Stories (1997):
Public Information

 

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February

 

Court: Names of Officers Who Fired at Man Killed in Police Shootout Are Public

A law enforcement agency may not withhold the names of officers who fire their weapons in an engagement fatal to a citizen, on any theory of confidentiality, either general or specific to peace officers. So ruled California's Second District Court of Appeal January 22 in New York Times Co. v. Superior Court (Thomas) (97 Daily Journal D.A.R. 813).

After a fatal shooting in rural Santa Barbara County in 1995 in which a private citizen was killed by one or more of five sheriff's deputies who fired at him, the Santa Barbara News-Press asked for the deputies' names. But Sheriff Jim Thomas declined, citing several exemptions from disclosure under the California Public Records Act. The superior court refused to order disclosure.

The court of appeal reversed, however, finding each of the sheriff's cited exemptions inapplicable. The protection for the contents of peace officer personnel files did not apply, it concluded, because there were no citizen complaints involved and the newspaper was asking only for the names of those who had fired their weapons, not for any investigative conclusions as to who had caused the victim's death or whether the shooting met department guidelines.

The court contrasted the narrowness of this request with the relative breadth of those in other cases in which the peace officer personnel file protection was held to be overriding -- where internal affairs investigative specifics had been sought. It noted that the oft-cited Public Safety Officer's Bill of Rights bars departments from releasing the photo or home address of one subject to an internal investigation -- but not the officer's name.

Several passages from the court's observations will be welcome to journalists and others who often encounter a total wall of secrecy in officer-involved shootings:

"The labels of 'personnel records' and 'internal investigation' are captivatingly expansive, and present an elasticity menacing to the principle of public scrutiny of government. A public servant may not avoid such scrutiny by placing into a personnel file what would otherwise be unrestricted information. A conclusion to the contary would weaken and despoil the Public Records Act . . . Law enforcement officers carry upon their shoulders the cloak of authority to enforce the laws of the state. In order to maintain trust in its police department, the public must be kept fully informed of the activities of its police officers . . . Disclosure is all the more a matter of public interest when those officers use deadly force and kill a suspect."

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Court: Public Has No Right to See Applications to Governor for Supervisor Post

Any legitimate interest the public may have in knowing who seeks the gubernatorial nod to fill a vacancy on a county board of supervisors is outweighed by the governor's need to be freely political in avoiding public scrutiny of his range of choices. So ruled California's Second District Court of Appeal December 19 in Wilson v. Superior Court (Los Angeles Times), (96 Daily Journal D.A.R. 15283).

This case deals with the identical issue now pending before the Third District Court of Appeal in California First Amendment Coalition v. Superior Court (Wilson), which has been briefed and argued for several months without a decision. In CFAC's case, the information sought was the application forms filled out by those seeking appointment to a vacancy on the Plumas County Board of Supervisors in 1995. The trial court in Sacramento rejected CFAC's Public Records Act petition, primarily on the grounds that the documents were exempt as governor's correspondence.

In this case, an essentially simultaneous push by the Los Angeles Times to get the same kind of information about those bidding to fill the post of resigned Orange County Supervisor Gaddi Vasquez resulted in a trial court order for disclosure, one which rejected the Governor's claims as to the correspondence exemption and also to the more sweeping exemption for information protected by the deliberative process privilege. The latter, imported into California law by the California Supreme Court in a 1991 decision protecting the governor's appointment calendars, has increasingly been cited at various levels of California government to shield whatever records would shed light on executive or even legislative decision-making.

Here the court of appeal held that a governor's ability to make supervisorial appointments to fill vacancies would clearly be impeded if the public could learn who had applied and what they had submitted to show their qualifications. The central rationale for this conclusion it found in the language of the 1991 Supreme Court case, which placed considerations of "unromantic" realpolitik higher in the scale of values than notions of the public's need to evaluate political decision-making: "(I)f the public and the Governor were entitled to precisely the same information, neither would likely receive it."

In dissent, Justice Turner noted that the deliberative process privilege is only one factor in the balance-of-interests analysis required by the Public Records Act, and that the other consideration- the public interest in disclosure- cannot be evaluated without actually reviewing the records in question. He would have remanded the case back to the trial court and ordered such an inquiry.

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March

 

State Supreme Court Lets Stand Appellate Ruling against Los Angeles Times

The attempt by the Los Angeles Times to see applications filed with Governor Pete Wilson for appointment to fill a 1995 vacancy on the Orange County Board of Supervisors has been denied by the California Supreme Court.

On March 26 the high court, on a 5-2 vote, denied the Times a hearing, with only Justices Stanley Mosk and Joyce Kennard voting to take the case. The immediate result is that neither the Times nor anyone else will see the information submitted by those bidding to fill resigning Supervisor Gaddi Vasquez' seat on the bankrupcy-plagued board. Wilson selected Don Saltarelli, a former land use consultant with the Irvine Company, which denied influencing the appointment.

The long-term effect is the opinion by the Second District Court of Appeal, which now stands as precedent further broadening the deliberative process privilege -- a version of executive privilege introduced into the California Public Records Act by the high court several years ago in another case of Times probing into a governor's contacts and influences.

The California First Amendment Coalition, meanwhile, has an essentially identical case pending before the Third District Court of Appeal, involving a 1995 vacancy on the Plumas County Board of Supervisors. If that court were to rule in favor of CFAC, the contrary precedents would create a clearer basis for review by the high court. On the other hand, the latter's readiness to let the Times case stand as law can only be taken as satisfaction with the protection its doctrine has handed California's chief executives.

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Fresno Professionals Organize to Help Public Understand Local Issues

A new kind of watchdog group -- people with expertise in law, accounting, architecture, engineering and other disciplines -- has formed in Fresno to monitor local agencies' activities. Professionals for Accountability in Government, an offshoot of 1000 Friends of Fresno, has been formed to review public agency contracts, budgets and other documents and publish their findings -- filling a perceived gap somewhere between the civil investigative functions of the grand jury and the press.

Announced last month, the group has about 20 members and has made its first order of business to ask local bodies to make their agendas and related documents available a full week before meetings. Dean Gordon, an attorney with the group, told the Fresno Bee that while the news media are an essential (and often the only) resource for monitoring local boards and commissions, they "do not have the time or expertise to really dig into the ramifications and nuances of decisions made by local officials." For further information, call Paul A. Dictos at (209) 224-7313.

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Court: Under FOIA, Contractor's Final Plan for Campsite Operation is Public

Despite the confidentiality granted to proposals to the Forest Service for operating a recreational facility, the winning contractor's final plan attached to the permit is a public record. So ruled the U.S. Ninth Circuit Court of Appeals in Frazee v. U.S. Forest Service, 96 Daily Journal D.A.R. 12067 (10/2/96).

Freedom of Information Act plaintiffs James and Joann Frazee were among a number of campground operators who applied for a Forest Service permit to manage the Cascade Lakes Complex in the Deschutes National Forest in Oregon in 1993. When their application was passed over, they FOIAed the service to get copies of all proposals submitted, plus the evaluation sheets used to rate them. The service denied the request, noting that it routinely assured applicants that their proposals and ratings would be kept confidential.

The following year the Frazees reapplied, this time successfully. But now a competitor put in a FOIA request for the Frazees' plan. In this case the Frazees objected, but the service declared their plan to be a public record. When they sued to block release, both the U.S. District Court and the Ninth Circuit upheld the Forest Service determination.

While the application and review process documents could be withheld under FOIA's exemption 4 (commercial and financial information submitted by private parties), the actual plan for management of the successful bidder becomes attached to the permit as a public record, the Ninth Circuit noted, and is not subject to the confidentiality promise. In any case, the court noted, the plan contents were "freely or cheaply available" elsewhere and thus not competitively sensitive.

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April

 

Massive List of Hidden Potential Loopholes Identified in Kopp Bill on CPRA

One of the realities which requesters for public information must deal with in California law is the fact that the seemingly lengthy list of exemptions from disclosure in the California Public Records Act is only part of the picture.

Under the interface provision of the Act, Government Section 6254 (k), any rule outside the Act found in any of the California Codes will act as a CPRA exemption if it makes information confidential. While many of these secrecy rules seldom affect information typically sought by requesters, the fact is that a layman or even lawyer asking the question "What is and is not public information?" has little sense of the scope of secrecy from looking at the Act itself.

That problem is addressed in Senator Quentin Kopp's SB 74, which among other things creates a new section in the Act listing all of the possible code sections that might be used as a basis for withholding records -- or nearly all. The list represents an exhausting but not necessarily exhaustive search by the Legislative Counsel for rules of confidentiality which a government agency might rely on in withholding information.

The list -- 531 code sections -- is prefaced by language that necessarily hedges its significance, since no one has reviewed these provisions to see the precise nondisclosure effect of each one. The introduction states: "Records of information not required to be disclosed pursuant to subdivision (k) of Section 6254 may include, but shall not be limited to, records or information identified in statutes listed in this article."

The bill also states intent that in the future, "each addition or amendment to a statute that exempts any information contained in a public record from disclosure" under 6254 (k) "shall be listed and described in this article."

Other provisions of SB 74 would:

• extend the Act to cover records of nonprofit organizations whose meetings are covered by the Brown Act;
• add a policy statement on access to electronic records encouraging agencies to design and program their information systems "to ensure convenient, efficient and economical access," including measures to help segregate confidential from public data, to allow reproduction in industry-standard formats, and to allow placement of records on the Internet.
• require an agency denying access to records to cite either an express provision of statutes allowing nondisclosure or, if using the public interest balancing test under Section 6255, to "state, in writing, the public interest in disclosure and the public interest in nondisclosure" which the agency is relying on.
• allow a lawsuit to force disclosure only when there is a written request which has been denied.

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School Consumer Guidebook Publisher May Sue to Get Comparative Data

When moving to a new community or relocating out of the neighborhood, one of the prime "location, location, location" issues for families with school age children is "education, education, education" -- how good is the school our youngsters would be attending?

San Franciscan Steve Rees, whose Publishing 20/20 has for the past few years been meeting this informational demand with comparative guidebooks giving both quantitative and interview-based data about school safety, attendance, facilities, performance and overall ambience, now thinks he may have to sue to make a point. The point is, this information is a matter of public record.

But not all school officials see it that way, and Rees has met some considerable resistance getting the facts, or getting them in the most usable form, to compile his school profiles. Administrators often were cooperative the first time around, but when they learned the guidebooks might make their campuses or districts seem less appealing to the parental consumer, some began balking at providing such material as standardized test scores, or suddenly decided that data provided the first time in electronic format, allowing easier analysis, would now be released only in hard copy. At one point the superintendent of the San Francisco School District even instructed principals not to talk to Rees's researchers.

Several months ago, branching out from the Bay Area, Rees sent 89 districts written requests for data on file. Forty-one responded fully; 48 did not. Now Rees believes that he needs to test the refusal of at least one secretive district by filing a suit under the California Public Records Act.

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Electronic Records Task Force Mulling Higher Fees for Business Requesters

An informal task force convened to attempt consensus on acceptable legislation governing electronic public records access has begun discussing a two-tiered fee schedule with higher charges imposed on business requesters.

The group, which has been meeting off and on for more than a year at the invitation of Senator Quentin Kopp, is intended to reach reconciliation on some of the thorniest issues affecting access to public records in digital form. The hope is that an agreed set of rules can be negotiated in the cooler atmosphere of occasional meetings chaired by the Kopp's staff, then plugged into his pending SB 74, which would amend the California Public Records Act in other respects.

Anyone not privy to these meetings would be free to then object to the ideas in bill form, but representatives of most of the more obvious interest groups would already have either bought in or at least articulated why they would oppose. The group includes representatives of the California Newspaper Publishers Association, the League of California Cities, other government agency sectors and advocates for online democracy.

Last week it reportedly made a first pass at a policy that would charge commercial requesters for electronic records more than the simple "cost of duplication" -- the fee limit for copies of paper records. Instead, records sought for "any use that furthers the commecial, trade or profit interests of the requester" in the language of the current proposal (but not requests by news media for journalistic purposes) would be met by a fee representing all "actual cost," including "search, retrieval, review, segregation and duplication." Added on would be a surcharge percentage so far left unfixed, to be used solely for the acquisition of computer systems designed better to accommodate pubic access to data.

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Court Refuses to Order Release of Records about Departure of Fire Captain

Last October 26 San Jose Fire Captain Robert Gremminger, who police would later say had just participated in a departmental training session, was in a San Jose shopping mall. Gremminger was not just another firefighter. He was a white official well-known to black firefighters and citizens for his participation in a reverse discrimination lawsuit. In it, Gremminger and others were accusing blacks of conspiring to cheat on a fire department promotional exam.

That fact lent a special force to what Gremminger did that day, which was to shoot and kill a young unarmed black man -- a shoplifting suspect -- in the mall parking lot. The next day police arrested Gremminger. He was released on a $1 million bail bond and has been charged with second degree murder. Three and a half weeks later, it turned out, Gremminger was gone from the ranks -- retired. But under what circumstances -- was it voluntary or was he forced out by city officials who, sensitive to long-standing charges of racism in the fire department, considered the shooting the last straw?

The San Jose Mercury News asked for records shedding light on these questions, but the city said no, citing "privacy concerns," and when the newspaper took the matter to court under the California Public Records Act, Judge Peter G. Stone agreed. But neither the city nor the judge explained what was private about the facts of what the city did and why, and the newspaper is now asking the California Court of Appeal for the Sixth District to order release of the records (San Jose Mercury News v. Superior Court City of San Jose, Sup. Ct. Case # 762731).

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Court: Waiver of FOIA Copying Fees Not Deniable Just Because of Reading Room Availability

The fact that records sought under the Freedom of Information Act are available in a federal agency's public reading room is not in itself a sufficient basis for denying a copying fee waiver to an otherwise qualifying public interest requester.

So ruled the U.S. Court of Appeals for the Ninth Circuit March 31 in Friends of the Coast Fork v. U.S. Fish and Wildlife Service, Case # 95-D.C. CV 94-6140. The plaintiff environmental groups sought documents showing why the defendant agency had not listed the western pond turtle as an endangered species, and asked for a waiver of fees to obtain copies of the 2,500 page administrative record.

The agency refused the fee waiver on the basis that the documents were open to inspection in its reading rooms in Portland and Sacramento. But the requesters, based in Eugene, Oregon, would have had to travel 100 miles and take voluminous notes -- or spend all day at the photocopier. Since their purpose of educating the public was within the policy parameters of the fee waiver, they should not be put to the travel and labor hardship, the court concluded, ordering the agency to give them a full waiver of fees.

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May

 

Bills Would Use Sunshine to Set Limit on Privatization of State-owned Hospitals

Because HMOs are increasingly unwilling to subsidize the extra overhead costs of patients' treatment at "academic medical centers" -- teaching hospitals -- the latter could be an endangered species unless new sources of either revenue or savings are found.

That was the major rationale, in any case, for the decision last November 16 by the Regents of the University of California to approve formation of a nonprofit corporation to run a new hybrid medical center uniting assets of the teaching hospitals of UC San Francisco and Stanford University. That move was already controversial with those who think a privatization merger with Stanford is neither the only nor the best solution for UCSF; some even deny there's a crisis at all.

But critical reaction now includes a species of sunshine legislation that Stanford officials may be viewing as a deal-killer.Three bills by three San Francisco lawmakers would, in one way or another, impose open meeting and public records obligations, and even conflict of interest laws now applicable only to public officials, on any nonprofit entity running such a UC-involved medical center with Stanford. The legislation includes SB 1350 by Senators John Burton (D) and Quentin Kopp (Ind); SB 1351, also by Burton and Kopp; and AB 1601 by Assembly Member Kevin Shelley (D).

SB 1350 attacks the problem posed by the fact that the UC Regents, while supplying half the new "UCSF/Stanford Health Care" corporation's equity and assets, would have only six seats on its 17-member board: a 35 percent voting leverage. UC takes the position that its transfer of $8.25 million in cash and $300-500 million in non-realty assets to a private entity is not an unconstitutional gift of public funds because those assets will be dedicated to the support of UC's research and charitable mission. But how could such dedication be overseen, with only 35 percent of the votes?

The Kopp-Burton answer in SB 1350 is to say that whenever assets of a state-owned medical center are transferred in such a joint venture, unless the state entity contributing the public assets gets a minimum 50 percent voting share in any corporate oversight, the corporate entity will be subject to the same Public Records Act and Bagley-Keene Open Meeting Act mandates as those affecting the UC Regents.

SB 1351 and AB 1601 would impose CPRA and Bagley-Keene access rules based not on voting control by the public partner but on how much value was transferred: If $50 million or more in state funds were involved, the sunshine laws would apply. There would be certain exceptions to the access mandates, namely those already available to the Regents in general or to boards of local hospital districts on such matters as peer review and "hospital trade secrets." The bills went through their respective houses of origin without much problem (the Senate versions enjoying a 29-0 floor vote).

But now the opposition, and Stanford Health Care lobbyists in particular, are beginning to marshal their forces. Supporters of the bills believe at least one of them must pass in essentially the present form, since the Stanford-UCSF merger is likely to be only the first in a series of partnerships taking all UC hospitals at least halfway into the private sector. But Stanford's position is that if the whole point of the deal is a more effective business presence for survival's sake, operating in the sunshine is no way to run a business, and these bills may just be an intolerable burden.The measures have not yet been assigned to their first committees in their second houses.

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Court: San Francisco Sunshine Ordinance Leaves D.A.'s Office in Shade

In a major setback for the efficacy of local open government policy, the California Court of Appeal for the First District has concluded that San Francisco's Sunshine Ordinance does not compel disclosure of information about closed investigations by the district attorney. The April 30 decision's effect is that the sweeping and permanent exemption from disclosure allowed prosecutors by the California Public Records Act cannot be qualified by even the mildest local rules favoring public access to information.

The San Francisco rule held inapplicable to the district attorney in Rivero v. Superior Court (Smith) , case. No. A075959 , is mild indeed. While subjecting investigative files to public access requests in cases terminated by either the court or the prosecutor's own discretion, it also allows withholding, based on the district attorney's judgment, of:

• names of witnesses;
• personal and private information unrelated to the purpose of the investigation;
• identities of confidential informants;
• secret investigative techniques or procedures; or
• any information whose disclosure would endanger law enforcement personnel.

The rule, in effect, approximately tracks the exemption for law enforcement information found in the federal Freedom of Information Act.

But the First District held that despite these opportunities to protect sensitive law enforcement information, the very existence of the qualified disclosure mandate created the threat that "potential witnesses could easily be dissuaded from coming forward" since the targets of the investigation "could easily review investigation files." And this chill on investigative efforts, the court said, meant that the rule constituted an illegal obstruction by the board of supervisors of the district attorney's state powers, in violation of Government Code Section 25303.

CFAC and others had argued as amici curiae that the California Supreme Court had earlier concluded that Section 252303 had not been inherently violated by a clearly more powerful law adopted by San Diego Supervisors, creating a civilian law enforcement review board with authority to subpoena records and witnesses as a parallel check on sheriff's officers' conduct.

But the opinion in Rivero brushed that point aside, concluding that despite the lack of any evidence of actual interference in this case, and the Supreme Court's willingness to assume that the San Diego review board would not create obstruction, individual counties are simply not permitted to decide for themselves that their district attorneys should be more open about their operations, or to adopt rules that hinge disclosure on particular facts and circumstances.

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June

 

Court Publishes Opinion Excusing Public Records Delay

The California Court of Appeal for the Fourth District has granted Attorney General Dan Lungren's request to publish, as a citable source of case law, a recent opinion denying a California Public Records Act (CPRA) requester its attorney's fees despite its having "won" release of some public information produced only after a lawsuit was filed.

Under the CPRA, a plaintiff seeking withheld records becomes the "prevailing party" -- and thereby entitled to the payment of attorney's fees and court costs by the defendant public agency -- if the latter is found by a court to have withheld the information contrary to law. As extended by court interpretation, the plaintiff is also deemed the prevailing party for purposes of recouping fees and costs if the defendant released the information only after the plaintiff filed a court action to force disclosure, and if there is enough evidence of a cause and effect relationship -- the filing of the suit prompted the release.

This rule serves as a deterrent to those public agencies that might otherwise say no to every CPRA request, or to every one viewed as a problem, opting to release records records only in the rare case where the requester pursues the matter and files suit to force disclosure.

But in some cases the agency may not explicitly refuse to produce the records, and may in fact inform the requester it will supply them -- in due course. Does this kind of delay justify the requester's filing suit, and if it does so and then gets the records it was seeking prior to trial, is it automatically entitled to fees as a prevailing party?

In an earlier case (Rogers v. Superior Court [1993] 19 Cal. App. 4th 469) the Second District Court of Appeal answered in the negative. If an agency releases records after suit is filed but can show that the suit did not motivate its change of heart, the plaintiff does not "prevail" in a manner entitling it to fees and costs.

In the opinion originally issued May 30 and now ordered published as case law, Motorola Communication and Electronics v. Department of General Services (Case No. C22623), the Third District has reached a similar conclusion. The case involves an attempt by the plaintiff, a vendor to local agencies of certain 911 telephone equipment, to challenge the state's practice of limiting reimbursements paid to the locals for such devices.

In a lawsuit filed in July 1995, Motorola contended that the state reimbursements, mandated by law, were illegally limited to what would be charged by phone companies such as Pacific Bell in the north and GTE of California in the south. The effect of the state reimbursement cap, Motorola argued, was illegally to favor the phone companies at its expense. Motorola has since won a superior court judgment in that case.

But on June 27, 1995, gathering evidence for its case, Motorola made two CPRA requests to the Department of General Services for a broad range of documents pertaining to "master agreements" between GTE and the state relating to 911 equipment. Eight days later the department responded that the records sought were being compiled. Over the next week or so, the attorney for Motorola reviewed what had been produced, inquired if there were more, and was told there was only one further record, which would be withheld as "proprietary." On July 14, the same day that it filed suit in the main case, Motorola filed a CPRA action seeking a writ of mandate for release of additional documents. Three days later the superior court ordered the department to comply, and then more documents were found, and three of them released.

When the main case and the CPRA writ came to a hearing in September, the superior court handed Motorola its victory in the former -- striking down the department's reimbursement limitation policy favoring the phone companies -- but declared the CPRA matter moot, and ruled that each party would bear its own fees and costs. Motorola, which had requested that the court award it fees and costs incurred in the CPRA action as the prevailing party, took the denial up on appeal.

In its opinion, the Third District closely tracked the interaction between attorneys for Motorola and the department from the time of the request to the filing of the court action and after. It concluded that the delayed or partial disclosure was not the result of deliberate resistance by the department, but instead a compound of understandable lags and miscues given the broad nature of the request and the shifting participants on the state's side, with the key attorney in charge of shepherding the document disclosures going on a previously scheduled vacation in the middle of the process.

The opinion noted that under the federal Freedom of Information Act, a document requester who hastens into court in reaction to delays in release is not viewed as eligible for fees and costs if the record shows good faith efforts on the agency's part stymied by administrative backlogs or other unintentional slowdowns. Applying the same principles, the court upheld denial of fees and costs to Motorola.

Comment: In discussing the department's timeline in response to Motorola's requests, the court made an observation which will surely be cited to excuse delays -- in good faith or otherwise -- in the future:

"The Public Records Act does not specify when records must be produced to a requesting party." Instead, the court noted, the Act states that public records are "open to inspection at all times" during the agency's office hours, and directs many state agencies to adopt guidelines for access. And while there was no need for the court to mention the fact, it should be noted that the Act does set a 10-day deadline for an agency to "determine" whether requested records will be released, and "immediately" notify the requester of that determination. In this case, the department satisfied the requirement by getting back to Motorola eight days after receiving its request.

Perhaps the chief lesson for requesters is that the more sweeping and generalized the request -- forcing the agency to guess at whether a given document is among those being sought -- the more likely it is that a court will tolerate as inevitable the time lags involved in such sifting.

As for public agencies, it would appear that the surest way to avoid attorney's fee burdens for delayed or incomplete disclosure is to stay in close contact with the requester and leave a record of cooperative communication, not stonewalling or unresponsiveness.

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Moynihan, Others Launch Bills to Reverse Federal Secrecy Tide

U.S. Senator Daniel Patrick Moynihan (D-New York) is leading a bipartisan congressional effort to establish fixed principles by which federal government information is to be classified -- and declassified. On May 7 he and Senator Senator Jesse Helms (R-North Carolina) introduced the Goverment Secrecy Act of 1997 (S. 712), with a companion bill in the House (H.R. 1546) introduced by Representatives Lee Hamilton (D-Indiana) and Larry Combest (R-Texas).

The legislation states that its purpose is to promote both "the effective protection of classified information" and "the disclosure of information where there is not a well-founded basis for protection or where the costs of maintaining a secret outweigh the benefits." It authorizes the President to classify information only where there is a "demonstrable need" to do so for the sake of national security, but also to ensure that the amount classified is "the minimum necessary" to protect that interest. The legislation also:

• sets forth requirements for establishing classification and declassification standards and procedures;
• requires heads of agencies with classification authority to submit an annual report to Congress on how the standards and procedures have been applied;
• provides for establishment of a National Declassification Center to coordinate and provide technical help among the affected agencies and provide its own annual reports to the President and Congress, and a National Declassification Advisory Committee to provide policy guidance to the center on priorities, standards and procedures.

Moynihan and Helms, so often on opposite wings of an issue otherwise, had interesting things to say about their purposes. Helms was emphatic that threats to national security have not disappeared with the end of the Cold War, and allowed that "a push to reduce government secrecy may seem at odds with these threats." But no, he said. Runaway classification is unacceptably costly -- at an estimated $5.2 billion last year just for the secret-keeping process. Also, "when everything is secret nothing is secret." Instead, classification becomes too often a cover for politically embarrassing information -- or even unethical or criminal conduct -- within the executive branch. And perfecting the mischief, Helms said, is that the bureaucrats who sign off on classification decisions never literally do so, but remain nameless and unaccountable. That would change under S. 712, he said.

Moynihan called secrecy "a form of government regulation" and for perspective on why it takes on a life of its own, referred to two scholars' observations:

• Sociologist Max Weber, 80 years earlier, in his treatise on Economy and Society:

"Every bureaucracy seeks to increase the superiority of the professionally informed by keeping their knowledge and intentions secret. Bureaucratic administration always tends to be an administration of `secret sessions'; in so far as it can, it hides its knowledge and action from criticism. The pure interest of the bureaucracy in power, however, is efficacious far beyond those areas where purely functional interests make for secrecy. The concept of the `official secret' is the specific invention of bureaucracy, and nothing is so fanatically defended by the bureaucracy as this attitude, which cannot be substantially defended beyond these specifically qualified areas."

• George F. Kennan, the 93-year-old architect of U.S. Cold War containment policy, in a recent letter to Moynihan from his office at the Institute for Advanced Study in Princeton:

"In Russia, in Stalin's time and partly thereafter, the almost psychotic preoccupation of the Communist regime with secrecy appeared to many, not unnaturally, to place a special premium on efforts to penetrate that curtain by secretive methods of our own. This led, of course, to the creation here of a vast bureaucracy dedicated to this particular purpose; and this latter, after the fashion of all great bureaucratic structures, has endured to this day, long after most of the reasons for it have disappeared. Even in the Soviet time, much of it was superfluous."

Lest anyone doubt that the secrecy enterprise has kept its momentum, Moynihan noted that "The Information Security Oversight Office reports that in 1995 we had 21,871 original new top secret designations and another 374,244 derivative top secret designations. Meaning that, in a single year, roughly 400,000 new secrets were created at the Top Secret level alone -- the disclosure of any one of which would cause exceptionally grave damage to the national security."

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Japanese FOI Law Proponents Want to Brainstorm with You in L.A. Next Month

A delegation of some 15-20 attorneys, legislators and journalists from Japan is coming to Los Angeles next month to pick the brains of lawyers and others familiar with federal FOIA use. The visit, on July 10 and 11, is part of an effort by the Japan Federation of Bar Associations, Nichibenren, to prepare positions on some FOIA-like legislation expected to be introduced in the Diet by March 1998.

According to David Wiesner of San Francisco, who is coordinating the Nichibenren visit, the group is particularly interested in convincing the Diet that FOIA litigation should be decentralized, so requesters can both try and appeal cases without having to travel to Tokyo -- a venue restriction being pushed by the bureaucracy. Other FOIA procedures and issues the group wants to hear practical stories about include in camera proceedings, the Vaughn index, Glomarization, trade secrets and proprietary information, agencies exempted from FOIA, electronic access, and discovery procedures.

Wiesner says that while attorneys with FOIA experience are of special interest to the visitors, others who have worked with the law are likewise welcome to supply their insights. For further information and arrangements, contact Wiesner by phone at (415) 346-4320; by fax at (415) 346-0520; and by e-mail at d.wiesner@genie.com.

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Access to Electronic Records: One Step Forward, Two Steps Back

The effort to bring California's no-tech public information access policies closer in tune with its high-tech reputation is not going well. As things have come to stand, state and local government agencies -- those subject to the California Public Records Act -- are not required by that statute to provide access to electronic records in any particular form. So a city's budget-related spreadsheets or a school district's site-by-site test score summaries need be produced only on paper, for example, thereby either precluding the requester's computer-assisted analysis or making it far more expensive or time-consuming.

As for the state's court systems, not covered by the CPRA at all, there is a declared goal to eliminate paper files to the degree possible and a recognition that the changeover to electronic records will force some new decisions on how to reconcile access rights with existing confidentiality rules in such a relatively fluid, massive-transfer mode.

On the CPRA front, two bills dealing with electronic access have seen action in recent days: AB 179 by Assembly Member Debra Bowen (D-Marina del Rey) and SB 74 by Senator Quentin Kopp (Ind-San Francisco). The former, which passed the Assembly June 4 and is now awaiting assignment to a Senate policy committee, requires public agencies in most instances to provide copies of computer-stored records in an electronic format if so requested. The latter passed out of the Senate, its house of origin, the next day, June 5, but only after scrapping provisions that simply encouraged public agencies, in buying new software, to seek systems designed to accommodate public records requests; to follow generally recognized industry standards in system design; and to facilitate putting on the Internet records that are clearly public.

The Bowen bill, as recently amended, allows agencies to exempt older "legacy systems" from electronic copying requests so long as the agency does not share the information electronically with any other entity, private or governmental, or modify the system with new software which results in a shifting of informational content. AB 179, which has now gone farther than either of its defeated predecessors (Bowen's AB 142 of 1995 and AB 2989 of 1996), is still opposed by some government lobbies, especially the California State Association of Counties.

The Kopp bill now provides no incentives to agencies to provide electronic access, in fact no longer addresses the issue at all. The author apparently dropped the electronic access -- encouraging language in order to get the bill out of the Senate Appropriations Committee, which had placed it in the limbo of the suspense file because of its supposedly unacceptable level of new state-mandated costs.

The situation with electronic access to court records is equally doubtful. The proposed rules adopted by the California Judicial Council's Advisory Committee on Court Technology, when put out for public comment in February, got such a heavy protest from judges and such a relatively light scattering of support that they are not likely to be adopted soon -- if ever.

According to Victor Rowley, a staff attorney with the Administrative Office of the Courts, the Court Technology Committee is now taking special steps to get comments from the Los Angeles Judges and other opponents of the proposed rules, which would have required the courts to design for public access -- even remote dialup access in most cases -- to all records now considered public in their paper versions. This process, a quiet return to the drawing boards never publicly announced by the Judicial Council, may yield a revised set of rule proposals by the end of the year, says Rowley.

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July

 

CFAC Credited with LA Council Demand for Arena-Related Team Commitments

The California First Amendment Coalition's intervention was cited as a major persuasive factor in the July 22 unanimous decision of the Los Angeles City Council to see -- and let the public see -- contractual commitments binding the Kings hockey and Lakers basketball teams to stay in the new City Arena for 25 years.

Councilman Joel Wachs, who had previously been a lone voice on the body urging that the arena developer share its contractual clauses with the council and public, told the Los Angeles Daily Journal that CFAC and other media and public interest voices convinced the council that "there are others who want to protect the public's interest and are willing to go to court if necessary."

In referring to a letter from CFAC in particular, Wachs said, "I think the First Amendment Coalition played an extremely important role in this." Others backing Wachs' motion to demand copies of the teams' commitment contracts were the Los Angeles Times, the Los Angeles chapter of the Society of Professional Journalists, and the Howard Jarvis Taxpayers Association.

At issue, framed in a motion made by Wachs a week earlier, was the question of whether the council should demand public access to copies of the commitment agreements rather than simply allowing city attorney staff to view the documents in the arena developer's law firm, make notes and issue a summary report to the council.

Reassurance of the Lakers and Kings commitments is a key to the council's pending approval of $70 million in bonds to help build the complex, to be retired over a 25-year period.

The arena developer had taken the position that its contracts with the teams were not public records since the city was not a direct party to them. But CFAC's letter pressed the council to demand access to them as a condition of its decision, and thereby settle the public records issue.

"With Council Member Wachs' motion," concluded CFAC's letter, "you have the issue of adequately informed action squarely before you. It cannot be said that you have not been cautioned as to the risks of relying on something other than a copy of the teams' commitments -- unqualified or otherwise -- placed on the public record. They would be there not only for your perusal but for that of the citizens of Los Angeles, some of whom might be very helpful in calling your attention to subtleties not reflected in a lawyer's summary.

"It would hardly be flattering to this Council if some of these citizens were forced to go to court to see what you could have so easily insisted on seeing yourselves, but declined to inquire into. Win or lose, such litigation would highlight for years to come the fact that the Council comported itself no more wisely than the leadership of other cities exploited by private sports interests who asked for substantial public support without corresponding public disclosure -- and who got it, to the cities' later embarrassment.

"The records Council Member Wachs asks you to pursue contain information critical to your judgment and of high public concern. Since your decision as elected public officials is necessary to this enterprise, the information is public and should be treated accordingly."

The full developer-team contracts will not be released, since they contain various revenue-sharing and other agreements considered proprietary by all parties. But the developer's lawyer told the council he will work with the city attorney's office to make public the commitment clauses themselves and summarize the general nature of the confidential portions not released. But Councilwoman Laura Chick tightened the screw somewhat by an amendment to the council's demand which insists that the developer's attorneys, Latham & Watkins, provide the council and public with their own written opinion concluding that the teams are bound to the 25-year terms.

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Measure Improving Access to Electronic Records in Final Fiscal Committee

AB 179 by Assembly Member Debra Bowen is in the Senate Appropriations Committee, amended July 1 to make it clearer which electronic records must be released in what format.

Overall the measure is designed to address the problem that, under the current California Public Records Act provisions, while public information is said to be accessible even if maintained in computerized form, the public agency is left discretion to make copies available in whatever form it chooses.

AB 179 directs that "any agency that has information that constitutes an identifiable public record that is in an electronic format shall make that information available in an electronic format when requested ..." As amended, the bill includes the qualifier, "if the requested format is one that has been used by the agency to create copies for its own use or for provision to other agencies. The agency is not required to provide a copy in the format requested if, in the light of surrounding circumstances, it is not reasonable to do so."

The opponents, which include the League of California Cities and the California State Association of Counties as well as several state departments, object that the bill does not allow public agencies to recoup costs other than those for making a copy of the requested record. They also complain that the measure would allow private companies, including the news media and private investigators, to obtain public information at negligible cost and then sell or otherwise use it for profit.

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Online Political Finance Disclosure Bill Faces Dilution Pressure

SB 49, the Online Disclosure Act of 1997, has reached the fiscal committee of its second house -- the Assembly Appropriations Committee -- but is now reportedly faced with pressure to dilute one of its key reporting mandates. The measure, by Senator Betty Karnette (D-Long Beach), would require all financial disclosure reports and statements now filed with the Secretary of State to be submitted in electronic form and made accessible on the Internet by the time of the statewide primary in 2000.

The electronic filing and disclosure mandate would not reach all currently reporting persons and entities, but it would cover:

• All statewide candidates, committees or measure proponents which receive or spend $100,000 or more in connection with the primary ballot in 2000, and who do so in the six-month run-up to that election;
• General purpose and small committees, slate mailer organizations, lobbyists, lobbying firm and lobbyist employers who receive or spend the same amount in the same period.

But the point of major controversy now is just how specific -- and meaningful -- the donor identifications are to be. Executive Director Kim Alexander of the California Voter Foundation, the public interest group most active in watchdogging the bill, describes the situation thus:

". . . there is an effort underway in the Capitol to severely limit the amount of information about donors that would be available on the Internet -- specifically, some members of the Assembly Republican Caucus are pushing for an amendment to the bill that would, in addition to restricting a donor's street address from online records, also omit a donor's city from being published online, as an additional measure to protect donors' privacy.

"Given the fact that currently the FPPC doesn't instruct candidates to file donors' zip codes, an amendment to restrict a donor's city from Internet publication would mean that the only remaining data that would be published online is a donor's name, state, and occupation/employer.

"We are really getting down to the wire on this bill, and I strongly suggest that those of you who want to access online campaign finance data start getting involved. If you're a reporter, it would be a good time to write about this and find out how your local Assembly members are going to vote on this bill, and where they stand on the question of how much data should be published online about their contributors. If you are an interested citizen, now is the time to begin contacting your Assembly members in writing and sharing your opinions with them.

"I cannot stress enough how crucial it is at this moment for the Legislature to appreciate the public's interest in this issue -- if it is not demonstrated, it is likely that this bill will be watered down and the system that comes online will be much less meaningful than it could be."

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Kopp's Public Records Bill Watered Down Even Further

Senator Quentin Kopp's SB 74, which awaits action in an August 20 hearing in the Assembly Appropriations Committee, has been trimmed back even further and now contains little other than two provisions that may make it harder to get public records.

A chronology helps show how substantially the measure has changed since its introduction:

• As introduced, the bill removed from the California Public Records Act language that made the public records disclosure mandate applicable to organizations of local public officials or agencies, such as the League of California Cities and County Supervisors Association of California, if they were supported entirely by public funds. That provision remains in the bill.
• As introduced, the bill extended from 10 to 14 days the additional time agencies were given to make a disclosure decision based on certain unusual circumstances. That provision remains in the bill.
• As introduced, the bill changed the Act's language prohibiting "delay" in disclosing public records to language specifying "obstruct" instead, suggesting that delay per se is not prohibited unless amounting to obstruction. That provision remains in the bill.
• As introduced, the bill barred a lawsuit to enforce disclosure until and unless a request has been submitted in writing and specifically denied. That provision remains in the bill.
• As introduced, the bill included a list of several hundred statutes outside the Public Records Act, said to be laws that "may" operate as exemptions. That provision remains in the bill.
• As introduced, the bill contained language encouraging public agencies, as they upgrade computer systems, to select hardware and soft ware to "ensure convenient, efficient, and economical public access to records" and in particular to shop for systems that would ease the segregation of disclosable and non-disclosable information, permit reproduction of copies in industry-standard formats, and facilitate placing information on the Internet. That provision was removed from the bill on June 5.
• As introduced, the bill required a public agency to justify withholding of a requested record by identifying the provision of law authorizing nondisclosure or, if withheld under the "public interest balancing test," to specify the public interest in nondisclosure which justified withholding in the particular case. That provision, on June 5, was narrowed to affect local agencies only, and only until 2001. In the most recent amendments of July 17, it was removed entirely.

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August

 

Merrill Lynch Scrambling to Block Release of Orange County Grand Jury Transcript

Merrill Lynch & Co. is appealing for a second time a decision that allows grand jury transcripts about Orange County's 1994 bankruptcy to be made public.

"This is a victory for the state of California," said Kelli L. Sager, the lead attorney representing a group of media organizations (including the California First Amendment Coalition) seeking the release of the transcripts.

The Fourth District Court of Appeal on Aug. 21, rejected a request by the Wall Street broker to overturn a lower court's order to release the material.

Merrill Lynch, a chief broker and adviser to county officials, has denied any wrongdoing in the nation's biggest municipal bankruptcy. Several of its employees testified before the grand jury as prosecutors investigated the fiasco. The company last June agreed to pay $30 million to settle the criminal case. Those seeking release of the grand jury transcripts say the information is essential to allow the public to evaluate the appropriateness of the settlement.

The appeals court, without comment, agreed to stay release of the thousands of pages until Aug. 26, to allow time for appeals.

Merrill Lynch's attorneys were preparing new legal arguments to convince the justices that the company is entitled to another stay that would prevent public disclosure of the documents, company spokesman Timothy Gilles told the Associated Press. In case the court refuses, Merrill Lynch is also appealing to the California Supreme Court. If the the stay runs out without any court's extension, the company is also asking that the transcripts be edited before release to remove matters of personal privacy.

Orange County filed for bankruptcy in December 1994, later claiming that bad advice from Merrill Lynch led to the loss of $1.64 billion. The government returned to solvency last year after taking on long-term debt. Merrill Lynch is also defending itself against a $2 billion civil suit by the county, and local officials say the transcripts will help put their case together. Grand jury transcripts are usually secret unless indictments are returned. News media have argued that there is an overwhelming public interest in the transcripts.

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San Diego Union-Tribune Suing for Claims Against School District

The California Public Records Act exempts from disclosure records "pertaining to pending litigation . . . or to claims" until the litigation in question has run its course in court or has been settled. But does the exemption apply to the claim itself, filed with a public agency as the required preliminary to suing it?

Some local agencies have taken that position, but the majority appear to agree with the Attorney General's 1988 conclusion to the contrary, namely that the exemption protects the public agency's memoranda and other paperwork triggered by a claim -- to keep the information from the legal adversary -- but not the claim itself, which was after all created by the adversary (71 Ops. Cal. Atty. Gen. 235).

But the matter may finally be addressed by a court, because the Poway Unified School District is refusing to disclose two claims sought by two newspapers. Both the North County Times and the San Diego Union-Tribune have asked for copies of claims submitted in June seeking payments totaling $1.5 million in compensation for injury allegedly suffered by high school athletes in two incidents last November.

The district has denied access, citing the exemption for pending litigation and privacy interests of the claimant students. The Union-Tribune has now sued to force disclosure.

What made these claims of special interest was the district's contention that a serious hazing episode on March 20 was an isolated incident. On July 15, three 16-year-old members of the school's baseball team were ordered by Juvenile Court Judge Joe A. Littlejohn to terms in juvenile hall and periods of community service for their roles in the broomstick sodomizing of a younger teammate in a locker room initiation.

Judge Littlejohn blamed school officials for condoning a "culture" of abuse, which he said was known to the coaching staff and yet left unchecked.

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September

 

Berkeley Citizens Pondering Prospects for Sunshine Ordinance

Should Berkeley join Richmond, Oakland, San Francisco and Contra Costa County, each of which has adopted its own comprehensive "Sunshine" ordinance in the past few years?

Such schemes generally provide for more expansive, timely, convenient and/or affordable access to meetings and public information than the minimum requirements of the Brown Act and California Public Records Act. Most also create an advisory body to see that the more generous access rules are understood and executed, in part by serving as a review panel for complaints.

Now the League of Women Voters of Berkeley and the UC Berkeley Graduate School of Journalism are mulling some preliminary questions which may lead to legislation to be introduced by a sympathetic city council member. The first order of business, according to graduate student Bonnie Eslinger, is to decide where the city's meeting and information policies and practices are falling short or what residents would like to see.

Those interested in participating should call Eslinger at (510) 841-5910.

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On the Governor's Desk and Needing Your Support Communications . . .

SB 49 by Senator Betty Karnette, establishing on-line filing of, and public access to, campaign finance reports.

Pick One: AB 179 by Assembly Member Debra Bowen or SB 74 by Sen. Quentin Kopp. Both would require public agencies to provide copies of electronic records in whatever form they use them in; AB 179 would allow fees based strictly on cost of duplication, while SB 74 would permit higher "actual cost" charges to commercial requesters.

SB 434 by Kopp would allow arranged interviews and confidential correspondence between state prison inmates and journalists, both of which have been administratively discontinued.

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Fight for Release of Grand Jury Transcript Moves to State Supreme Court

Merrill Lynch & Co., which recently reached a $30 million settlement of civil and criminal liability with the Orange County District Attorney concerning its role in the county's investment-triggered financial meltdown, is now asking the California Supreme Court to prevent release of the grand jury transcript on which the settlement was based.

Joining the company are at least 29 grand jury witnesses, and seeking release are a coalition of news media contending that if ever the public has a right to know the background to a settlement, this is the case.

Central issue: Since the grand jury statutes do not expressly address the situation of an indictment that is avoided by settlement, does the law either prohibit or mandate public access to the transcript in such cases, or allow the court to decide the access question as a matter of discretion?

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October

 

State Agencies Authorized to Charge a Fee for Information Provided by E-mail

As of Jan. 1, California state agencies may begin charging information requesters a fee for public data transmitted by e-mail. SB 1273 by Sen. Rob Hurtt (R-Garden Grove) allows for the charging of "direct costs" incurred by "electronic transmission" of material requested under the California Public Records Act. But the "direct cost" standard must be consistent with the limitation in that Act, which has been interpreted by the California Court of Appeal to exclude such associated processes as search, retrieval and redaction of the records.

The bill, according to the analysis prepared for the Assembly Committee on Consumer Protection and Governmental Efficiency, was co-sponsored by Secretary of State Bill Jones and "Aristotle Technology Corporation." Aristotle Industries is a Washington, D.C.-based vendor of public records retrieval and political campaign management software.

Comment: What remains to be seen is how agencies interpret "direct costs," since if anything the cost of e-mailed delivery of an identified digital document would be less than that involved in photocopying and mailing the paper equivalent, and in the case of longer documents consisting of many pages, significantly less.

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Alert: School Officials Told to Use Public Records Law as a Shield

If public school administrators soon begin balking at public information requests they would have previously honored without argument, it's probably no accident. Their statewide professional organization has advised them -- in some ways misleadingly -- that they have grounds for saying "no" more often than they think.

In the Oct. 6 issue of EDCAL, the official newspaper of the Association of California School Administrators, an article entitled "Just how public are school records?" includes some reminders that might actually improve districts' responsiveness.

For example, it reports new procedures of the Sacramento City Unified School District, adopted in response to grand jury criticism, to ensure that record requests are tracked and responded to within the 10-day mandate of the California Public Records Act, and that frequently requested documents are kept readily accessible. It also notes that copying fees must ordinarily be limited to recouping direct costs of duplication, excluding search, retrieval and redaction costs.

But the article also has some advice likely to cause problems. Its overall tone is suggested in the lead, which reads as follows:

"A reporter waits impatiently just outside your office door. And you, an administrator in the Diverse and Achieving School District in California, are sure that you are in a bind.

"The reporter, from the most powerful newspaper in town, has come to gather statistics on the number of students the DASD has expelled this year. You don't have the information. The report hasn't been generated. All you can find on the subject is one memo from yourself to a school district principal, a memo you'd rather not share. You pace.

"Relax. You don't have to give the reporter anything just yet. Under the Public Records Act, you don't have to publicly report the information: It hasn't been computed. Your intradistrict memo isn't public. Your reporter should go away empty-handed."

The problem with this advice is twofold. First, it suggests that only "computed" or "reported" information is public, and ignores the fact that information responsive to a request may be found in existing records that simply have not been compiled or summarized.

In this instance, for example, since all expulsions are required to be documented in the minutes of the school board meetings at which they are ordered, the school official could, and should, have referred the reporter to the minutes file and let him or her extract the information.

Second, it is not the law that intradistrict memoranda are per se exempt from disclosure. The Public Records Act exemption in question is qualified in several ways not mentioned in the article or its sidebar digest of the Act. It applies only to documents "not retained in the ordinary course of business." If it's standard practice to keep such memos on file, the exemption does not apply.

Even if it did apply, the exemption has been limited by court interpretation, in that while the "recommendatory opinion" (if any) of the memo's author may be withheld, factual material remains public.

Those encountering a sweeping "memos are not public" reaction from school officials should remind them of that judicial interpretation, found in Citizens for a Better Environment v. Department of Food and Agriculture, 171 Cal.App.3d 148 (California Court of Appeal, 3d Dist. 1985). And if told that certain information has not yet been computed or reported, they may want to ask for uncompiled source documents containing the information.

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December

 

Who Owns the Text That Tells Jurors the Law?

Since the mid-1940s, the standard jury instructions used in California civil and criminal trials have been published by the West Publishing Co., under copyright arrangements transferred from two obscure semi-official committees in Los Angeles.

While these summaries, used by judges to brief juries on the state of the law applicable to the evidence presented to them, are not exclusively prescribed -- the California Judicial Council directs judges to give equal attention to alternative instructions submitted by counsel -- the BAJI (civil) and CALJIC (criminal) published instruction sets are not called "standard" for nothing. By default, they tell jurors what legal rules they are to apply to the facts.

But now an on-line publisher of cases and other resources for lawyers wants to include BAJI and CALJIC on its Internet site, and both West Publishing and the collective "authors" of the rules -- two committees affiliated with the Los Angeles Superior Court -- are saying no: these materials are not public records.

Attorney Daniel M. Shapiro of Los Angeles, President of Universal Networks Inc., asked the superior court last May for a copy of CALJIC for publication on his company's JuriSearch site, but was turned down. CALJIC is not subject to the California Public Records Act, the answer came, and even if it were nominally so, West's copyright in the materials would override statutory public access.

Shapiro believes standard jury instructions can't be kept from the public by copyright, any more than judicial files or opinions. He has announced on the JuriSearch site that due to the copyright issue he has stopped making BAJI available.

"It is JuriSearch's position that any writing prepared by a Los Angeles Superior Court standing committee is a 'public writing' and not subject to copyright protection," he says. "We find it somewhat unusual that the results of the work of a standing committee of the Superior Court, created by judges paid by public funds, is subject to copyright protection. We are in the process of researching the issues and are considering bringing suit against the Los Angeles County Superior Court."

But West and the county insist that these materials, however overwhelmingly and officially employed, are not judicial work product -- they're developed and updated by two committees of private and public attorneys and active and retired judges, all working on their own time.

What is the quid quo pro for the authors? According to Karleen A. George, a member of the Los Angeles County Superior Court Clerks Association, the West royalties on sales of the instructions went to the county general fund prior to 1991, but since then have gone into a trust fund controlled by superior court judges. Last May, George told an assistant to a county supervisor, the fund balance "totaled well over $1 million."

The top administrative committees of the superior court have approved use of the fund, George says, for payment of $62,500 for a Sacramento lobbyist; $90,560 to pay all judges' dues to their advocacy group, the California Judges Association; and $165,200 for "administrative and legal" costs of the BAJI and CALJIC Committees. Not so far adopted is a proposal to use royalty trust funds to pay for judicial training although, says George, "each bench officer in the county receives a Professional Development Allowance (PDA) totaling approximately $500 per month."

Comment: Whatever the validity of the judges-volunteering-their-own-time distinction in this case, there is another "privatization" of public law which seems hard to justify by any rationale: Barclays, now a subsidiary of the same West Group which includes West Publishing, is the only source for the compiled body of state administrative law, the California Code of Regulations. Whereas all California statutory law is available at several places on-line, including the Web site of the Legislature itself, the often equally significant regulatory law is compiled and made available only through contract with Barclays/West Group -- at $2,280 per set.

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Anonimidad: Paper Reports Special Secrecy Given to Prosecution of Alleged Stalker

According to a report in the Dec. 5 edition of Santa Monica's The Outlook, the arrest and prosecution of a West Los Angeles man for something or other done to someone or other is getting the most extraordinary hush-hush treatment in memory.

On the record, 31-year-old Jonathan F. Norman is in jail facing a felony stalking count, and has been there since his arrest on July 11.

Off the record, the Outlook has pieced together the apparent story that Norman was arrested in a back yard near movie mogul Steven Spielberg's Pacific Palisades home. That came from a grand jury witness; all others contacted kept silence, saying they had been warned not to disclose what they knew. And the facts surrounding the arrest or the incident which triggered it have not been disclosed by police, who referred reporters to the district attorney's office, where an assistant D.A. said she could not discuss it, then hung up.

The official district attorney's line consisted of a released statement: "In order to afford a fair trial for both the People and the defendant, the prosecution and defense in the case requested that all records in the case be sealed. In light of this, we have no further comment at this time."

The Outlook discovered, however, that the deputy public defender assigned to the case for weeks knew nothing about the matter but the basic charge and the bail, and had not spoken with his client at the time the reporter contacted him. Followed up a day later, and having received "court documents" that may have included a gag order, his only comment was "No comment."

The only accessible records in the case showed Norman indicted on Oct. 9, bypassing a preliminary hearing. Within a week a judge had replaced the victim's name with "John Doe" and sealed the indictment and grand jury transcript. In November another judge sealed all other files in the case.

An unidentified Los Angeles police detective was quoted in the Outlook as observing (of Spielberg): "He's got a lot of clout. He's got a lot of power."

Doug Mirell, a renowned Los Angeles First Amendment and civil liberties attorney, called the blackout "entirely contrary to all the principles underlying our Anglo-American system of justice. "If it is not stopped now," he said, "it will eventually lead to a true Star Chamber proceeding."

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