in foster care-the highest county
rate in the state.
The power of her series came from the details of cases previously
hidden by confidentiality statutes. Brown went to court herself and argued that the value
to the public of releasing the files far outweighed the need to keep the information
secret. She agreed not to disclose the identities of the children, and the court agreed to
release the information and grant her access to otherwise closed court proceedings.
As a result, she was able to bring readers the tragic stories of
dysfunctional families caught in a dysfunctional system-stories of youngsters torn between
families, of a young girl bounced from foster home to foster home, of a baby dead in its
mother's drug-soaked womb.
Reaction to the series was overwhelming and swift. A state
assemblyman distributed the series to every lawmaker in an effort to bolster his attempts
at reform; the local grand jury requested Sacramento County to reconsider its child
protection policies; and several judges throughout the state have cited the series in
their attempts to lift confidentiality requirements in dependency court.
"Brown's writing came to life through her detailed reporting on
a system generally veiled in secrecy," said one of the contest judges. "First
she fought hard to obtain information during several court appearances, then she spent two
years documenting the system's effect on these youngsters with 'broken lives.' The
resulting stories were stunning and sad, but they led to systemic changes that have no
doubt already saved lives."
The award was presented to Brown Friday at the annual CSNE
convention in Anaheim.
Last year, the award was presented to The Stockton Record for a
series of articles documenting the lack of compliance with the California Public Records
Act. In 2000, the award went to Tim Crews, publisher of the Sacramento Valley Mirror who
served time in jail for refusing to identify the source of information in news stories
about a California Highway patrolman who stole a confiscated weapon. Crews said at the
time that if he named the sources it would "make a complete mockery" of a state
law that gives reporters the right to shield confidential sources.
Brown is a senior writer for The Sacramento Bee. She joined the
staff in 1992 as a police reporter and has covered several beats since then.
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Beacons to School Board Activist, Reporter, Newspaper
The California First Amendment Coalition honored two individuals and
a newspaper with CFAC Beacon Awards for outstanding work in the field of keeping
government open to the public.
Beacon Awards, presented last week during the annual convention of
California newspaper editors, went to retired Bonita Unified School District Board Member
Bob Olander; Claremont Courier reporter Gary Scott, and his newspaper.
The awards are given annually to individuals or organizations whose
work results in greater government openness.
Olander was honored as an outstanding advocate of open government
and the public's right to know. He retired in December after two terms on the Board of the
Bonita Unified School District, an agency plagued with administrative and financial
problems, personality conflicts among Board members, and almost constant allegations of
illegal secrecy.
Throughout his tenure, Olander was continually hounded and ridiculed
by fellow trustees and district administrators for his stance aggressively defending the
people's right to be involved in the decision-making of its local government.
Olander's crusade began in earnest in the summer of 1996, after a
Sunday closed session where then-superintendent Ron Raya was placed on a paid leave of
absence. Shortly, Olander began to pressure the Board majority to release information on
the reasons for the discipline.
Not long after this, the Board commissioned an audit into possible
financial irregularities. When the report was finished, it was presented to the Board in a
closed session. Recognizing the possible political fallout, the Board majority moved to
"sanitize" the report by suggesting changes to be made before its release to the
public, which they scheduled to be months later. But when Olander took the audit home,
claiming it was a disclosable public record, the majority went ballistic, holding
unnoticed, secret meetings with the interim-superintendent and making conference calls to
Olander demanding the audit be returned. Olander held firm and, after he displayed the
document to the public at an open meeting, the audit was released, blemishes and all.
And from that point on, Olander was made to "pay" by a
Board majority out to punish him at every meeting.
In the summer of 1997, Olander filed for reelection, only to
announce a few weeks later he was withdrawing from the school board race. He accused
fellow board members and the superintendent of conducting business under a veil of
secrecy, which he would no longer continue to condone. By that time, however, it was too
late to remove Olander's name from the ballot. Yet, despite the fact that Olander did not
campaign or seek support, voters proved they liked his stance, because he was easily
reelected, and agreed to stay in office.
Without Olander's willingness to step forward to protect the
people's right to know, even in the face of cruel treatment and extraordinary political
pressure, administrators and Board members would have been able to hide the District's
dirty laundry and the public would never have known the gross negligence and illegal
activities of its elected and appointed officials.
CFAC also awarded Beacon Awards to Claremont Courier reporter Gary
Scott and his newspaper for a body of work that has uncovered the secret dealings of local
government in eastern Los Angeles County.
In late 1998, Scott discovered a secret settlement reached by the
California Joint Powers Insurance Authority representing the City of Claremont in a
federal civil rights case.
For six months, Scott's diligent pursuit of the truth revealed that
the city had secretly paid for what amounted to fabrications by the police.
As a direct result of Scott's reporting, the insurance authority
fired its attorney from any more Claremont cases. His stories further revealed that the
City Council had been secretly briefed about the settlement and that city officials had
lied when they said they had never seen a copy of the settlement.
Last September, Scott again sought to uncover the dealings of local
government-this time by the board of the Three Valleys Municipal Water District in east
Los Angeles County.
Despite the district's effort to hide the facts, Scott uncovered
sexual harassment allegations that were leveled against the water district's general
manager by three women, including his own executive assistant.
The story, however, did not end there. After three public records
lawsuits, the district was forced to release more than 600 pages of records documenting
mismanagement, lax safety procedures, employee dissension, violations of employee privacy
and poor oversight by the water district board.
Finally, Scott was the first reporter to discover and report on a
secret, serial meeting of four Claremont City Council members in the evaluation of
planning commission candidates.
Accepting the award, Scott gave most of the credit to his
newspaper's publisher, Martin Weinberger, who is a longtime CFAC supporter and a member of
CFAC's board of directors. "You can't do this kind of work without the support of
your newspaper and it's publisher," Scott said. "I'd like to thank my newspaper
for giving me the opportunity to pursue these stories."
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Call for Presentations for OpenGov02
The California First Amendment Coalition (CFAC) invites you to
submit a proposal to make a presentation at OpenGov02, a convergence of journalists,
attorneys, civic activists and government leaders exploring current open government issues
in California and beyond. We are looking for enlightening, thought-provoking presentations
and discussions about the law and practical experiences with access to government meetings
and information.
OpenGov02, the conference for people passionate about government
transparency, will be held Oct. 17-19 at San Jose State University. Selected presenters
will receive free conference registration and recognition in the conference program and
marketing materials. You will share your knowledge and experiences with conference
participants and will be expected to participate in question-and-answer sessions at the
end of your presentations.
There will be three types of presentations at the conference:
-- Roundtable Discussions
One-hour sessions that provide an opportunity for an intimate discussion for up to 15
participants on key topics.
-- Concurrent Sessions
Two-hour presentations featuring individuals or a panel of experts discussing a single
topic.
-- Symposiums
Three-hour intensive, in-depth workshops covering specialized areas of open government law
or journalism practices.
You can find a list of suggested topics at ../opengov02/presentations.html.
They fall into six topic groupings:
-- Access to Government
-- Civil Liberties
-- Access to Law Enforcement and the Courts
-- How to Demand and Improve Government Transparency
-- On Campus: Press Freedoms and Press Access
Confirmed keynote speakers at OpenGov02 include Chief Justice of
California Ronald George, Los Angeles Times Executive Editor
John Carroll, and California Voter Foundation President Kim Alexander. There will also be
a series of debates during the conference, including one between CFAC General Counsel
Terry Francke and Palo Alto City Attorney Ariel Callone, who is also chair of the legal
committee of the California League of Municipalities.
For more information about the conference, or to register, go to ../opengov02/opengov02.html.
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SCA 7's First Committee Hearing
Delayed (4/22/02)
The first hearing for Senate Constitutional Amendment 7 (SCA 7), originally set for tomorrow, April 23 in
the Senate Governmental Organization Committee, has been postponed to a date not yet
announced.
Although the measure's principal author, Senate President pro Tempore John Burton
(D-San Francisco) did not give a reason for the delay, his staff apparently wants to
resolve several concerns from those seeking certain amendments and to deal with objections
from others at being included.
The League of California Cities, the California State Association of Counties and
various peace officer organizations are known to be seeking amendments to avoid what they
see as undesirable effects of the law, which would declare a constitutional right of
citizens to attend and be heard in meetings of government bodies and to inspect and obtain
copies of public records.
In addition, although it has taken no public stand yet on the issue, the entire
judicial branch apparently wants to be excluded from the reach of SCA 7. Under other laws, court proceedings and
records are already presumed to be accessible to the public. But SCA 7 would mandate access to a variety of other
judicial branch bodies and their records, including the Judicial Council, the Commission
on Judicial Appointments, the Commission on Judicial Performance and the State Bar Board
of Governors.
Many of these groups' meetings are in fact already public, but not as a matter of state
constitutional law. SCA 7 would also for the
first time presume access to a bodies providing local judicial administration, including
superior court governing bodies, and to records of the state court system's central
housekeeping agency, the San Francisco-based Administrative Office of the Courts.
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CFAC's McKee Taking District to Court (4/22/02)
A school board's use of a closed session to discuss "potential" litigation
that might be triggered by another agency's policy is among the practices challenged in a
Brown Act lawsuit by Richard McKee.
On Friday, April 19 McKee and his attorney, Dennis Winston, were scheduled to appear in
Orange County Superior Court to ask Judge Jonathan Cannon to order the Orange Unified
School District to correct those practices, rescind an action taken and tape record its
closed sessions for three years.
At the last minute Cannon recused himself for as yet undisclosed reasons and the matter
was taken off calendar for reassignment.
The lawsuit concerns what McKee challenges as an inaccurate and misleading agenda
listing for a real property closed session, and several prematurely held closed sessions
dealing with "potential" litigation on facts and circumstances that had not yet
developed.
The agenda for the August 27, 2001 closed session of the board described it as dealing
with "Barham Ranch," an undeveloped 526-acre plot owned by the district that
bordered on a county park. The other negotiating party was listed as Orange County. This
left the impression, McKee says, that the district was bargaining to sell all or part of
the ranch to the county.
But the real topic of the closed session, as the superintendent announced immediately
thereafter, was quite the opposite: to discuss the district's request for an easement
across the county parkland, securing continuing access to the Barham acreage responsive
to the county's plan to place deed restrictions on its parkland.
The difference, McKee explains in a declaration, is in the signals sent to the citizens
concerned. The apparent sale of all or part of the ranch to the county suggested that it
would remain undeveloped, as a county park extension. But the real plan to secure an
access easement through the park to the ranch showed the district keeping its options open
for development of the acreage.
This closed session had been preceded by "potential litigation" closed
sessions at three meetings in June and July whose topics were described on the agenda as
"County of Orange Ordinance Adding Use Restrictions on County Regional Harbors,
Beaches and Park Land."
McKee says this "potential" litigation rationale contingent on some future
action by another party is not what the Brown Act means by the "existing facts and
circumstances" required to justify a closed litigation consultation.
"In considering the potential passage of an ordinance conditioning the grant of
easements upon voter approval in an election, the County did not threaten litigation
against (the district); and (the district) was not faced with the imminent passage of
restrictions on County land because the measure had not yet been taken up by the County,
much less considered, or passed.," McKee states in a declaration.
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CFAC President Makes Brown Act Challenges (4/1/02)
Rich McKee, president of the California First Amendment Coalition, wants correction of
alleged meeting law violations in a city and a school district.
In Upland, where the city owns a 70 percent interest in the
San Antonio Water Company, the city council has appointed all members of the company
board, including delegating two council members as voting directors. Those facts, says
McKee, make the water company board's meetings subject to the Ralph M. Brown Act under one
of the alternative definitions of "legislative body" in Government Code Section
54952 (c) (2).
But McKee charged in a March 25 demand of cure and
correction that the water board fails to comply with the act's requirements for posted
meeting agendas, allowance for public comment, and conference call meetings, for example.
And at its March 21 meetings, McKee said, the board "expelled members of the public
for no other reason than they were not shareholders" in the water company, and
"then took formal action to install new board members as dictated by the city."
McKee's demand is that the board, "at a properly
agendized, open public meeting, rescind all the board's actions of March 21, and create
new bylaws which comply with the Brown Act."
A homeowners' group is frustrated because a representative
of its interests was not appointed to the board. For the full background see the Los
Angeles Times story on the controversy at (LA
Times Story). Meanwhile McKee has also sent a second demand for cure and correction
challenging another action by the board of the Bassett Unified School District in La
Puente.
The first (see FLASH of March 18, "CFAC President Lays
Down Challenge to La Puente School Board"), dealt with a teacher's concern over the
presence of a potentially dangerous student, which led to two closed board sessions in
which the board considered disciplining the teacher without permitting her to have an open
hearing of the charges. That cure and correct letter, which must be answered
satisfactorily within 30 days or face possible litigation, was filed March 18.
Another challenge letter sent March 25 concerns notices
given to several probationary teachers on March 13, but dated March 15, announcing their
"Non-Reelection/Non-Reeployment" for the coming school year. "
In fact," said McKee in his letter, "the Board of
Education took no such action 'not to reelect/reemploy' these teachers, nor could that
potential action have been anticipated from any item on the agenda for March 14." He
adds, "I am informed and believe that no (Brown Act required) report was given at the
March 14 Board meeting of such an action having been taken in closed session."
Mckee called the March 13 notification of an action never
taken by the board "an intentional fraud perpetrated upon these probationary teachers
and upon the people of the State of California by Bassett Unified." In addition,
"by the Board's failure to take a lawful action not to reelect these probationary
teachers (by the state-imposed March 15 deadline), they are deemed to have been reelected
for next school year," he said.
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Nominees Sought for Farr Open Government Award(4/1/02)
The California First Amendment Coalition is currently soliciting nominees
for the annual Bill Farr Award, given each year to an individual who has performed
exemplary work in the arena of open government. The award is given in honor of former Los
Angeles Herald Examiner Reporter Bill Farr, who went to jail in 1971 after citing the
shield law and refusing to reveal sources of a leak in the infamous Charles Manson Case.
Qualifications for the award are exemplary accomplishment,
service or other contributions to "the people's right to know" in California.
The winner will be an individual whose actions deserve public honor and emulation. Areas
vital in the struggle for open government are access to public meetings, public records
and courts; defense of citizens' right to speak; defense of journalists' rights; and
defense of the right to "blow the whistle" and alert the public to matters of
common concern.
Last year, the award was presented to The Stockton Record
for a series of articles documenting the lack of compliance with the California Public
Records Act. In 2000, the award went to Tim Crews, publisher of the Sacramento Valley
Mirror who served time in jail for refusing to identify the source of information in news
stories about a California Highway patrolman who stole a confiscated weapon. Crews said at
the time that if he named the sources it would "make a complete mockery" of a
state law that gives reporters the right to shield confidential sources.
The Farr Award is presented annually at the spring
conference of the California Society of Newspaper Editors, which this year is set for May
17 at the Disney Paradise Pier hotel in Anaheim. Please send nominations, supported by
letters, newspaper clippings or other documentation sufficient to explain the nature of
the performance, service or activity to be saluted, its context and its consequences.
Address nominations to: CFAC/Farr Award, 2701 Cottage Way, Suite 12, Sacramento, CA 95825.
Deadline for nominations is Monday, April 12.
Open Government Conference Slated for Oct. 17-19 (3/18/02)
Mark your calendars and save the dates of Oct. 17-19 to attend OpenGov02,
the California First Amendment Coalition’s seventh annual open government assembly.
This year’s conference will be at San Jose State University and promises
to be the best ever, featuring keynote speeches by the state’s highest ranking
justice, the editor of the largest newspaper in California and the founder of an
organization nationally acclaimed for bringing voter information to the internet.
“We are looking forward to a tremendous conference filled with valuable
training and insight into open government issues,” said CFAC President Richard McKee.
“You won’t want to miss this convergence of open government advocates from all
walks of life exploring the legal and practical aspects of open government law.”
The conference will include roundtable discussions, concurrent sessions,
symposiums and a series of debates between open government advocates and government
officials with more moderate views of how transparent government should be.
OpenGov02 registration is $50 for CFAC members with a $10 discount if you
register before Aug. 15, 2002. Further information and online registration is available at
http://www.CFAC.org
Confirmed as keynote speakers are Chief Justice of California Ronald George,
Los Angeles Times Executive Editor John Carroll and California Voter Foundation founder
and president Kim Alexander.
OpenGov02 conference chairs are James Chadwick, an attorney with Gray Cary Ware
& Freidenrich who has handled numerous efforts to enforce open government law, and
Mort Levine, a retired Bay Area newspaper publisher who has long been an advocate for
government transparency. San Jose Mercury Executive Editor David Yarnold is the OpenGov02
fundraising chair.
In order to put together a program with the best speakers with widely diverse
viewpoints, CFAC has issued a “Call for Presentations” requesting proposals by
attorneys, journalists, civic activists and public officials who want to share their
expertise with participants. A list of suggested presentation topics is available on the
Web at OpenGov02 Call for
Presentations
The suggested presentation topics fall into five categories: Access to
government; Civil liberties; Access to Law Enforcement and the Courts; How to Demand and
Improve Government Transparency; and On Campus: Press Freedoms and Press Access.
Presenters will receive free conference registration and recognition in the
program and marketing materials. Presentation proposals will be selected by a CFAC
committee based on content, clarity and completeness of proposal; presenter's expertise
and knowledge; relevance to conference theme; and agreement to provide digital version of
presentation, if applicable, for OpenGov02 conference Web archive.
Deadline for proposals, which should be made on the official presentation
proposal form, available on the Web or via FAX or mail, is June 1, 2002.
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CFAC demands Los Angeles Supervisors
Cure and Correct Brown Act Violations (3/18/02)
CFAC President Richard McKee today sent a cure and correct
request to the Los Angeles County Board of Supervisors urging them to acknowledge and
remedy their violations of the Brown Act when they took secret action at a closed session
to thwart a ballot initiative.
As reported last week’s FLASH, a March 7 Los Angeles
Times story disclosed that the board used a closed session in December to direct County
Counsel Lloyd Pellman to block what it viewed as a costly and unconstitutional
union-backed initiative by declining to provide it with a title and summary for
signature-gathering.
When Pellman warned three of the five supervisors by phone
the next day that this move might embroil the county as a whole in a civil rights lawsuit,
they backed off support for the stratagem.
The Service Employees International Union local that
proposed the initiative‹to increase to about $11 per hour the pay of home care health
aides‹called on District Attorney Steve Cooley to investigate whether the closed
session and the next day’s phone polling had run afoul of the Ralph M. Brown
Act’s open meeting requirements and if so, whether individual supervisors involved
should be prosecuted for a criminal violation.
CFAC President McKee’s letter to the board pointed out
several practices he contends violate the Brown Act:
-- persistent failure to specify on meeting agendas which
labor unions were involved in negotiations for which closed sessions on bargaining were
scheduled;
-- persistent failure to specify on meeting agendas which
employee positions were to be the subject of closed session performance evaluations, with
“department head” being the standing rubric instead;
-- adoption of a basis for closed sessions not authorized
under the Brown Act, namely “Confidential report of the Children’s Services
Inspector General concerning child death.”
McKee’s demand is that the board abandon these
practices and formally commit not to resume them.
Meanwhile, Board Chairman Zev Yaroslavsky has placed on
tomorrow’s (March 19) agenda a motion to schedule for the March 26 meeting what his
press aide calls “a full and open debate and discussion on the LA County Board of
Supervisors' compliance with California's open-meeting and public-records laws.”
Joel Bellman, in a March 15 e-mail to a wide variety of
press and citizen watchdogs, including several CFAC board members, encouraged them to
support the motion and attend the sunshine session, stating:
“Zev's intention is to air out, as fully as we can,
questions, concerns, and explanations about the Board's policies in re: closed session
calendars, discussions, actions and reporting; record-keeping and agenda publication; and
the issues surrounding meetings of board deputies which are not currently covered by the
Brown Act. County officials will make presentations to explain their policies and
procedures, and interested members of the public are invited to sign up to testify as
well. Out of this, we hope, will eventually emerge strengthened County sunshine policies
that will help improve the quality of County policymaking and restore a measure of public
confidence in County government.”
The controversy gives added impetus to a proposal drafted by
representatives of the Los Angeles Press Club and others for a board-adopted Sunshine
Ordinance, in which supervisors would commit themselves and the county to more open
practices than strictly required by the Brown Act or the California Public Records Act.
Press Club Board Members Karen Ocamb and Ana Garcia wrote
Yaroslavsky that several sunshine proponents would attend the March 26 forum, but not all
would comment.
“We represent a number of members who cannot speak.
Many journalists are forbidden by their employers from taking a position on an issue, even
if it's simply to relay their own experience rather than an opinion. Additionally, we are
aware of some non-profit directors who will not speak for fear of a backlash from County
directors who decide their funding. However, we have collected letters from parties in
both these instances which we would like to submit as evidence.”
On the other hand, wrote Ocamb and Garcia, the time was ripe
for a radical change in the direction of openness:
“As one of our veteran political journalists put it,
when bad practices become institutionalized, they become the norm. For too long
journalists and citizen activists have suspected secret meetings and violations of the
Brown Act and have put up with insufferable bureaucratic delays and denials over public
records requests. It's just the way things are, everyone says. But it's not the way things
are supposed to be.”
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CFAC President Lays Down Challenge to
La Puente School Board(3/18/02)
A teacher’s concern over the presence of a potentially
dangerous student led to two closed board sessions in which the board considered
disciplining the teacher in violation of her rights, says CFAC President Richard McKee.
McKee has today filed a demand for cure and correction of
two alleged violations of the Ralph M. Brown Act by the board of the Bassett Unified
School District in La Puente.
McKee notes that the board held a closed session on February
28 concerning Jeannie Samuels, a teacher and president of the Bassett Teachers
Association. Despite his warning at the time, the board’s closed session addressed
what the agenda described as “Access to records by a person without written parental
consent or under judicial order pursuant to Education Code 49076,” but gave Samuels
no advance written notice of the session. On March 14 the board held another closed
session of which Samuels was given advance notice. But the message was that she could be
heard in public on the matter, but the board would not discuss it openly.
The move against Samuels, McKee says, was prompted by her
earlier approach to Superintendent Robert Nero to express concern that a student found
with a knife had been suspended for only two days and allowed to return to campus rather
than, as state law permits, being expelled. When Nero demanded to know how Samuels had
learned as much, she faxed him a report on the matter that, she insists, she acquired
without violating pupil privacy law.
As McKee cautioned the board before the first closed
session, the Ralph M. Brown Act, governing open meetings by local boards and councils,
requires that local agency employees be given at least 24 hours written advance notice of
any closed session in which specific complaints or charges about them are to be discussed.
Failing such notice, any resulting disciplinary action taken against them is declared in
Government Code Section 54957 to be “null and void.”
The purpose of the notice is to give the accused employee
the right to request a public hearing.
Mckee again appeared before the board at the March 14
meeting, warned trustees that Samuels was entitled to hear the complaints and the
board’s discussion in public, but to no avail. The school board’s attorney
refused to read Section 54957 to trustees as McKee requested.
At the first meeting, Superintendent Nero said the written
notice was not required because the closed session was not concerning discipline but
rather a “performance evaluation.” But by the second meeting, said Samuels in
her letter to the board, Nero was clearly charging her with a violation of law and
suggesting possible discipline.
McKee’s letter dated today (March 18) demands that the
board within 30 days hold an “open, agendized discussion of (the charges against
Samuels) and shall reveal all of the discussion had in those illegal closed sessions and
shall act to void any action(s) taken therein.”
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CFAC Joins Support for Case Defending
Criticism on Internet (3/4/02)
The California First Amendment Coalition has joined a
friend of the court brief in a case about criticism of corporations on the Web.
CFAC joined the Electronic Frontier Foundation (EFF)
and the First Amendment Project in filing a brief February 27 with the California Court of
Appeal for the Fourth District in Hollis-Eden v. Wells, a case in which the San Diego
Superior Court ruled that the speech of an on-line critic, Michael Wells, was not
protected because, as a corporate shareholder, he had a "pecuniary" interest in
the publicly-traded company.
As described by EFF,
“After Hollis-Eden Pharmaceuticals sued Wells
and over 50 other defendants who posted criticisms of the company on a Yahoo! message
board, Wells requested dismissal of the case under California's Strategic Lawsuits Against
Public Participation (SLAPP) statute. The lower court denied Wells's request for dismissal
under the statute, which allows the target of an intimidation lawsuit to quickly and
inexpensively halt such lawsuits.
The amicus curiae brief states:
"It simply cannot be the case that the First
Amendment or California's SLAPP statute protect only those who speak about issues in which
they have no personal financial interest. To the contrary, it is often precisely this
interest that motivates citizens to join public debates. The protection of these debates
is the heart of the statute's goal of encouraging 'continued participation in matters of
public significance.'"
See the brief at Hollis-Eden
Amicus
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California Common Cause
Supports Constitutional Sunshine Bill (2/18/02)
The state’s most general-purpose public interest group has
joined those supporting a bill to put fundamental access rights on the ballot. California
Common Cause Executive Director Jim Knox sent a letter Friday, Feb. 15, to Sen. John
Burton expressing support for the Constitutional Sunshine Amendment Bill, SCA 7.
Common Cause joins the California League of Women
Voters, San Francisco Board of Supervisors, San Diego Democratic Central Committee,
California Chicano News Media Association and Los Angeles Press Club as organizations
expressing early support for the legislation.
The Common Cause support letter to Sen. Burton
states:
“California Common Cause is pleased to support
your SCA 7 which would place a measure on the November 2002 ballot to establish the
fundamental right of public access to government and the process of policy-making while
maintaining the individual’s right to privacy
“Although California Common Cause has been a
long-standing supporter for laws such as the Ralph M. Brown Act and the California Public
Records Act, it has become evident that invisible government persists. Therefore we stand
behind your effort to eradicate closed meetings and the “grayness” surrounding
the justification for withholding information.
“Please let us know what we can do to support
your work to pass SCA 7 in the Legislature and at the polls. Thank you for your leadership
on this important issue.”
For up-to-date information about SCA 7 go to ../sca7.html
Agency Lobbyists Air
Concerns about Sunshine Amendment (2/11/02)
Lobbyists for two key local agency organizations met with
sponsors of SCA 7 last week for preliminary questions on the sunshine measure. .
Senate Constitutional Amendment (SCA) 7 would place
on November’s ballot a proposed addition to the California Constitution making access
to state and local agency meetings and records a fundamental right, with exceptions
limited in scope and required to be carefully justified in application. .
Full information on the measure is at ../sca7.html
On February 5 representatives of the League of
California Cities and the County Supervisors Association of California (CSAC) met with the
California First Amendment Coalition (CFAC) and the California Newspaper Publishers
Association (CNPA), sponsors of the bill co-authored by Senators John Burton (D-San
Francisco) and Bruce McPherson (R-Santa Cruz). .
During the meeting, Sen. Burton’s staff aide,
Rodger Burton, said legislators were receiving lots of inquiries about SCA 7, mostly from
lobbyists representing law enforcement and other government entities. This makes it all
the more important for open government supporters to let their legislators hear from them
in support of the constitution Sunshine Amendment. .
Among the misunderstandings and concerns expressed by
the city and county lobbyists in the Feb. 5 meeting were contentions that SCA 7 would: .
--End personal privacy for all public employees.
RESPONSE: The language of SCA 7 would expose only information relating “to the
qualifications or fitness of a person for any elective or appointive office in
government.” That focus on officers would probably be interpreted to exclude
jobholders who are not officers, but even if applied to line employees, it would go no
further than current case law, which concludes that public employees in general have no
right under any privacy law, including the state constitutional provision, to information
about confirmed instances of substantial misconduct, or discipline resulting from them. As
for the law that now protects peace officers from any disclosure of misconduct (short of
crimes) or discipline, it could be expected that its extraordinary secrecy would be
defended in the name of one or both of SCA 7’s permitted exemptions in the interest
of public safety or the effective administration of justice. .
--Apply to state legislators and their activity.
RESPONSE: The State Constitution already mandates open meetings in the legislature, with
some exceptions, and in the case of any conflict would almost certainly be viewed as
trumping SCA 7. As for legislative records, the Legislative Open Records Act has
exemptions, but most of them could be interpreted as relating to privacy and other
interests cited in SCA 7. .
--Automatically void current statutes. RESPONSE: SCA 7 would affect current
law only by a process of piecemeal court challenges. Lawmakers would be free to amend or
repeal statutes in conformity with the policy stated in the constitutional amendment, but
would not be forced to do so. .
--Lead to extensive litigation. RESPONSE: Litigation
is the natural and necessary process by which the constitutional validity of any statute
or practice is tested, but there is little reason to believe that the result of SCA 7
would be to heighten the frequency of anti-secrecy litigation. .
Asked what had happened to motivate the push for a
constitutional sunshine amendment at this time, the CFAC and CNPA representatives at the
meeting said no one incident was crucial, but rather that the past two decades had seen
increasing loopholes from disclosure requirements, stemming more from court decisions than
legislation. Also the fact that reform legislation approved in the Assembly and Senate but
frustrated by a succession of governor’s vetoes causes the organizations to attempt
to let the people speak at the ballot box. Meanwhile, they said, the lack of any
requirement to justify secrecy in practical, specific terms leaves too many local agencies
free to simply cite a statute when questioned on closure of a meeting or a file. .
Back to top
Latest on SCA 7 The
Constitutional Sunshine Amendment Bill (2/04/02)
(Stay current daily at ../sca7.html)
SF Board of Supervisors Endorses SCA 7.....Voting
unanimously, the San Francisco Board of supervisors endorsed SCA 7 Feb. 1, saying the
board "is committed to the public’s right to information and is dedicated to
improving the flow of information between government agencies and the public." (View the full text of the
board's resolution at SF Board Resolution)
CFAC Files Support Letters.....The California First
Amendment Coalition (CFAC) has formally notified the legislative authors and the relevant
Senate Committees of its support for SCA 7, which would place a proposed amendment to the
California Constitution on the November ballot creating a constitutional right to open
government for Californians. Letters sent to Senators John Burton (D-San Francisco) and
Bruce McPherson (R-Santa Cruz) as well as four Assembly co-authors last week state:
“It is time to add to the basic civil liberties of Californians the right to
transparent governmental processes, open to public observation and comment. It is time for
the California Constitution itself to insist that state and local agencies keep official
secrecy to a minimum and explain in understandable terms why closed meetings and records
are essential to avoid harm to a serious public or private interest when that is really
the case.”
Cities, Counties to Detail Objections.....Lobbyists
and lawyers for the League of California Cities and the California State Association of
Counties will meet tomorrow with CFAC and representatives of the California Newspaper
Publishers Association (CNPA) to discuss the local agencies’ objections and
reservations concerning SCA 7. The League has reportedly taken an “Oppose Unless
Amended” position on the bill, but its precise menu for desired amendments has not
been disclosed. According to League Executive Director Chris McKenzie, one concern is
“security,” although the bill expressly authorizes the legislature to enact
exemptions from public access to meetings and records that would jeopardize public safety.
Newspapers Begin to Lay on the Ink.....As of today,
editorials supporting SCA 7 have appeared in the Santa Cruz Sentinel, Contra Costa Times
(Walnut Creek), the San Diego Union-Tribune, the Claremont Courier, the Orange County
Register and also Editor & Publisher magazine. Sacramento Bee columnist Margie
Lundstrom comments, however, that the press doesn’t own this issue: “It's
tempting to view this as a narrow, self-serving issue raised by the whiny media, but
that's deceptive. Journalists may bellyache the loudest over secret reports and closed
meetings, and they've got a nice platform from which to do so. But the true foot soldiers
are those California citizens -- often labeled as kooks or gadflies -- who probe their
local water districts, scrutinize their city councils, and fight to hold their schools
accountable.” In its profile of CFAC President Rich McKee in the current issue, the
Sacramento News & Review quotes co-author Senator John Burton as commenting, “If
you’re doing the public’s business, and representing the public, and the public
pays your salary, they have the right to know what the hell is going on.”(see McKee Profile )
CFAC
Questions Closed Ethics Sessions
(2/4/02)
When city ethics commissions meet to decide
whether to prosecute, they close the doors. But is the secrecy lawful?
No, says Terry Francke, general counsel of the
California First Amendment Coalition. In a message to the executive director of the San
Diego Ethics Commission last week, Francke challenged the body’s announced proposal
to conduct probable cause hearings in secret.
A probable cause hearing is called to consider the
investigative results and recommendations of the executive director, who also serves as
chief prosecutor concerning violations of the city’s law governing financial interest
disclosures, conflicts or interest and the like on the part of elected and key staff
officials, other members of city boards and commissions, lobbyists and candidates for city
offices.
If the hearing establishes probable cause to believe
that the governed party violated ethical rules, the commission would then vote to have the
matter tried, with a final determination of guilt resulting in a fine and, usually,
serious political damage. For that reason, the pressure is on the accused to, in effect,
plea bargain, stipulating to liability and paying the fine.
The pressure is possible at that point because
neither the San Diego commission in its announced policies, nor the ethics commissions in
Los Angeles and San Francisco in practice, conduct the probable cause hearings publicly,
but if the matter goes to a trial-like hearing, it will be public.
A January 29 story in the San Diego Daily
Transcript reported that the city council had adopted rules governing investigations and
enforcement by the new commission, where penalties could involve fines of up to $5,000.
“The city's new ethics commission will conduct
its investigations in secret,” said the story, “releasing summaries of the cases
after they are closed or holding rare public hearings when they are absolutely necessary.
“The procedures are designed to protect the
reputations of innocent people against false accusations. But, in so doing, they provide
only a few brief opportunities for the public to participate in the process or learn about
officials who violate ethics laws.”
Francke queried the commission’s executive
director, Charles Walker, about the issue, and Walker replied that “the authority to
close the commission meetings is derived from Govt. Code Sec 54956.9 which allows closed
sessions to discuss pending litigation. This has been broadly defined to include
administrative proceedings such as votes to issue subpoenas and decisions to proceed with
Probable Cause hearings which are conducted in closed session to protect the privacy of
the Respondent.”
Francke told Walker,
“I would agree that to the extent the city is a
party to proceedings enforcing ethical rules -- the prosecutor, that is -- it is entitled
to assert 54956.9 as a basis for closed session discussions with its legal counsel
regarding the prosecution of these actions.
“But as for probable cause hearings, are you
referring to a closed session in which the commission "votes to issue subpoenas and
deci(des) to proceed with Probable Cause hearings" or a closed session to conduct the
probable cause hearing itself? If the latter, the Brown Act simply doesn't authorize a
closed session to protect the privacy of adverse parties -- other than (in this case) city
employees. As the Attorney General's office has pointed out in its official guide, The
Brown Act’ (1994),
“Under the Brown Act, closed sessions must be
expressly authorized by explicit statutory provisions. Prior to the enactment of section
54962, the courts and this office had recognized impliedly authorized justifications for
closed sessions However, that legislation made it clear that closed sessions cannot be
conducted unless they are expressly authorized by statute: “The law evinces a strong
bias in favor of open meetings, and court decisions and opinions of this office have
buttressed that legislative intent The fact that material may be sensitive, embarrassing
or controversial does not justify application of a closed session unless it is authorized
by some specific exception Rather, in many circumstances these characteristics may be
further evidence of the need for public scrutiny and participation in discussing such
matters.’”
“Furthermore, to the extent that an accused or
his or her counsel is present in the probable cause hearing, that fact would preclude
application of the 54956.9 closed session, which cannot be held to interact with adverse
parties. Again, in the words of the Attorney General's guide,
“Since the purpose of the pending litigation
exception is to protect confidential attorney-client communications, our opinion in 62
Ops.Cal.Atty.Gen. 150 (1979) continues to be applicable insofar as it concluded that
nonconfidential communications between an attorney and his or her client are not
protected. In that opinion, two boards which were adversaries in a lawsuit, along with
their counsel, sought to meet in closed session for purposes of negotiating a settlement
to that lawsuit. Thus, it was the negotiations, rather than confidential communications
between the lawyer and the client, which the bodies sought to protect. Accordingly, we
concluded that a closed session was not appropriate for these negotiations.’”
“Finally, a probable cause hearing before an
administrative body is the analogue of a preliminary hearing in the criminal justice
system, which cannot be closed to the public absent specific findings, typically to the
effect that public proceedings would tend to prejudice the accused's prospects for a fair
trial before an impartial jury. (Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 106
S. Ct. 2735, 92 L. Ed. 2d 1, 54 U.S.L.W. 4869):
“Since a qualified First Amendment right of
access attaches to preliminary hearings in California the proceedings cannot be closed
unless specific, on the record findings are made demonstrating that closure is essential
to preserve higher values and is narrowly tailored to serve that interest If the interest
asserted is the right of the accused to a fair trial, the preliminary hearing shall be
closed only if specific findings are made demonstrating that, first, there is a
substantial probability that the defendant's right to a fair trial will be prejudiced by
publicity that closure would prevent and, second, reasonable alternatives to closure
cannot adequately protect the defendant's fair trial rights.’”
“Since an administrative hearing is a non-jury
occasion there would be no risk of an unfair trial created by open probable cause
proceedings. And to repeat, constitutional principles aside, the governing statute simply
does not permit closed sessions to protect persons other than employees of the agency in
question.”
The question is of more than isolated importance,
Francke says, because the policies of ethics commissions in Los Angeles and San Francisco
call for closing probable cause hearings as well.
“I'm not unsympathetic to the reputational
issue, but preliminary hearings in criminal cases are presumed to be open, and while the
defendant formally enjoys the presumption of innocence, in that setting publicity can
sometimes create a real threat of a biased jury panel ‹ not a risk here.
“Moreover, when the central issue is
governmental integrity I think there's a good argument for erring on the side of
transparency. And after all, a probable cause hearing doesn't air raw accusations; it
presents the executive director's (prosecutor's) professional conclusions, based on an
official investigation, that not just suspicion but evidence exists to believe a covered
official has violated the ethics norms.
“If open courts, even at pretrial stages, foster
public confidence in a justice system free of bias, unfairness and corruption, why should
ethics adjudication, which directly intervenes in political practices and culture, be
treated as if it were a private process at the stage of a probable cause
determination?”
Francke will write a letter to the commissions asking
them to reconsider the closure policy, and depending on the reaction, CFAC may take
further steps.
Back to top
Burton Introduces CFAC
“Sunshine” Amendment
(1/14/02)
Senate President pro Tem John Burton has launched a
CFAC-sponsored bill to let California voters make open government a fundamental right. SCA
7, introduced Thursday, January 7, would if passed by both houses of the legislature by
June 27, go on the ballot for voter approval on November 5. To succeed it would need
majority approval from the electorate. The bill can be tracked online at: (SCA
7)
The bill has a principal co-author in Senator Bruce
McPherson (R-Santa Cruz), and in the Assembly lists as co-authors Fred Keeley
(D-Monterey), Christine Kehoe (D-San Diego), Bill Leonard (R-San Bernardino), Lou Papan
(D-San Mateo) and Kevin Shelley (D-San Francisco).
Senator Burton (D-San Francisco) agreed to carry SCA
7 at the request of the California First Amendment Coalition (CFAC) and the California
Newspaper Publishers Association (CNPA). CNPA, which has represented California daily and
weekly newspapers for more than a century, remarks in its current membership bulletin that
“SCA 7 represents, perhaps, the most important public policy battle ever waged by
CNPA and CFAC.”
CFAC Executive Director Kent Pollock agreed, and said
it was a special challenge for CFAC. ”This bill has to pick up a very strong momentum
of support starting right now and sustain it for almost a year. And yet given our
nonprofit status, there’s only so much in terms of resources that CFAC can expend on
the effort. That’s why we are asking our members to get involved. We need them to
send at least a brief letter of support to Senator Burton and if possible, get associates
or organizations that champion open government to do the same.”
General Counsel Terry Francke added that while e-mail
is the quickest way to spread the word, “an old-fashioned letter in your own words
has no substitute in expressing support to Senator Burton, and through him, to the
legislature as a whole.” Sending a copy to one’s own lawmakers in the Senate and
Assembly, Francke said, “provides maximum impact with minimum effort.
Letters are best addressed to:
Senator John Burton, State Capitol Room 205,
Sacramento, CA 95814
OR
(Your Senator or Assembly Member), State Capitol,
P.O. Box 942849, Sacramento, CA 94249-0001
As an early and extraordinarily swift endorsement,
the board of directors of the League of Women Voters of California unanimously resolved to
support the measure at its Saturday, January 12 meeting in Sacramento.
If passed in June and approved in November, SCA 7
would raise open government principles to the status in the state constitution now enjoyed
by such rights as free speech, free press and personal privacy.
As configured in the draft prepared by CFAC, the new
language would supplement Article I, Section 3, which currently states the rights of the
people “to instruct their representatives, petition government for the redress of
grievances, and assemble freely to consult for the common good.”
The added language would set forth:
-- A general presumption of open access: “Except
as provided pursuant to this Constitution, the people have a right to attend, observe, and
be heard in the meetings of elected and appointed public bodies, and to inspect and copy
records made or received in connection with the official business of any public body,
agency, officer, or employee, or anyone acting on their behalf.”
-- A special regard for the privacy of ordinary
citizens; the legislature would retain the authority “to provide by statute for the
protection of information about private individuals submitted to or obtained by any public
body, agency, officer, or employee, or anyone acting on their behalf, except to the extent
that the information relates to the qualifications or fitness of a person for any elective
or appointive office in government.”
-- A designation of a few areas where restricted
access can serve vital public interests; the legislature would be authorized to create
“other limitations on the right of public access to governmental information,”
but “only as necessary to protect public safety or private property, to ensure the
fair and effective administration of justice, or to provide for the preservation of public
funds and resources.”
-- A mandatory process for justifying restrictions
case by case; when it comes to actually denying access based on one of the authorized
interests, the denial would have to be “based on particularized findings
demonstrating a substantial probability of serious harm to the public interest that the
denial will avert, and that this harm cannot otherwise be averted by reasonable
alternatives, and shall be no broader in scope or longer in duration than necessary to
avert the identified harm.”
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User
Friendly Public Records Law Take Effect (1/02/02)
From now on, state and local government agencies in California
are required to assist citizens seeking public information.
As of January 1, a new provision of the California
Public Records Act (CPRA) tells public agencies to assist document requesters in making
focused and effective requests, to describe how and where responsive information is
kept-in computer storage or otherwise-and to provide suggestions where possible to
overcome barriers to access.
Government Code Section 6253.1 was added to the
public records law by Assemblyman Lou Papan (D-Millbrae) in AB 1014, signed by Governor
Gray Davis last September.
"The Public Records Act guarantees that most
government documents are available for review but until now carried little protection for
citizens attempting to obtain documents from reluctant or uninformed sources," said
Papan. "This new law will allow the public to access what is rightfully theirs to
inspect."
Papan carried the bill in response to an audit of
public agency responsiveness conducted by the California First Amendment Coalition (CFAC)
and the Society of Professional Journalists. As Papan’s office noted, “those
agencies initially deny 77 percent of all requests for information for which there is no
obvious barrier to prevent disclosure.”
“If this works like typical new
legislation, many if not most public officials won’t be aware of it for some
time,” said Kent Pollock, executive director of the California First Amendment
Coalition (CFAC). “We strongly suggest that citizens and journalists who make a
written request citing the CPRA also refer to the new law or even enclose a copy to
emphasize the more supportive level of service they are entitled to.”
According to CFAC General Counsel Terry Francke, the
new provisions could be especially helpful where:
-- Citizens don’t know specifically what records
contain the information they are seeking. The CPRA itself does not require agencies to
provide an explanatory summary or list that does not already exist. But AB 1014 requires
agencies to help requesters “identify records and information that are responsive to
the request or to the purpose of the request, if stated.” Accordingly, if the gist of
what is being sought is apparent, the agency should spell out which records are likely to
contain the information sought.
-- The records are not maintained in a paper format,
but can be either printed out or produced in an electronic copy for inspection or copying,
if that would be satisfactory to the requester.
-- The information sought, while not kept in the
files of the agency receiving the request, is known to exist in some other agency’s
files, to which the requester can be referred.
-- Much of the information can be displayed or
produced if the requester is willing to have certain segments, confidential by law,
deleted before release. -- There’s some other “smart” way to get the
information sooner, cheaper or more completely than by using a CPRA request.
“I think the key change involved is one of
attitude,” said Francke. “If instead of taking the position of ‘I
can’t help you because you didn’t ask the right question, or I won’t help
you because I can say no to what you asked for in the way you asked for it,’ the
government official uses a little friendliness and imagination to see if there’s any
way to satisfy the requester, then AB 1014 will be successful.
“There are a lot of public servants who already
take this approach, and we hear too little about them,” Francke said. “They
won’t have any problem with the new rules. Let’s hope the others get the word
and follow the new law.”
Francke added that public information requesters
should also do their part by providing as much information as possible to help those with
the records determine what will be satisfactory.
“The law doesn’t require requesters to
state why they want the information, but doing so can make a big difference in some
cases,” Francke said. “Unless there’s a very good reason for being discreet
about your purpose, being candid will give you more leverage under AB 1014.”
Government Code Section 6253.1 states:
“(a) When a member of the public requests to
inspect a public record or obtain a copy of a public record, the public agency, in order
to assist the member of the public to make a focused and effective request that reasonably
describes an identifiable record or records, shall do all of the following, to the extent
reasonable under the circumstances:
(1) Assist the member of the public to identify
records and information that are responsive to the request or to the purpose of the
request, if stated.
(2) Describe the information technology and physical
location in which the records exist.
(3) Provide suggestions for overcoming any practical
basis for denying access to the records or information sought.
“(b) The requirements of paragraph (1) of
subdivision (a) shall be deemed to have been satisfied if the public agency is unable to
identify the requested information after making a reasonable effort to elicit additional
clarifying information from the requester that will help identify the record or records.
“(c) The requirements of subdivision (a) are in
addition to any action required of a public agency by Section 6253.
“(d) This section shall not apply to a request
for public records if any of the following applies:
(1) The public agency makes available the requested
records pursuant to Section 6253.
(2) The public agency determines that the request
should be denied and bases that determination solely on an exemption listed in Section
6254.
(3) The public agency makes available an index of its
records.”
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Burton
to Carry CFAC’s Constitutional Amendment (12/24/01)
Voters could add open government as a state constitutional right
if CFAC and Sacramento’s most powerful lawmaker have their way.
Senate President pro Tem John Burton (D-San
Francisco) has agreed to act as principal author of a Senate Constitutional Amendment
aimed at giving the state’s voters the chance, on next November’s ballot, to add
open government rights to the California Constitution.
The amendment would have to pass both houses of the
legislature by a two thirds margin, but would not require the governor’s approval.
Once on the ballot, it would likewise need two thirds voter approval to become law.
Burton and former Senator Quentin Kopp co-authored
the 1994 revisions to the Brown Act affecting open meetings of local government. The
Associated Press last week quoted him as remarking, "I think the burden should be on
the agencies to explain why they keep this stuff secret.''
That is the essence of the draft amendment provided
to Burton by attorneys for the California First Amendment Coalition and the California
Newspaper Publishers Association. CFAC’s Board of Directors, meeting in San Francisco
December 12, agreed to ask the senator to carry the legislation, which had been in draft
form for more than two years awaiting a willing and effective author.
As noted by CFAC President Richard McKee, periodic audits
and anecdotal experience suggest that too often requests to agencies for information felt
to be sensitive get, in effect, a “no.”
"That's often a knee-jerk response you get from
an agency the first time you request something,'' McKee told AP. "If you show them
you have knowledge of the law, they become a little more careful. But they know the only
way you can get at them is to sue.''
The proposed amendment addresses access to government
meetings as well as records, limits the policy reasons for which secrecy can be
authorized, and requires agencies to provide clear and plausible reasons for closing
meetings and withholding records-and also to keep the denial of access to a minimum.
The language submitted to Burton for reduction to
bill form proposes an amendment to Article I, Section 3, which currently simply states,
“The people have the right to instruct their representatives, petition government for
redress of grievances, and assemble freely to consult for the common good.” That
provision would become paragraph (a), to be supplemented by the following:
“(b) (1) Access to information concerning the
conduct of the people’s business is a fundamental and necessary right of every person
in this state. Public agencies and officers exist to aid in the conduct of the people's
business, and their actions and deliberations should be open to public scrutiny.
Therefore, except as provided pursuant to this constitution, the people have a right to
attend, observe, and be heard in the meetings of elected and appointed public bodies, and
to inspect and copy records made or received in connection with the official business of
any public body, agency, officer, or employee, or anyone acting on their behalf.
“(2) Privacy also being a fundamental right of
the citizens of this state, nothing in this section shall be construed to limit the
ability of the legislature to provide for the protection of information about private
individuals submitted to or obtained by any public body, agency, officer, or employee, or
anyone acting on their behalf, except to the extent the information relates to the
qualifications or fitness of a person for any elective or appointive office in the
government.
“(3) The legislature may enact other limitations
on the right of public access to governmental information only as necessary to protect
public safety or private property, to ensure the fair and effective administration of
justice, or to provide for the preservation of public funds and resources. Any application
of such limiting statutes by any public body, agency, officer, or employee, or anyone
acting on their behalf, to deny rights specified in paragraph (1), shall be based on
particularized findings demonstrating a substantial probability of serious harm to the
public interest that the denial will avert, and that such harm cannot otherwise be averted
by reasonable alternatives, and shall be no broader in scope or longer in duration than
necessary to avert the identified harm.”
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CFAC Board Protests Ashcroft,
White House Public Information Policies (12/24/01)
Accusing U.S. Attorney General John Ashcroft of fostering
“an environment that is hostile to open government,” the California First
Amendment Coalition board of directors has unanimously adopted a resolution asking the
attorney general to keep government “open and accessible” despite the war on
terrorism.
The resolution, passed at the organization’s
quarterly board meeting, charges Ashcroft with violating the founding Constitutional
principles “that ensure free and open dissent, due process of law, and government by
and for the people.”
The resolution calls upon Congress and the White
House to “vigilantly defend and protect these principles, particularly in times of
national crisis and uncertainty such as this.”
“Our board and many of our members have been
increasingly concerned about the way basic Constitutional rights have been ignored in the
pursuit of terrorism,” said CFAC Executive Director Kent Pollock. “The
board’s discussion revealed sensitivity to the national crisis, but the board felt
duty-bound to speak out against obvious violations of civil rights that have served this
nation well since its inception.”
The resolution will be sent to Ashcroft, the White
House and key members of Congress for their consideration.
Here’s the resolution:
WHEREAS the United States of America was founded on
principles that ensure free and open dissent, due process of law, and government by and
for the people; and
WHEREAS it is the duty of officials in Congress and
the White House to vigilantly defend and protect these principles, particularly in times
of national crisis and uncertainty such as this; and
WHEREAS rather than upholding these values, United
States Attorney General John Ashcroft has violated these founding ideals by seeking to
deny information, suppress debate and limit certain civil liberties; and
WHEREAS Attorney General Ashcroft and the White House
have fostered an environment that is hostile to open government by adopting a policy of
vigorously opposing requests of all kinds made under the Freedom of Information Act even
when the disclosure of information will cause no harm whatsoever, by announcing the
prerogative of an executive veto over legal and proper requests made under the
Presidential Records Act of 1978, and by steadfastly refusing to share certain information
pertaining to national security with Congress; and
WHEREAS Attorney General Ashcroft sought to stifle
dissent and muzzle critics by testifying on Dec. 7 before the Senate Judiciary Committee
that those who believe that liberties have been eroded in the post-Sept. 11 environment
and dare to call public attention to their concerns "only aid terrorists" and
"erode our national unity and diminish our resolve;" and such incendiary
statements miscast dissenters of White House policy as being disloyal or unpatriotic;
WHEREAS Attorney General Ashcroft has assisted in
implementing an administration policy of trying non-citizens accused of committing
terrorist acts or abetting terrorists in secret military tribunals, thereby preventing
public scrutiny of the propriety and fairness of such proceedings; and
WHEREAS Attorney General Ashcroft has adopted and
enforced a policy of holding hundreds of foreign nationals for unspecified lengths of time
while refusing to release their identities to the public or show just cause for these
detentions; and
NOW THEREFORE BE IT RESOLVED that the Board of
Directors of the California First Amendment Coalition calls upon Attorney General Ashcroft
to release the names and show justification for the detention of all those being held on
suspicion of terrorist activity; to refrain from further actions that would deny citizens
and immigrants alike the access to fair and open public trials; to show good faith in
abiding by the laws designed to ensure that government remains open and accessible to the
public even in times of national crisis; and to embrace the idea that speculative
criticism of government is a natural response of a concerned citizenry and that actions
and statements by government leaders with the intent to foster secrecy and raise
suspicions about the loyalty of individual citizens who are merely exercising their
freedom to speak, to question and to disagree, do not serve or honor the hard-fought
ideals and freedoms that set this nation apart.
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CFAC
Idyllwild Workshop Sponsored by Wide Array (12/17/01)
A series of community-based open government workshops by CFAC
General Counsel Terry Francke continues in Idyllwild next month at an event sponsored by a
wide array of civic and government organizations.
The public is invited to the free, three-hour
Idyllwild workshop to be held Jan. 17 at the Idyllwild Town Hall beginning at 8:30 a.m.
About 75 participants are expected in Idyllwild, many
of them elected and appointed public officials. Stories and ads in the Idyllwild Town
Crier have announced the event, which is sponsored by the newspaper, Fern Valley Water
District, Idyllwild Fire Protection District, Pine Cove Water District, Lake Hemet
Municipal Water District, the League of Women Voters of Southwest Riverside County, John
Holt of Hill Municipal Advisory Council, Bob Sargent of County Service Area 36 Advisory
Committee, and the Idyllwild Chamber of Commerce.
“We think public education is an effective way
to counter government tendencies toward secrecy,” Francke said. “We are trying
to build up a public expectation of openness in government that mirrors or exceeds
what’s required by law.”
Francke’s workshop, ‘Open Government:
It’s the Law!’ demystifies California’s open government laws and answers
every-day questions about everything from agenda posting to requirements of closed
sessions. He has conducted eight workshops this year and is already scheduled to do ten
more next year.
For more information on sponsoring an open government
workshop, go to the coalition’s Web page at www.CFAC.org
or call (916) 974-8888.
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Civic
Activist Elected as CFAC President (12/17/01)
A Pasadena City College chemistry professor with an impressive
record of local open government victories in southern California has become president of
the statewide California First Amendment Coalition.
Richard McKee, of La Verne, was unanimously elected by the
CFAC board of directors to replace Palo Alto Weekly Publisher Bill Johnson, whose two-year
term as CFAC President expired this month.
McKee’s selection marks the first time in
CFAC’s history that the organization has elected a civic activist rather than a
journalist as its president.
Over the past eight years, McKee has been involved in
ten open government lawsuits against cities, school districts, a water district and a
community college district, usually representing himself. He lost his first two suits, but
hasn’t suffered a litigation defeat since.
“Being president of an organization with such a
rich history of promoting and defending the public’s right to know is a great
honor,” said McKee. “I hope the organization can help convince public officials
that it’s safe to operate in the open. And that doing the people's business in
secrecy will never be tolerated.
An energetic and passionate advocate for open government,
McKee was once described in a Los Angeles Times story as becoming “as animated as
Jack Nicholson at a Lakers game when he talks about the people’s right to know.”
While McKee has brought litigation against
recalcitrant public agencies, his approach is to persuade and educate local officials
about open government laws. “I look to persuade local officials to open their
deliberations beyond what the law requires, explaining to them that secrecy breeds
unnecessary suspicion and distrust,” McKee said.
Outgoing CFAC President Bill Johnson praised
McKee’s accomplishments and approach. "The election of our first non-media
president represents a significant turning point for the Coalition. It reflects the
organization's goal of helping all citizens gain greater access to the operations of
government, and no one stands for this more than Rich McKee," Johnson said.
The California First Amendment Coalition was founded
in 1988 to promote and defend the public’s right to know. The organization’s
membership consists of journalists, attorneys and other citizens interested in keeping
government open to public participation and scrutiny.
McKee received a prestigious Torchbearer’s Award
from CFAC in 1995 for his diligence in litigating pro per lawsuits challenging the City of
Glendora's open meetings and public information practices. He joined CFAC’s board in
2000.
McKee, who holds a Master of Science in Organic
Chemistry from CSU Long Beach, has been a Professor of Chemistry at Pasadena City College
since 1975. During his tenure at PCC he has served as Parliamentarian of the Academic
Senate and Chair of the College’s Personnel Committee.
McKee and a group of open government advocates are
currently promoting “Sunshine” policies to Southern California cities and local
districts with some success. These local policies go beyond the minimum requirements of
state open government laws to ensure openness and to prevent misunderstandings. The City
of La Verne and a water district have adopted such policies and other jurisdictions are
mulling over the idea.
In 1997, McKee brought a successful lawsuit against
Chino Unified School District for holding secret meetings where the school board
negotiated and executed a buy-out agreement to remove its superintendent.
In 1998, McKee obtained a court order forcing his own
college and its Sabbatical Leave Advisory Committee to end its secret meetings and make
previously confidential applications for sabbatical leaves open to public scrutiny.
In 1999, McKee's lawsuit against the City of
Claremont and the California Joint Powers Insurance Authority resulted in the court
ordering these agencies to release a secret settlement agreement, which had ended a
federal civil rights lawsuit brought against them.
In 2000, McKee joined forces with the Los Angeles
Times and the Davis Wright Tremaine law firm in legal actions against Three Valleys
Municipal Water District. McKee's pro per lawsuit garnered an order forcing the district
to remedy its Brown Act violations by enacting a "Sunshine Ordinance."
Then Davis Wright Tremaine, representing The Los
Angeles Times and McKee, obtained another court victory forcing the district to release
the results of an employee harassment investigation and to pay more than $36,000 in
attorney fees.
In November, McKee filed an open government lawsuit
against the City of Sierra Madre that yielded an admission by the City that it had
violated the Act and a commitment it would not repeat the violation in the future.
Still pending is a suit McKee filed recently against
the Orange Unified School District alleging illegal closed sessions regarding real estate
negotiations.
To arrange for an interview with Richard McKee,
please contact the California First Amendment Coalition at (916) 974-8888 or through
e-mail at CFAC@CFAC.org .
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CFAC
COUNSEL AMONG PANELISTS ON WAR COVERAGE (10/29/01)
CFAC General Counsel Terry Francke will join three other
panelists this Thursday evening, November 1 in San Francisco in discussing how journalists
can overcome lack of access and disinformation in covering foreign and domestic aspects of
the new war on terrorism. Other participants in the program, presented by the Northern
California chapter, Society of Professional Journalists, include:
Phil Bronstein, executive editor of the San Francisco
Chronicle. Bronstein began his career reporting about the conflict in the Middle East and
went on to become a finalist for the 1987 Pulitzer Prize for his coverage of the fall of
the Marcos regime in the Philippines. Among other issues, he will discuss how to contend
with the news management strategies of the Pentagon and other federal agencies, as well as
his experience managing a newsroom during military conflicts.
Terry Francke, general counsel of the First Amendment
Coalition, which promotes and defends the laws protecting freedom of information and
expression. Francke will give an overview of changes in access laws throughout the nation
and help reporters know their rights.
Serif Turgut, reporter for ATV Turkey, who has
covered Bosnia, Kosovo, Chechnya, Algeria, northern Iraq and Belgrade. Turgut will tell
the story of her own challenges covering the news in the middle of the NATO air strike in
Kosovo and other war zones.
Dara Williams, director of News Watch, a project
dedicated to diversity in journalism. She worked 10 years as a reporter for the Associated
Press in the San Francisco, Los Angeles and San Diego bureaus. Dara brings to the panel an
expertise in finding sources off the beaten track, as well as her philosophy that going
beyond the usual sources is imperative for accuracy in journalism.
The moderator will be Ted Glasser, director
of the Graduate School of Journalism at Stanford University and an expert on ethics in
journalism. The program will be held in the Marines Memorial Club, 609 Sutter (at Mason)
beginning with cocktails at 6:30 and panel discussion at 7:30.
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HELP
CFAC CITE GOOD/BAD OPEN GOVERNMENT EXAMPLES (10/22/01)
Nominations are invited for the California First Amendment
Coalition's Beacon and Black Hole awards given in recognition of the best and ugliest
examples of open government in California during calendar 2001. The awards will be
announced in early 2002 in conjunction with a CFAC report on the state of open government
in California.
Beacon awards are given to individuals or organizations that
have done exemplary work in the area of keeping government open to public participation
and scrutiny. Past awards have been given to journalists, civic activists, and government
officials who have gone above and beyond he norm to assure government transparency. Last
year, Beacon awards were given to six individuals, a newspaper and a grassroots citizen
organization. Among the Beacon award winners in 2000 were a newspaper publisher who went
to jail rather than reveal a confidential source, a whistleblower who exposed the
unethical actions of former state Insurance Commissioner Chuck Quackenbush, and a man who
single handedly negotiated with 80 local agencies to lower public record duplication
costs.
Black Hole awards are given to individuals or
government agencies that have acted to thwart public participation in government or access
to meetings or public records. The Black Hole award gets its name from a heavenly body
that not only emits no light but also tends to swallow nearby sources of illumination.
Last year's Black Hole awards went to the cities of Claremont and Inglewood and officials
in San Bernardino County. All were cited for their "blatant disregard" for open
government and First Amendment laws.
CFAC has been making the awards since 1995. Among the
first to receive the awards was the late Congressman John Moss, father of the federal
Freedom of Information Act; veteran CBS News correspondent Daniel Schorr, who refused to
reveal confidential sources for stories relating to the Watergate scandal; and San Mateo
Superior Court Judge Quentin L. Kopp, who as a state Senator introduced and saw passage of
more open government legislation than any other lawmaker in the state's history.
Send nominations for the best and worst examples of
open government to CFAC@CFAC.org or by mail to CFAC, 2701 Cottage Way, Sacramento, CA
95825-1226. Please be sure to send documentation for your nomination as well as contact
information for yourself and the individual or organization being nominated. Deadline for
all nominations is Dec. 1.
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TWO WRITERS SHOW BELIEF IS FIRST
IN THE FIRST AMENDMENT (10/22/01)
In recent days two contributors to the New York Times remind us
why, of all the fundamental rights protected in the First Amendment, freedom of belief has
logical and historical priority alternative we are now seeing revived.
Andrew Sullivan’s "This Is a Religious War"
appeared in the October 7 edition of the New York Times Magazine, available in libraries
or by an on-line order from . Sullivan observes: "Following Locke, the founders
established as a central element of the new American order a stark separation of church
and state, ensuring that no single religion could use political means to enforce its own
orthodoxies. We cite this as a platitude today without absorbing or even realizing its
radical nature in human history -- and the deep human predicament it was designed to
solve."
Alan Wolfe’s much briefer October 14 op ed
piece, "The God of a Diverse People," concludes, "The Taliban and Osama bin
Laden wage war against us because they embrace religious governance in the political
sphere while allowing individuals no religious choice. That use of religion has resulted
in a totalitarian society that cannot countenance any deviation. The war now going on
between Americans and the forces of Osama bin Laden is not between belief and nonbelief.
It is instead about two different ways of believing, only one of which allows for
individual conscience and freedom. The refusal of the other to make that allowance is what
makes terrorism against nonbelievers possible."
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CFAC
SIGNS ON NATIONAL PLEA FOR ADEQUATE COVERAGE RULES (10/15/01)
The California First Amendment Coalition is adding its name to
others seeking a relaxation of military and other limits on war reporting.
The open letter to President Bush, the Congress and Pentagon
officials, to be formally released later this week over the signature of a wide variety of
leading national press groups, provides the first systematic list, in effect, of obstacles
reporters and photographers have been encountering in facing the practical task of showing
and telling Americans how the "war against terrorism" is actually playing out.
It reads as follows.
"In light of the terrorist attacks on September
11, the role of the press in informing the nation about public safety concerns and the
military, diplomatic, law enforcement, and intelligence actions of its government will be
tested in novel and profound ways. As organizations representing reporters, editors, and
publishers nationwide, we write to provide the Administration and Congress with steps that
we believe are essential for the government to take to ensure that it honors its
obligations to the public under the First Amendment.
"A free and autonomous press is as central to
the preservation of democracy as is a strong military. Indeed, news organizations have a
distinguished history in this country of providing the public with essential information
during times of warfare and national crisis information that may also be useful to
government officials. Journalists have handled knowledge of troop movements and
deployments in a responsible manner during past conflicts, just as they have maintained
the confidentiality of domestic law enforcement operations. Military public affairs
guidelines themselves acknowledge that the dissemination of timely and accurate
information concerning combat operations serves the interests of the U.S. armed forces.
"During the Persian Gulf War, however, the
Department of Defense inhibited news coverage of combat operations by forcing reporters
and photojournalists into small pools controlled by military officials and attempted to
exercise editorial control over news content. The Pentagon and the news media subsequently
reached an accord in 1992 regarding coverage of military campaigns that recognized that
open and independent reporting would be the norm for such coverage.. With combat
operations now underway in Afghanistan and possibly developing elsewhere, it is time to
make good on that guarantee.
"Additionally, because this is a crisis on
American soil as well as overseas, involving law enforcement and local public health
services in addition to the armed forces, information on domestic operations will be as
relevant and critical to the public as that on military activities.
"President Bush and other national leaders have
signaled that incursions against terrorist networks will differ from conventional warfare
in that they will involve significant covert action, both on international and domestic
fronts. We do not deny that secrecy has a place in these operations. The government should
protect information as necessary and only for as long as necessary to protect
national security. Overclassification dilutes the ability of agencies and others to
determine what truly needs protection. It inhibits government officials from communicating
effectively, especially if they face threats of criminal prosecution for even harmless
disclosures.
"Journalistic scrutiny of the war on terrorism
and publication of dissenting viewpoints are not signs of disloyalty to the nation, but
rather expressions of confidence in democratic self-government and fulfillment of the
First Amendment function of holding government accountable. Such scrutiny does not
diminish respect for the victims of terrorism or the privacy interests of their families.
One overarching principle that must guide government-press relations throughout this
difficult period is that decisions about what to publish, including the airing of
statements issued by avowed enemies of the nation, must ultimately rest with publishers
and broadcasters, not with government officials.
"With the nation having confronted for the first
time since the Civil War widespread violence and loss of life within its own borders
and continuing to face ongoing threats the American public is in urgent need of
reliable news. The abrupt removal of information from Internet websites maintained by
federal agencies, for example, which has picked up pace in recent weeks, defeats public
confidence in the openness of its government.
"Recognizing these principles and the
extraordinary circumstances in which the country finds itself, we urge government leaders
to take the following immediate and long-term actions. Most of the immediate steps involve
coverage of military operations; many of the long-term ones concern protection of our
liberties at home. We recognize that as the situation changes, this list will evolve with
it.
"The government should promptly:
" -- Reaffirm the 1992 Pentagon guidelines on
coverage of combat operations, including the commitments to 1) provide journalists with
access to all major military units and to special forces where feasible, 2) allow news
organizations to use their own communications systems to file reports, and 3) utilize
press pools not as a standard device but only when specific circumstances so require, such
as when military action is conducted in remote areas;
" -- Activate pool coverage of combat operations
if that is, under current circumstances, the most likely method of putting reporters close
to such operations;
" -- Embed reporters in combat situations with
troops whenever practicable and consistent with security considerations, as such methods
of placing reporters in the field may provide a viable alternative to pool coverage of
conflicts in certain circumstances;
" -- In consultation with representatives of the
news media, establish a clear set of military security ground rules for anti-terrorism
initiatives in Afghanistan and elsewhere;
" -- Work with the news media to ensure that
uplink capabilities with adequate bandwidth exist to allow information to be transmitted
in real-time or at least with some immediacy from military theaters of operation
back to the American public;
" -- Prohibit military officials from engaging
in prior security review of news reports;
" -- Exert pressure on this nation’s allies
and other foreign governments to grant visas to U.S. journalists wishing to cover military
and diplomatic events as they unfold overseas and impress upon foreign governments that
threats against journalists or efforts to censor their work are illegitimate; and
" -- At home, lift in its entirety the
nationwide ban on flights by helicopters or other aircraft owned or leased by news media,
in a manner consistent with public safety, and curtail indiscriminate obstructions to
newsgathering and photojournalism, including any such barriers put in place solely in the
name of protecting personal privacy.
"Over the course of the conflict, however long
its lasts, the government should also:
" -- Establish a joint information bureau in any
area where significant military operations occur;
" -- If security review of news content is
undertaken, 1) conduct such review as quickly as possible, as close to the source of news
as possible, and only for the limited purpose of ensuring that troop movements and
operations are properly protected; 2) reject across-the-board rules stipulating that
certain information may never be published under any circumstances, and 3) examine news
content in context and on a case-by-case basis by taking into account the actual dangers
presented by each individual story;
" -- Release to the public as soon as possible
information concerning the identities, charges, and court proceedings against persons
arrested and detained in the United States as suspected terrorists and material witnesses
pertaining to the September 11 attacks;
" -- Make available on a prompt basis the
identities of all injured or deceased victims of terrorism against the United States, as
well as the identities of any U.S. military persons who are casualties of the
nation’s war on terrorist networks;
" -- Refrain from using journalists as tools to
gather intelligence and maintain the current policy forbidding intelligence agents to pose
as reporters, as such practices compromise the relationships between the press and its
sources and put the lives of journalists at risk;
" -- Provide, as called for by the Electronic
Freedom of Information Act of 1996, expedited review of Freedom of Information Act
requests submitted by news organizations concerning terrorists attacks or threats against
American interests and the nation’s response thereto; and
" -- Allow media organizations and members of
the public to observe or photograph evidence of terrorist assaults located on public
property, as long as doing so does not interfere with rescue and clean-up workers."
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UPDATES
& OTHER BRIEFS (10/8/01)
--San Francisco Says No to
Internet Filtering Software
On October 1, reports the Electronic Frontier Foundation,
"the San Francisco Board of Supervisors became the first municipal legislative body
in the world to pass an ordinance prohibiting the use of Internet blocking softwareSon
Internet access terminals" run by the city at libraries or elsewhere. Reason: such
technology is so indiscriminate (at least so far) that it’s found to "regularly
block access to useful and constitutionally protected information." For a report
released just last week by the National Coalition Against Censorship, coincidentally
concluding that "Internet filers are hopelessly flawed," see NCAC_Issues
A late amendment to the San Francisco ordinance
allows filtering on units primarily or exclusively set up for use of children under 13.
Earlier, the San Francisco Public Library risked losing about $20,000 in funding rather
than accept federal strings requiring filtering. The Children's Internet Protection Act,
passed in December 2000, requires libraries to install the software by July 1, 2002. The
funding loss to San Francisco’s library would be a tiny portion of its $50 million
annual budget. The American Library Association (ALA) and the ACLU have sued to overturn
the federal law, saying it violates the First Amendment. A copy of the ordinance is
available at: EFF_Censorship
--Site Lists Military Studies
on Coping With Media Coverage
If you had any doubt that U.S. military strategists consider
news coverage as a very serious element of how operations must be planned and executed, an
online database of unclassified studies should prove enlightening. The Scientific and
Technical Information Network (STINET) of the Defense Technical Information Center (DTIC)
provides access to numerous studies with titles like "The Media Factor: An Essential
Ingredient to Operational Success"; "Manipulating the Media for Operational
Deception"; "Casualty Aversion: Dispelling the Myth"; and "The War of
the Tiger and the Elephant: When the Military and the Media Collide." The listings
provide an abstract and a way of ordering hard copies (typical price $7) but do not
display the text. The search engine is at , and instructions provided by one observer
suggest typing into the descriptors field "military operations" AND media, and
into the date fields 1997-01-01 2001-12-12, and then hitting search.
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UPDATES
& OTHER BRIEFS (9/24/01)
--Freedom Forum, Hit by Stock
Losses, Rolls Back Activities
Investment losses involving about 30 percent of its $1
billion endowment have led the Freedom Forum to close four international offices as well
as its First Amendment Center in New York, whose operations will be shifted to the
organization’s new Washington, D.C. headquarters. Freedom Forum , conducts programs
on First Amendment issues as well as newsroom diversity and international press
development, and operates the Newseum. It was established in 1991, succeeding the Gannett
Foundation, and endowed with a large block of stock of the Gannett Company, a newspaper
chain that also publishes USA Today. According to chairman and chief executive Charles
Overby, the organization has lost $300 million in assets. He said priority for coming
years will be moving its headquarters from Arlington, Virginia to a new $100 million site
on Pennsylvania Avenue in Washington, D.C., which will also include offices, a restaurant,
retail space, condominiums and the Newseum. Meanwhile many if not most of its 285
employees are being given a buyout opportunity this month prior to significant staff
reductions.
--Anti-Terrorism Act's Bite
Into Civil Liberties Being Limited or at Least Slowed Down
The Electronic Freedom Foundation (EFF) reports receiving a
set of proposed amendments to the Anti-Terrorism Act (ATA) that "reflects
negotiationsSwithin the House Judiciary Committee, from the perspective of the
Democrats." The Tech Law Journal reports that the committee "is likely to mark
up the bill on either Wednesday or Thursday. Sen. Patrick Leahy, Chairman of the Senate
Judiciary Committee, may delay the bill even longer." The Electronic Privacy and
Information Center’s "Analysis of Provisions of the Proposed Anti-Terrorism Act
of 2001 Affecting the Privacy of Communications and Personal Information" is
available at: EPIC_TerrorismA
summary of the proposed amendments being negotiated is posted at EFF_Privacy
.
One deep threat seen by EFF is that computer system
hacking utterly unrelated to terrorism would, under the ATA, be met with draconian
penalties. The San Francisco-based foundation warned last week that the bill as introduced
"includes provisions that dramatically increase the penalties for acts that have no
apparent relationship to terrorism. For instance, the bill would add low-level computer
intrusion, already a crime under other laws, to the list of federal terrorism offenses,
creating penalties of up to life imprisonment, adding broad pre-conviction asset seizure
powers and serious criminal threats to those who Omaterially assist or Oharbor individuals
suspected of causing minimal damage to networked computers."
"Either you are with us or you are with the
terrorists" that’s the message being sent to foreign governments, President Bush
told Congress and the world last week. But is it also the warning to be conveyed to the
U.S. press? Told that combat theater presence allowed in the Persian Gulf campaign a
decade ago itself far more restrictive than at any time since World War II would not
be permitted this time out (no press on the ground with American forces, or in Navy ships
in the area) several major news organizations were to meet with Pentagon officials soon to
learn details of the proposed ground rules. As for what can be reported and how without
provoking official ire, it should remembered that CNN came in for considerable criticism
for covering the Gulf War from Baghdad, and noted that only days ago, the Voice of America
itself was criticized by the State Department for including statements from a Taliban
leader in its coverage of the conflict broadcast into the Middle East. For an insight into
how specialists in military propaganda view the task ahead, see a study paper on
Information Operations (IO) prepared for the journal Aerospace Power Chronicles entitled
"Opportunity Lost: Public Affairs, Information Operations, and the Air War against
Serbia."
#pounder A sample theme: "Everyone --
commanders, IO specialists, and public affairs officers -- needs to understand public
information is a battle space that must be contested and controlled like any other."
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CFAC
URGES LAWMAKERS TO GO SLOW ON ANTI-TERRORISM BILL (9/17/01)
Kent Pollock, executive director of the California First
Amendment Coalition, cited civil liberties concerns in his e-mail.
The House Judiciary Committee is set to mark up the Bush
Administration’s Anti-Terrorism Act of 2001 in a hearing tomorrow morning, September
25, with but a single witness: Attorney General John Ashcroft.
The Act’s proposed set of legislative
amendments, according to the Electronic Privacy and Information Center (EPIC),
"address issues that are complex and implicate fundamental constitutional protections
of individual liberty, including the appropriate procedures for interception of
information transmitted over the Internet and other rapidly evolving technologies."
(EPIC’s summary analysis of the legislation is found at Terrorism_Analysis
Because of the complexity and risk of possible
overreach in law that may stay on the books long beyond the current crisis and be used in
ways hard to predict with certainty but easy to imagine as abuses, civil liberties groups
that have more questions than answers about the Act are urging a careful and wide debate
as part of the process.
Pollock’s message to the committee members
states:
"When President Bush declared that freedom in
our country would not be diminished by the evil acts of Sept. 11, he was appropriately
stern and sincere. However, the administration's proposed Anti Terrorism Act of 2001,
while no doubt the result of good intentions, does just that. History is replete with
examples of liberties sacrificed during times of crisis that we later come to regret...the
Alien Sedition Act, Japanese-American internment, FBI surveillance of anti-Vietnam war
demonstrators and civil rights leaders, etc.
"It is critical that consideration of the Anti
Terrorism Act of 2001 be delayed until the Judiciary Committee holds comprehensive public
hearings on the serious civil liberties issues the proposal implicates. I understand your
committee is currently planning to proceed to mark-up after testimony from only the
Attorney General and a short, informal 'briefing' on the issues that raise constitutional
concerns.
"Please, please, please...delay consideration of
the bill until its impact on civil liberties can be carefully and fully considered."
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LIST:
WEB SITES FOR NEWS, IDEAS AND HELP FOR THE DURATION (9/17/01)
This is the beginning of a list to keep on hand for reference on
a variety of free speech, free press and civil liberties topics.
CFAC members aware of other relevant sites are encouraged to
report them by reply.
Free Speech
The American Civil Liberties Union,ACLU, whose first reaction was to announce its commitment
to "work with our nation's leaders to help the nation achieve its goal of protecting
the security and freedom of all people in America" at ACLU_News.
There are local sites also for ACLU units in Northern
ACLU_NC and Southern ACLU_SC California, as well as San Diego and Imperial
Counties ACLU_SD.
The Freedom Forum First Amendment Center, FreedomForum, which covers speech, press and
secrecy issues and currently, for example, reports that "First Amendment advocates
fear erosion of rights in aftermath of attacks" at FreedomForum_Fears.
The Electronic Frontier Foundation, EFF, specializing in free speech on the Internet, which
indicates it will have a statement this afternoon on its concern that "another
potential victim of terrorism acts could be your privacy and other liberties, even as
politicians call the atrocity an attack on freedom."
Free Press
The Society of Professional Journalists, SPJ, which has already put up a special page of veteran
ethics experts’ advice for news professionals in reporting about the many dimensions
of the crisis.
The Reporters’ Committee for Freedom of the
Press, RCFP, which carries resources and stories on
journalist’s obstacles in covering the news, e.g. the report, "Alabama senator
won’t quit on OOfficial Secrets Act", RCFP_News.
The American Society of Newspaper Editors, ASNE, which recently collected editorials nationwide on
why an Official Secrets Act is a bad idea -- ASNE_News
The Radio-Television News Directors Association, RTNDA, which provides a form for broadcast newsrooms to
submit in sharing how they covered the attacks and their aftermath, RTNDA911
Freedom of Information
The Secrecy in Government Project of the Federation
of American Scientists, FAS, which tracks
federal efforts to keep information from the public and press and collects press accounts
of secrecy-related actions to the terrorist crisis at FAS_News.
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PULLEN
NAMED TO CFAC BOARD (3/30/01)
Rick Pullen, dean of the College of Communications at California
State University, Fullerton, and an author of books on media law, has been named to the
California First Amendment Coalition's board of directors.
Pullen has received numerous awards and honors for his efforts to protect and defend the
public's right to know. His research and teaching expertise lies in the areas of mass
communications law and ethics, and he served as co-chair of last year's CFAC Assembly,
which was held at his school.
Under Pullen's leadership, the Cal State Fullerton School of
Communications has grown rapidly into one of the most successful and popular programs in
the state. He joined the faculty of California State University, Fullerton, in 1973 after
receiving his Ph.D. in journalism from Southern Illinois University.
"Rick is a high-energy guy with a longtime
commitment to open government that will serve our board well," said Kent Pollock,
CFAC executive director. "The board is delighted to have a person with his
credentials as an ally and asset."
Pullen was once named California's
outstanding journalism professor by the California Newspaper Publishers Association and is
a member of three national honor societies as a result of his academic accomplishments.
He taught high school journalism for two years in
Portland, Oregon before pursuing his doctorate. His dissertation was a study of the
Supreme Court's interpretation of the First Amendment.
Pullen lives in Yorba Linda with his wife, Jill. He
has three children and two grandchildren.
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CFAC
LITIGATION FUND NAMED AFTER BERGHOLZ (3/23/01)
CFAC's board of directors, at its March 14
meeting, voted unanimously to name the organization's litigation fund the Richard Bergholz
Memorial Litigation Fund, honoring the newsman who died unexpectedly late last year.
"Dick always expected CFAC to lead the fight for
free press and free speech whenever they were threatened," said CFAC General Counsel
Terry Francke. "Naming our litigation fund after him is a wonderful testimony to his
stature as a newsman who never walked away from a fight for press freedoms. To the extent
that requires a readiness to go to court now and then, there's no better name than his to
invoke in building the resources to win."
Bergholz made a generous contribution
himself to the CFAC litigation fund two months before his death, and his family decided to
ask mourners to contribute to CFAC in lieu of other remembrances at his funeral. As a
result, CFAC received more than $1,500 and placed the money in the litigation fund.
Contributions to the Richard Bergholz Memorial
Litigation Fund can still be sent to CFAC at 2701 Cottage Way, Suite 12, Sacramento, CA
95852.
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CFAC
OPPOSES BILL EXEMPTING BIDS FROM BROWN ACT (3/23/01)
CFAC's Board of Directors adopted a
unanimous resolution at its March 14 meeting opposing AB1021 that would allow business
improvement districts to operate outside the requirements of the Brown Act. The
legislation would nullify a recent appellate court victory compelling the The Hollywood
Entertainment District II Business Improvement District to hold its meetings in public and
abide by the state's open meetings law.
Earlier this month, the California Court of Appeal,
in a rare rehearing, restated in more emphatic detail its earlier conclusion that the
board of a nonprofit group formed to oversee a business improvement district is subject to
the open meeting laws.
In Epstein v. Hollywood
Entertainment Dist. II Bus. Improvement Dist., filed November 30, 2000, the California
Court of Appeal for the Second District held that, as a nonprofit corporation whose
establishment was traceable to the Los Angeles City Council, the defendant board of
directors was subject to the open meeting requirements of the Ralph M. Brown Act.
AB1021, with a provision sponsored by the defendants
designed to surgically remove business improvement districts from the reach of the Brown
Act, would provide in part that a management district plan adopted by a city for a
business improvement district "shall not be a state or local government agency nor
shall its board of directors be considered public officials."
The bill, should it become law, would eliminate any
public scrutiny of the board, which would then function without accountability to the
property owners within the BID.
"This case is a classic illustration of
government bodies not appreciating the value of public scrutiny of their actions,"
wrote CFAC Executive Director Kent Pollock in a letter to CFAC also pledged its full
support in a letter to a The Hollywood Entertainment District II member who has worked to
bring the district's operations into the open. "Please be confident that you have the
full support of the California First Amendment Coalition in your endeavor to protect the
public's right to know."
The Assembly Local Government Committee has not yet
set a hearing on the bill. Tom Newton, general counsel of the California Newspaper
Publishers Association, is coordinating opposition to the bill. For further information,
Newton can be reached via tom@cnpa.com.
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UPDATES
& OTHER BRIEFS (3/23/01)
--Judge Orders Full View
of Massie Execution
The federal judge presiding in CFAC's
lawsuit to keep San Quentin executions fully visible to official witnesses has ordered
that the entire process be open to them during the scheduled March 27 lethal injection of
Robert Lee Massie. U.S. District Judge Vaughn Walker, after a full trial on the question a
year ago, concluded last summer there was no evidence supporting the claim of San Quentin
authorities that the correctional officers on the "death team" would be
recognized by witnesses and identified to the outside world and other prisoners, leading
to retaliation. That risk, argued Warden Jeanne Woodford and the Department of
Corrections, justifies keeping all procedures behind the drapes of the death chamber until
the condemned is strapped down to the gurney and intubated. In view of the impending
Massie execution the state defendants asked Walker to stay his order for full exposure to
witnesses until the U.S. Court of Appeals for the Ninth Circuit, to which the state has
appealed, renders a final decision later in the year. On March 16 Walker refused to stay
the order for open procedure, concluding in effect that his findings of fact-that the
state's security concerns are baseless-will be upheld by the Ninth Circuit. Between now
and March 27, the Ninth Circuit itself could stay Walker's order, and that is what the
government defendants are now seeking.
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--Violent Video Games as
Harmful to Minors
The increasing tendency to call violent
video games obscene or pornographic threats to young minds in their formative stages is
thoughtfully critiqued in a recent decision by one of the most closely watched judges on
the federal appellate bench. Judge Richard Posner of the Seventh Circuit is often
mentioned as a likely nominee by President Bush to fill a Supreme Court vacancy. In a unanimous
decision filed March 23, Posner writes for a unanimous three- judge panel of the
Seventh Circuit granting a preliminary injunction against enforcement of an Indianapolis
ordinance restricting young people's access to matter defined as being "harmful to
minors." The ordinance would regulate video games engaging the player in animated
graphic violence in the same way sex magazines and videos are regulated in California (and
other states) today: confining them to a corner or alcove of a retail shop, behind a
barrier that a minor can cross only when accompanied by an adult. Posner's basic
rationale: While actual (photographic) depictions of decapitations, mutilations and other
bloody mayhem might be considered under a "harmful matter" standard comparable
to graphic depictions of sex-not obscene for adults, but too raw to leave open to immature
perceptions-the video game violence is virtual or "literary." It uses dynamic
pictorial media to allow players to participate in virtual combat with mythical menaces
just the fodder of adolescent daydreamers of whatever age. And while the presentation is
interactive, Posner says, that's true of the best literature as well.
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--Court: Work Brown Act
Problem Out
Irvine Valley College ethics professor Roy
Bauer and his employer, a community college district board that he successfully
sued-twice-for violating the state's open meeting law, are under court order to tape
record its closed sessions for two years to guard against Brown Act violations.
The Fourth District Court of Appeal order
is aimed at bringing settlement to Bauer's most recent case. In that litigation, Orange
County Superior Court Judge Tully H. Seymour said in January 1999 that the record
supported the conclusion that "the board engaged in a continuing course of conduct
that appears to the court to reflect a total disregard for the requirements of the open
meeting law."
The most recent violation, he concluded,
involved closed-session discussions of the restructuring of district governance. Judge
Seymour ordered the board to begin tape recording its closed sessions for two years. If
the parties can't agree on a settlement, that sanction still hangs over the board's head.
Back to Top
--Putting Kids in
Speech-Free Zones
Senator Michael Machado (D-Linden) has
introduced a bill to keep anti-abortion activists from getting too close to public school
pupils and students. AB 862 has been assigned to the Senate Judiciary Committee, with no
hearing date set so far. It would add Section 32214 to the Education Code, to read:
"No person shall knowingly approach a pupil within eight feet of that pupil, unless
the pupil consents, for the purpose of passing a leaflet or handbill to, displaying a sign
to, or engaging in oral protest, or counseling with the pupil in the public way or
sidewalk area within a radius of 100 feet from any entrance door to a public school."
The bill does not specify anti-abortion counseling as the target speech, but comments from
a Machado aide prior to introduction of the bill made it clear that visits by
right-to-life advocates to high school campuses to provide anti-abortion advocacy and
literature had inspired the bill. Last August a Placer County Superior Court judge ruled
that four members of the Sanctity of Human Life Network (SOHLNET) seeking access to the
Rocklin High School campus to distribute literature opposing abortion and supporting
sexual abstinence were properly excluded. Judge John L. Cosgrove reasoned that the speech
rights of the applicants were not abridged since the campus was not a public forum. The
school district defendant had also pointed to the conduct of other SOHLNET members
picketing on the public sidewalk along the school's frontage. The district called the
near-campus behavior disruptive and risking a traffic jam as well as violent
confrontations between some picketers, shouting "Repent," and some students,
answering with obscenities.
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--Public Funds Used to
Buy Public Ignorance
Recent press stories beginning with those
in The Sacramento Bee have exposed the fact that a woman complaining of sexual harassment
by Senator Richard Polanco (D-Los Angeles) was paid $117,200 by the Senate's housekeeping
committee in a quiet settlement that carefully avoided naming Polanco. While the press
learned what it did through other public records, the Senate Rules Committee's 1998
settlement with former staff member Karri Velasquez contained what has become a standard
element, one forbidding Velasquez from discussing either her complaint or the settlement
with anyone. The sanction if she does so: loss of part or all of the settlement payment.
Not only is this practice lawful, making the mandatory release of settlement records much
less informative than one might think (they don't contain that much information), but no
office or department of the state has any handle on how much state or local agencies pay
out in litigation settlements, or to whom and why. As quoted in a March 19 story in the Los Angeles
Times about this phenomenon, Senator Tom McClintock (R-Thousand Oaks) said: "It
has been a concern of mine for many years that it is much easier for the bureaucracy to
settle a case than to defend it [in court] Without legislative and public review, there is
no way to know to what extent the public's right to be defended against such claims has
been discharged" by a bureaucracy that is "large and pervasive and independent
from oversight."
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--New Bills to Watch
Closed Family Law Files -- SB 566 by
Senator Bill Morrow (R-Oceanside), to get its first hearing in the Senate Judiciary
Committee on April 4, would add Section 216 to the Family Code, to read:
"(a) The files of the superior court relating to proceedings for dissolution of
marriage, nullity of marriage, and legal separation of the parties pursuant to Division 6
(commencing with Section 2000) and actions brought under the Uniform Parentage Act (Part 3
(commencing with Sec. 7600), Div. 12) are confidential and may be inspected only by the
following:
(1) A party to the proceeding.
(2) An attorney of record for a party to the proceeding.
(3) Any person possessing an authorization signed by a party to the proceeding that was
signed before a notary within 30 days of the presentation of the request to the party.
This authorization shall only permit access to documents signed by the authorizing party.
(4) A federal or state law enforcement officer in the pursuit of his or her duties.
(5) Court personnel in the performance of their duties.
(6) Any person designated in a court order.
(b) The clerk of the court shall only allow access to the court files described in
subdivision (a) to those persons designated in subdivision (a).
(c) Prior to issuing a court order for access to the records described in subdivision (a),
the judicial officer shall determine that access will not be detrimental to the well-being
of any minor child of a party. In no event shall a court order provide for public access
to any of the following documents in the court files described in subdivision (a):
(1) Reports or recommendations of a counselor with family court services or the
conciliation court.
(2) Psychological or custodial evaluations prepared for any litigation.
(3) Income and expense declarations.
(4) Copies of federal or state income tax records.
(5) Schedules of assets and debts.
(6) Property declarations.
[Follow
the bill's progress]
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--Help the
Information-Seeker
AB 1014 by Assemblyman Lou Papan
(D-Millbrae) has been assigned to the Assembly Government Organization Committee but not
yet set for hearing. It would add to the California Public Records Act several provisions
to make the information requesting process more helpful to the citizen, including
requirements that:
-- "When a member of the public requests a copy of public records, or contacts a
public agency about making a request for public records, the public agency, in order to
assist the member of the public make a focused and effective request that reasonably
describes an identifiable record or records, shall do all of the following:
" (1) Identify records and information that may be responsive to the request.
" (2) Describe the information technology, environment, or physical location in which
the records exist.
" (3) Provide suggestions for overcoming any legal or practical basis for denying
access to the records or information sought."
-- If an agency decides to release information that it has determined to be public,
"the agency shall state the estimated date and time when the records will be made
available."
[Follow
the bill's progress]
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UPDATES & OTHER BRIEFS (3/9/01)
--OCEANSIDE TOLERATES INTOLERANCE: A city council member's call for "zero tolerance" for bigoted
remarks at any function in which the City of Oceanside participates was rejected by the
council at its March 7 meeting, according to a report in the San Diego Union-Tribune.
After hearing an African American pastor chastise "noncitizens" and
"immoral" gays for trying to exploit the civil rights movement for their own
purposes, Councilwoman Esther Sanchez called for a crackdown on speech insulting to groups
based on their ethnicity, national origin or sexual orientation. She had assumed that the
rally she attended at a middle school to mark Martin Luther King, Jr.'s birthday on
January 13 was a city-sponsored event, but learned that it was organized by the local
chapter of the NAACP. Sanchez, whose mother is an immigrant, is also an NAACP member. Her
request to City Attorney Duane Bennet led him to point out that the city already has a
zero-tolerance rule covering its employees' remarks, but cannot extend it to the populace
as a whole. Eight of nine speakers agreed, and backed the Rev. Barry Cook's right to
express himself as he did. Cook himself told the council that the zero tolerance issue had
"done more to unify the ministers and the believers." But the ninth speaker
dissented from the note of solidarity among shepherds and flock. Said Nadine Scott,
"I am a Zen Buddhist. What I'm feeling in this room is intolerance. This intolerance
hurts me. There is not just a Christian God in Oceanside."
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UPDATES & OTHER
BRIEFS (2/23/01)
--CFAC ATTITUDE
SHOWCASED: Two representatives of the California
First Amendment Coalition will soon be explaining their biases for sunshine to city and
other local officials from throughout southern California. The occasion is a pair of
workshops for the governmental clients of Best Best & Krieger, the Riverside-based law
firm whose attorneys provide legal counsel to a large number of local government agencies.
"Governing Openly and Publicly" will be offered free to elected and staff
officials (not necessarily BB&K clients) on Friday, March 16 at the Ontario Convention
Center and repeated Saturday, March 23 at the Anaheim Hilton. Morning programs on the
"pitfalls and opportunities" under the Brown Act, the new disclosure mandates
for electronically stored public records, and latest developments under the conflict of
interest and financial disclosure laws will be capped by a lunch at which Richard McKee
and Terry Francke will present "A Challenge to Your Perception of the Brown
Act." McKee, a member of CFAC's board and a successful non-lawyer litigator under the
public access laws, is a chemistry professor at Pasadena City College. Francke is CFAC's
general counsel. If you are not a government official or employee but would like to
attend, you should call Kimberly Sharp at (909) 826-8388
and let her know you are a member of CFAC and expect to be on hand.
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UPDATES & OTHER
BRIEF (2/16/01)
--MARIPOSA BACKS OFF
FINGERPRINTING REPORTERS FOR TRIAL CREDENTIALS
In response to the protests by the
California First Amendment Coalition and several news organizations, the Mariposa County
Superior Court has dropped its insistence that journalists seeking credentials to cover
the Cary Stayner murder prosecution submit fingerprints to permit a criminal background
check. The court administrator also announced that the scores of reporters and
photographers who submitted their prints prior to the protest will be allowed to have the
information purged.
CFAC's letter pointed out in a letter to
the county counsel that the journalists who had permitted the checks as a condition to
being admitted to the courtroom might well have a basis for suing the county in a civil
rights action.
The county did not intend to do similar checks on
members of the public attending the trial, which would also be a violation of their
rights.
Citing case law that precludes such requirements for
attending court proceedings, CFAC's letter summarized: "In short, by requiring
background checks on reporters and not the general public, the county is imposing a highly
intrusive, utterly arbitrary invasion of privacy on professionals whose work is protected
from governmentally imposed burdens."
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UPDATES
& OTHER BRIEFS (2/9/01):
--CALLING MR. COOLEY: In November CFAC sent a "cure and correct" letter to the
head of the Los Angeles County Metropolitan Transit Authority" referencing a series
of unannounced phone conference meetings held by its board in the prior two months in
reaction to the transit strike. Also protested was the action taken in closed session
appropriating millions of dollars into an emergency strike fund, largely for public
relations expenses. CFAC received no response, and a week ago learned that the office of
MTA Board President Yvonne Brathwaite Burke could not find the letter, which had been both
mailed and faxed. CFAC's machine confirmed that the fax had been received at Burke's
office within minutes of its transmission. A clerical person could not explain the
situation but said a re-sent letter would be provided to Burke, and that one of her aides
would contact CFAC. None did. CFAC Executive Director Kent Pollock has now asked District
Attorney Stephen Cooley to look into the matter. Pollock's letter
--WELCOMING MR. WRIGHT: Jeff, that is, who walked out of jail in San Bernardino County
yesterday (February 8) after serving the final segment of a term to which he was sentenced
about a year ago. Wright was ordered behind bars for violating probation (from an earlier
conviction of disturbing a public meeting by talking out of turn) when, in a 1999 meeting
of a city council, he asked why his speech had been cut off. Wright's friends are hosting
a "Celebration of Freedom" toast and fundraiser from 6 to 9 p.m. Friday,
February 23 at the Sons of Italy, 9420 Sierra Ave. in Fontana. A $23 donation is asked to
help Wright, who is homeless, pay off miscellaneous debts. Why $23? Wright "has this
thing" about that number, says attorney friend Marjorie Mikels. The program includes
a showing of a video, "Speech Wars of San Bernardino," and will feature various
roast-type speeches. The latter, says the invitation, will be "strictly limited to
three minutes-with Mr. Wright doing the timing." Ms. Mikels asks RSVPs be sent to her
by February 16 at 201 N. First Ave., Suite 100, Upland 91786-6061.
--EPIC GRANT FOR LAW
STUDENTS: The Electronic Privacy Information
Center (EPIC) announces a new program for law students interested in public interest law
and the Internet. EPIC is a widely regarded civil liberties organization based in
Washington, DC. The group has participated in many of the foremost Internet cases,
including the litigation to strike down the Communications Decency Act, to protect the
freedom to use encryption, and to uphold the constitutionality of federal privacy laws.
Most recently, for example EPIC's freedom of information litigation produced key documents
about the FBI's Carnivore monitoring program and triggered a Congressional investigation.
The EPIC Internet Public Interest Opportunities Program (IPIOP) will work in association
with the recently established Samuelson Clinic at U.C. Berkeley's law school, Boalt Hall,
and other similar programs across the country. For more information e-mail info@epic.org.
--FOI-BASED FAITH: "Whatever else may be said about the Clinton era, the past
eight years have not been kind to those who believe the public's business should be
conducted in public. Restoring an appreciation in the nation's capital for the people's
right to know should be a top priority for the Bush administration." Who's calling on
the new folks in town to open the government up to observation? The Heritage Foundation,
that's who. For specific proposals and evidence that open government advocacy is not
solely a liberal franchise, see http://www.heritage.org/views/2000/ed122700.html.
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UPDATES
& OTHER BRIEFS (2/2/01)
--OPEN VOTE CODE: Kim Alexander of the California Voter Foundation has a Top Ten list of
caveats about online voting. Number 10: "One way to build public confidence in
computerized voting is to require voting software code be made public." She tells why.
--IRS PONDERS NONPROFIT NET
ACTIVITY: February 13 is the deadline to submit comments to
the Internal Revenue Service concerning its proposed "guidance" clarifications
on how use of the Internet may affect a nonprofit group's tax status. For example,
"Does providing a hyperlink to the website of another organization that engages in
lobbying activity constitute lobbying by a charitable organization?" There are
several other potentially consequential issues being considered. More
background and a vehicle for timely comment.
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NEEDED
ASAP: YOUR EXPERIENCE IN REQUESTING RECORDS FROM THE STATE (1/26/01)
What's your experience over the past two years in requesting
public records from agencies and offices of the State of California? CFAC needs this
information to cross-check an official state inquiry into how well Davis Administration
officials comply with the California Public Records Act. The official survey was promised
in Governor Davis's veto last fall of a key CPRA reform bill.
The governor's veto message for SB 2027 (Sher)
pledged to have his Secretary of the State and Consumer Affairs Agency, Aileen Adams (http://www.scsa.ca.gov) research and report on state
agency compliance with the records law. In implementing that assignment, members of Adams'
staff met this past week with representatives of CFAC and the California Newspaper
Publishers Association.
It was agreed that all parties at the meeting will
cooperate in drafting a questionnaire to all state agencies, asking them to record for a
set 60-day period all CPRA requests received by any means, as well as the responses. The
consensus was that asking for documentation of past requests might be hard to satisfy,
since many requests come in by phone or over the counter, without a writing, and if
granted probably are not logged.
But since agencies can be expected to be on
their best behavior in an overt test period, CFAC hopes to provide a realilty check by
assembling performance data from the past, at least as to written requests.
Accordingly, CFAC Executive Director Kent Pollock is
urging all CFAC members and anyone they know to mail or fax copies of any public request
letters sent to state (not local) agencies since January 1999, together with either the
written response or a note confirming that either the request was satisfied promptly and
completely or that no response was ever made.
"We need to make sure the state is provided with
examples of state agencies not following the intent of California's public records
act," Pollock said. "Otherwise, we're concerned that results of the state's
planned survey will be skewed and used to justify not altering the law."
Send faxes marked CPRA SURVEY to (916) 974-8880, or
mail, also marked CPRA SURVEY, to CFAC, 2701 Cottage Way, Suite 12, Sacramento, CA 95825.
If you can recall particulars of a phone or in-person request never documented in writing,
they are also welcome, and can be submitted by e-mail reply to this FLASH, also headed
CPRA SURVEY.
Comment: Governor Davis vetoed the Sher bill,
which would have allowed the attorney general to provide a prompt, free and authoritative
review of records access turndowns, ostensibly because of cost concerns. But at the time,
the state had never been more awash in cash, and it's tempting to conclude that Davis was
either in denial or out of touch with how easily records requests can by stymied. His
official survey should be educational, but needs to be supplemented with a sampling of how
his agencies respond to records requests when they're not being watched.
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CONTRIBUTIONS
TO CFAC IN MEMORY OF RICHARD BERGHOLZ TOP $1,400 (1/19/01)The California
First Amendment Coalition to date has received contributions honoring the memory of the
late Richard Bergholz totaling $1,405. The Bergholz family asked that such donations be
made in lieu of flowers. Bergholz, who died at age 83 on the day after Christmas, was a
founding member of CFAC's board after retiring as a senior political writer for the Los
Angeles Times.
The donors to date, in alphabetical order,
are Ben Cunningham, Seal Beach; Robert L. Flannes, Laguna Beach; Allen McCombs, Chino;
Richard McKee, LaVerne; Bryce Nelson, Pasadena; Carol Ann Nulk, San Jose; Warren Olney,
Marina de Rey; Mel Opotowsky, Riverside; Kent Pollock, Folsom; Rowland Rebele, Aptos; Paul
Weeks, Oceanside; Martin Weinberger, Claremont; and Gail Wesson, Hemet.
Back to Top
RICHARD
BERGHOLZ, LEGENDARY REPORTER AND CHARTER CFAC DIRECTOR (1/5/01)
Memorial services were held Thursday, January 4 in Pasadena for
Richard Bergholz, who suffered a fatal stroke in his home there December 26. Bergholz, 83,
was retired after a long reporting career culminating in nearly a quarter century covering
politics for the Los Angeles Times. He was also a founding member of the board of the
California First Amendment Coalition.
Bergholz is possibly best known as the
flinty, deeply skeptical reporter whose blunt and persistent questions could make public
officials and office-seekers sweat at news conferences but who also, according to those
who best knew him at the Times, would then write scrupulously fair stories, giving no hint
of any doubts he may have personally held about the politicians' worth.
George Skelton, a colleague who worked closely with
him for more than a decade as both editor and fellow reporter, recalled for the Times last
week that he still did not know whether Bergholz was a Republican or Democrat. "I
have no idea how he ever voted. And you certainly could not tell by his writing. He was as
tough on one side as the other,"said Skelton.
Just how tough is reflected in the common
perception of those who were in the room on that November 1962 morning at the Beverly
Hilton in Los Angeles, when Richard Nixon ended a rambling concession speech having
just lost the governor's race to incumbent Pat Brown with a bitter coda: "You
won't have Nixon to kick around any more because, gentlemen, this is my last press
conference..."
The general agreement was that Nixon was referring to
the Times, and most pointedly to the grilling attention of Richard Bergholz.
Among other public figures Bergholz covered closely
in his career were Pat Brown, Ronald Reagan, George Murphy, John Tunney, Jesse Unruh,
George McGovern. Tom Bradley and George Deukmejian. Perhaps the last was Matt Fong in his
1998 bid for the U.S. Senate. According to the Times, Bergholz, retired for more than a
decade, dropped in on a breakfast meeting held by the candidate and subjected him to a
quizzing much more penetrating than that of the working press on hand.
That was 60 years after Bergholz signed on with the
Associated Press in its Sacramento bureau, with stints on two newspapers already under his
belt. After Pearl Harbor he was a correspondent covering the Pacific and Asian theater of
war. Postwar jobs included those with the Glendale News-Press, the San Diego Evening
Tribune, the Los Angeles Mirror, and finally the Times in 1962.
After retirement in 1985, Bergholz stayed in touch
with former colleagues, working professionals and current political issues. One of several
time commitments was to the Los Angeles chapter of the Society of Professional Journalists
(SPJ), on whose board and freedom of information committee he served, and which he
represented as one of the founding directors of the California First Amendment Coalition.
COMMENT: Former Senator Alan Cranston,
contacted by the Times for an obituary comment about Bergholz ironically less than a
week before his own death on the last day of the year said that he was "perhaps a
little cynical, but that was understandable given the way politics had been over the
years." Cynical is not a word those who knew Dick Bergholz would use to describe him.
Cynics do not stay animated all their lives to help improve their profession so that it
may improve society, but that is just what Dick Bergholz's intensity was all about.
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UPDATES
& OTHER BRIEFS (1/5/01)
--THE DRAFT DODGE: A businessperson having more than casual contact with the U.S. Forest
Service supplied CFAC with minutes from one of the hundreds of meetings held as part of a
federal/state/local effort to come up with compromise policy for management of national
forests in the Sierra Nevada. An excerpt from the "Plumas Leadership Team"
minutes of a March 10, 2000 meeting "Leadership" meaning not open to the
general public states: "Lee Anne (Taylor, public affairs officer for the Plumas
National Forest) reminded everyone that all information is 'FOIAble' format of our
internal communications is not a determining factor. After some discussion, it was agreed
that no letterhead would be used for internal memos; please mark documents 'draft.' (U.S.
Forest Service official) Frank Ferguson and Lee Anne Taylor will plan to visit each
district to discuss and review this and more with employees." These minutes
apparently eluded the policy: They were obtained in response to a FOIA request.
--SUNSHINE SOUTH: In what is likely the first such effort south of the San Francisco Bay area,
a Redondo Beach city council member is proposing adoption of a local sunshine ordinance.
Councilman Bob Pinzler said, "We need to treat our citizens like customers, not
enemies," in broaching the idea at the council's Tuesday, January 2 meeting. Pinzler
is taking the Oakland sunshine law as his model, and in particular wants to see more
timely light shed on how much is paid out in litigation settlements or payouts to
terminated employees (such as the city's outgoing finance director). Pinzler accuses City
Attorney Jerry Goddard of wanting to keep settlements quiet and publicize only his
"wins." Goddard retorts that Pinzler, in selecting the Oakland policy as a
model, "doesn't know the law and doesn't do his homework. Most of those citations
from Oakland's code have already been incorporated in state legislation. Including them in
Redondo's code would be repetitive." The matter will be revisited in a month or so.
--DATED YEARBOOKS: In a case with implications for all public higher education
campuses, the full U.S. Court of Appeals for the Sixth Circuit has reversed an earlier
decision by a three-judge panel upholding Kentucky State University's confiscation of the
school's yearbook and removal of its newspaper adviser almost six years ago. The main
point: public campuses may not baldly censor college journalists. Lawyers for students
Capri Coffer and Charles Kincaid had argued in their written petition to the full Sixth
Circuit, submitted in September 1999, that the three-judge panel ignored more than 30
years of legal precedent providing strong First Amendment protection to college student
media. The panel had ruled that KSU broke no laws in locking up some 2,000 copies of the
yearbook for "quality" reasons and transferring the newspaper adviser to a
secretarial position because she refused to censor material critical of the
administration. KSU administrators said they confiscated the yearbooks because they were
upset with grammatical errors, the lack of photo captions, the inclusion of a current
events section in the book and the decision of the editor to publish the yearbook with a
purple cover, instead of one in the school's official colors of green and yellow. The
yearbooks remain locked away in a KSU storage room; school officials said they would
eventually be destroyed. Circuit Judge Guy R. Cole, writing for the 10-judge majority
(three dissented) in the opinion released today, called the lockup "amongst the
purest forms of content alteration," and stated: "We will not sanction a reading
of the First Amendment that permits government officials to censor expression in a limited
public forum in order to coerce speech that pleases the government." Just what the
First Amendment permits, at what educational level, was the whole point. Kincaid v. Gibson
is a closely watched case for public college and university student journalists because it
asks whether they are subject to the same degree of administrative control which the U.S.
Supreme Court found lawful with respect to high school journalism in its landmark1988
case, Hazelwood School District v. Kuhlmeier, 484 U.S. 260. The Sixth Circuit has now said
no. In Hazelwood, the high court found no First Amendment infringement in the action of
public high school officials censoring a student newspaper's proposed report on the
problems of teenaged pregnancy.
Back to Top
UPDATES
& OTHER BRIEFS (12/22/00)
--LATEST AUDIT: The good news is that a city has been found that unhesitatingly
provides even mysterious strangers with copies of public records. Ripon, a
10,000-population municipality in southern San Joaquin County, was the only entity to pass
with flying colors the Stockton Record's 25-agency public records compliance audit. The
survey, reported in the newspaper's December 17 and 18 editions, was the result of a team
effort of 13 reporters and editors visiting public agencies in San Joaquin, Calaveras,
Stanislaus, Amador and Sacramento Counties. The project also involved news staff from KMAX
Channel 31, which ran its own reports on December 18 and 19. The auditors gave their
names, addresses and phone numbers if asked, but disclosed their journalistic identity
only if challenged which happened twice because the effort was to assess the
experience of ordinary citizens. Information sought from cities and counties: Minutes of a
July meeting of the agency's governing body; a report of incidents on a given street
drawing law enforcement responses in July; amounts spent in FY1999-2000 for overtime in
streets and park maintenance; and the names and salaries of patrol officers. Information
sought from school districts: Minutes of a July board meeting; reports of violence at a
given school in 1999-2000; amounts spent on maintenance overtime for 1999-2000; and the
names and salaries of teachers and administrators at a given school. The request for
minutes was most successful, drawing only one failure. The salaries request was least
successful, rejected by all but three agencies. See the series link on the Record's home
page, http://www.recordnet.com for the next week
or so, then find it at http://www.recordnet.com/daily/news/news.htm.
For further information contact Dogen Hannah at the Record, dhannah@recordnet.com or by phone at (209)
546-8273.
--WHO WAS THAT MASKED
MAN? Watch the Los Angeles Times in coming days
for a profile of Jim Lissner, Hermosa Beach resident who won a Beacon Award from CFAC at
its recent Assembly for his one-man sunshine campaigns. Cited in the public service award
is Lissner's ongoing project to jawbone local law enforcement agencies statewide into
lowering their sometimes absurdly inflated charges to citizens for copies of crime
reports. But now Lissner has been sighted patrolling Brown Act compliance as well. One
observer tells CFAC that he showed up recently at a meeting of the Three Valleys Municipal
Water District in Claremont, in the news lately as being sued and suing in
connection with its yearlong secretive treatment of sexual harassment complaints from
employees against the general manager. Lissner, a CFAC member since 1994, had read about
Three Valleys in FLASH, and had done some investigation which showed that this district
did not video-tape their meetings for broadcast on local cable. So he contacted the local
cable and they agreed to broadcast if he would do the taping. At last week's meeting he
was there (that's quite a trip from the beach). "You should have seen the commotion
from the board members and administration all trying to find out who he was, who he was
affiliated with, did he have a business card, why was he doing this? He told them his
name, that he was retired, and this was a hobby whose aim was to benefit the public,"
said CFAC Board member
Rich McKee.
--TUNED OUT: Another Beacon recipient from several years ago, Steven Dunifer,
was cited for his federal court action attempting to establish that denial of licensing to
his low-power FM "pirate" radio station, Free Radio Berkeley, violated the First
Amendment. Since that unsuccessful litigation (FRB was ordered off the air, with the case
dismissed because he had never applied for a license), the Federal Communications
Commission created procedures for low-power FM stations meeting certain technical
requirements to become licensed. Thanks to Congress, that effort is now almost certainly
dead, and the victory is one of an industry over a movement. Buried in the Budget
Authorization Act now on President Clinton's desk is a provision, sponsored by the
National Association of Broadcasters, overriding the FCC licensing program and assuring
that no low-power FM stations will be licensed in any metropolitan areas. The reason has
to do with clear channel space around already assigned FM station frequencies. The
low-power movement says there's more room in the spectrum now because of high-tech
solutions to frequency overlap. The commercial response (shared, interestingly, by
National Public Radio) is that the spectrum spacing they now enjoy would be compromised by
adjacent upstarts. The FCC's low-power FM (LPFM) service would have meant up to 1,000 new
FM stations with signals of10 to 100 watts, compared to the 50,000 to 100,000 watts
typically generated by conventional broadcasters. More than 1,200 applications were
already on file, with licenses sought by colleges, churches and community organizations of
every kind. Instead, what critics are calling the "LPFM-killer" rider allows
only 60 or 70 LPFM licenses confined to the most rural and unpopulated parts of the
country. But even if the bill is signed, court challenges are expected based on the
First Amendment. For varying views, see http://www.fcc.gov
(FCC), http://www.nab.org (National Association of
Broadcasters), and http://www.mediaaccess.org
(Media Access Project).
--LAST WORDS: "In the previous Congress, legislation was prepared to embody
the essentials of the Commission recommendations. All classified material would bear the
name and position of the person assigning the classification and the date, subject to
review, that the classification would expire. It is not generally realized, but apart from
atomic matters, under the Atomic Energy Act of 1954 and a few other areas there is no law
stipulating what is to be classified Confidential, Secret, or Top Secret--and there are
numerous higher designations. It is simply a matter of judgment for anyone who has a
rubber stamp handy. Our bill was unanimously reported from the Committee on Governmental
Affairs, under the fine chairmanship of Senator Fred Thompson, with the full support of
the then-ranking Committee member, our revered John Glenn. But nothing came of it. The
assorted government agencies, covertly if you like, simply smothered it. The bureaucracy
triumphed once more. Thomas Jefferson's dictum that 'An informed citizenry is vital to the
functioning of a democratic society' gave way before the self-perpetuating interests of
bureaucracy." From the "Reminiscence and Farewell" entered into the
Congressional Record by outgoing Senator Daniel Patrick Moynihan (D-NY), December 15. For
the full text of his last official words on the harm done to national interests by
mindless secrecy, see http://www.fas.org/sgp/congress/2000/s121500.html.
Back to Top
UPDATES & OTHER BRIEFS (12/15/00)
-- BEST COP LOG? : In years past the New Yorker had repeated fun with its
"Constabulary Notes from All Over" feature small filler items quoting quaint
and often hilarious entries in small newspapers' police blotter reports. The tradition of
publishing such (sometimes lengthy) three- or four-line summaries of more routine police
and fire calls still hangs on in many rural newspapers. But making these items meaningful
can depend on how much information the constables are willing to share with the paper. Tim
Crews, editor and publisher of the twice-weekly Sacramento Valley Mirror in Glenn County,
wants more than the Willows Police Department is willing to provide, and specifically
names and addresses in reports of police calls, whether the incidents are considered
criminal or otherwise. He's litigating the matter under the California Public Records Act,
and the department is asking the court to take judicial notice of several weeklies whose
blotter reports are devoid of name and address particulars. The argument is that somehow
these papers represent best or at least standard practices. Crews, a member of CFAC's
board of directors, is asking FLASH readers to let him know of any papers that carry
police or similar blotters that tend to name names and report addresses. He can be reached
at roguescribe@thegrid.net.
-- WELCOME TO MY WORLD: Jeff Wright, a homeless but irrepressible gadfly of local
government, is currently serving out the balance of more than a year's jail sentence
imposed after he violated probation (for other misdemeanors involving no threat to person
or property) by questioning why his speech had been cut off at a San Bernardino City
Council meeting. In September he was inadvertently released from jail, and might still be
free but for his first enjoyment of liberty. Wright went straight to a meeting of the
county board of supervisors, and among other remarks during the citizens' comment period
he suggested that Supervisor Jerry Eaves, not he, should be behind bars. Wright was
referring to the fact that Eaves, who was since re-elected to the board, had last April
admitted to violating the law by failing to report hotel lodging and vacation trips paid
for by county contractors several years ago. In June he paid the county $7,200 to settle a
civil suit brought on these counts. But on Wednesday, December 13 it was announced that
Eaves had been indicted on 19 criminal counts, to which he pleads not guilty, alleging he
intentionally concealed gifts from contractors whose business with the county exceeded
$835 million. Jeff Wright's attention from law enforcement agencies began, one friend
says, after he made statements in public meetings that led to a 1995 investigation of
Eaves by the Fair Political Practices Commission. In any event Wright, whose typical
run-ins with the board of supervisors involved his exceeding time limits for citizen
comment, gave the Riverside Press-Enterprise a typically irreverent reaction to Eaves'
indictment: "I hope they put him in a cell with me so that I can talk to him longer
than three minutes."
-- HEAD ACHES: "Gory Details" was the slug used last week to head an
update on the legal action by the Associated Press and several newspaper companies to get
the federal court in Fresno to unseal a record. The document sought contained the
prosecutor's justification for seeking the death penalty for Cary Stayner, who admitted
decapitating a naturalist near Yosemite National Park in 1999, but plea bargained himself
into a life sentence. The sealed record's content centered on Stayner's own statements to
investigators, literally providing the gory details of what he had done. But, points out
San Francisco's AP Bureau Chief Clay Haswell, the object of the (finally successful as of
this past week) effort to obtain the record was not to publish the harrowing specifics
which AP did not and will not do. The point, Haswell notes, was to reestablish the
principle that records filed by a prosecutor to support a death penalty request are
presumed public and should be so treated by the court. Stayner still faces a state
prosecution for kidnapping and murdering three tourists in the Yosemite area, and his
lawyers wanted the federal court records kept under seal to avoid prejudicial pretrial
publicity in the pending case. Haswell is a member of CFAC's board of directors.
