Stories:1998
Public Information
These reports cover issues dealing with
the public's right of access to information held by government agencies
and courts, at the federal, state and local level. The typical laws involved
are the California Public Records Act, the federal Freedom of Information
Act, and rules on access to records of state courts, adopted by the California
Legislature or the California Judicial Council.
1997
January
February
March
April
May
June
July
August
September
October
November
December
January
Sunshine for Government-Supported Nonprofits:
An Idea Whose Time May be Arriving
The notion that a governmentally subsidized nonprofit organization performing
conspicuously public services should be more publicly accessible and accountable
than a private club is getting more respect these days.
In San Francisco, County Supervisor Tom Ammiano is backing a policy
-- not yet reduced to a concrete written proposal -- that would subject
at least certain nonprofits receiving public funds to at least some provisions
of the city's Sunshine Ordinance, which deals with open meetings and public
records.
Resistance has consolidated since the idea was first broached a few
months ago, but it has the advantage of a powerful local constituency.
Ammiano was prompted to begin calling for such an approach when those most
concerned with monitoring the San Francisco AIDS Foundation's services
-- community advocates and people receiving the services -- began protesting
their exclusion from meetings, or inadequate notice of the agenda.
The sense of Ammiano's proposal is to apply some open meetings and records
access rules to any nonprofit which receives city funds, either through
a contract or by an outright grant.
Meanwhile in Riverside, unusual intiatives by two city-subsidized event
producers will result in extraordinary public access and oversight, and
provide good examples of how such policies might apply elsewhere.
The board of the nonprofit Riverside Airport Open House Inc., which
annually presents the Riverside Air Show, announced January 20 that its
meetings and financial records would be open to the public. The board's
meeting policy contains fewer exceptions than the Brown Act -- only discussions
of personnel decisions and litigation will warrant closing the doors. Meeting
agendas will be posted in the municipal airport and faxed to city hall.
Financial records will be available after the air show in the spring and
after the board's annual business meeting, usually in June.
Only four days later, the board of the local Orange Blossom Festival
followed suit -- at least up to a point. It announced that its meetings
will be open to the public, subject to guidelines yet to be developed,
and that its records may be made available on a case-by-case basis. One
area likely to be kept confidential, in terms of both meeting discussions
and records, is information about negotiations with prospective sponsors
or donors.
The festival board, in reaching its access decision, reversed a policy
stand against open meetings, taken only in December. It conceded that the
Air Show board's new policy had in part motivated its reconsideration.
The Press-Enterprise Co., which reportedly contributed some $54,000 worth
of in-kind services to the festival last year but let it be known that
it might not renew its sponsorship, has now committed to increasing its
contribution.
Comment: These examples show how differently
the impetus for more sunshine on local nonprofits can originate and how
differently the enforcement mechanism might work. In San Francisco, the
pressure comes from the clientele or constituency of various human services
groups, and would be enforced by a simple condition imposed on city grants
and contracts: No public access, no public funds.
In Riverside, the pressure comes from deteriorating public relations,
wavering sponsor loyalty, or both. Clearly nonprofits that look to the
private charitable sector for at least part of their funding have a strong
argument for one exception to open meetings and records rules that would
apply to few agencies in local government. When a board discussion or related
records must deal candidly with prospective private donors, few would quarrel
with the need for confidentiality.
Back to top
Bills Would Put Hospitals' Patient Status
Information Off Limits to Press, Public
SB 1382
(Senate Judiciary Committee; no hearing date), introduced January 6 by
Senator Tim Leslie (R-Tahoe City), would repeal a provision of the Civil
Code which permits hospitals and other health care providers to release
summary information about patient status unless the patient requests to
the contrary, in writing.
The language to be repealed was negotiated between the (then) California
Hospital Association and the California Newspaper Publishers Association
in the early 1980s. It protects medical professionals and institutions
from tort liability (in the absence of a patient veto) for releasing "the
patient's name, address, age, and sex; a general description of the reason
for treatment (whether an injury, a burn, poisoning, or some unrelated
condition); the general nature of the injury, burn, poisoning, or other
condition; the general condition of the patient; and any information that
is not medical information..."
Comment: The bill as a whole deals with
the much wider issues of trafficking in patient information within the
health and insurance industries, and has genuine consumer interests at
heart. But the impact of the provision in question would be to dry up most
reports, no matter how newsworthy, on where the victims of crimes, accidents
or disasters were taken for treatment or the nature and seriousness of
their injuries or illnesses.
Meanwhile AB
1644 (Assembly Health Committee; no hearing date), introduced January
6 by Assembly Member Liz Figueroa, has a similarly consumer-protective
aim, but accomplishes something of the same effect as SB 1382 with respect
to press coverage. The problem is that the bill broadens the definition
of nondisclosable "medical information" to include a patient's
name and address. A reporter seeking to confirm that a particular person
was indeed admitted for treatment, especially a person with a common name,
might be met with the response that AB 1644 had made all patient identities
confidential.
Back to top
March
CA Confidential: State Senate May Open
Old Dossiers on Suspected Subversives
The California State Senate is considering opening to the public at
least part of a long-dormant archive showing legislative surveillance of
individuals and groups thought to be subversive of law, order or orthodox
Americanism.
The Sacramento Bee reported Wednesday, March 27, that Senator Bill Lockyer
(D-Hayward) and at least some colleagues favor opening -- with appropriate
privacy screening of material "hurtful" to individuals -- dossiers
on some 20,000 individuals compiled by state investigators in the '40s,
50s and 60s.
"There is no reason to hide these matters," Lockyer, a declared
candidate for attorney general, told the Bee. "Many innocent people
were subjected to job discrimination and other forms of injury. But I just
think it is better that our records be open to expose whatever good --
and whatever bad -- was collected."
The surveillance, which began in 1940 with an Assembly committee, the
following year became a joint Assembly-Senate inquiry into "un-American"
activities in wartime, and in 1947 was assigned to a Senate-only panel,
shut down finally in 1971. Targeted were labor unions, minority groups,
avowed Communists, students and Hollywood figures.
The subjects of interest shifted with the times: pro-Axis suspects during
World War II, pro-Communist suspects and anti-war organizers later. The
files show tracking of "everything from people suspected of murder
to people who who subscribed to the People's Daily," Senate Rules
Committee consultant Virgil Meibert told the Bee. Eight large cartons in
the archives contain the grist: 125,000 indexed file cards and supplementary
materials, including such stake-out product as photographs and notes on
license plate numbers and personal habits.
"They did more than write down somebody's name," Meibert said.
"They looked into personal lives, the drinking habits, the sexual
habits, that sort of thing. They were not what we would call 'politically
correct'."
The Senate Factfinding Subcommittee on Un-American Activities did publish
15 bound reports available through the state library system. One such report,
issued in 1965, stated that "(f)rom the inception of the most recent
troubles at (UC) Berkeley we have had both overt and covert agents in the
area who have provided us with a flow of information on a day-to-day basis."
The decision as to whether, when and how to release the information
will be made by the Rules Committee. One issue to be decided is whether
to emulate the Congressional policy of releasing only information at least
50 years old.
Back to top
State Justices Hear Arguments on Media
and Privacy of Highway Accident Victim
Are a traffic accident victim's anguished words at the side of a highway
a private experience or raw material for perpetual mass consumption?
Variations and implications of that question were pondered by the California
Supreme Court recently in oral arguments in Shulman v. Group W Productions,
a case which could limit the methods of both routine broadcast news gathering
and "reality-based" infotainment programs documenting the exploits
of police, fire and rescue officers.
The case involves one such production, "On Scene: Emergency Response,"
which showed rescue efforts in the aftermath of a highway accident which
left plaintiff Ruth Shulman a paraplegic. Like much television coverage
of such events, the program showed the overturned car, and even Shulman's
legs protruding. But atypically for news reports, the producers had wired
a paramedic to capture the victim's words, and recorded her begging the
rescue workers to let her die. They also picked up, and later broadcast,
her words to the attendants aboard the medevac helicopter.
Shulman's attorney told the justices, convened in their Sacramento courtroom
earlier this month, that while accident victims may have to accept that
images of their plight are newsworthy enough to be seen on film or video
-- as they could be seen from passing cars -- they should also reasonably
expect freedom from being audiotaped by hidden microphones clipped to their
care givers.
"There is no social value to hearing a human being's emotional
reaction to having her spinal cord severed," he said.
An appellate court earlier ruled that the roadside events were fair
game for media capture, but drew the line at recording the on-board exchanges
with the medevac attendants. Shulman appealed, urging that even the crash
scene conduct was impermissibly intrusive.
Comment: The justices' responses suggested
that there may be two axes of rights addressed in their decision: one in
space and another in time. Is the prospect that one's uncontrollable emotions
may be overheard by immediate bystanders the same as the prospect that
they may be reproduced for thousands or millions of others? And is the
notion that the image of one's suffering is "newsworthy" -- a
subject of legitimate public attention at the time -- the same as the notion
that it can be captured, canned, cataloged and resurrected for any and
all purposes long after the event that caused it is no longer news?
Under prevailing law, almost all photo and broadcast companies -- or
at least their lawyers -- would so far have answered these questions in
the affirmative. Some of the greatest work of photojournalism and broadcast
news professionals amounts to a conversion of involuntary trauma into images
or sounds forever in the public domain: the napalmed child in Vietnam,
the stunned young woman at Kent State. But what may nevertheless bother
at least some justices is the conviction that, whatever the general acceptance
of that tradition, Ruth Shulman's accident does not represent a telling
moment in history. Should judges and juries, however, have the power to
act on such convictions?
Back to top
Court: Judge Erred in Casually Ordering
Press Not to Contact Jurors after Trial
The judge in a politically significant criminal trial in Contra Costa
County violated the First Amendment in his impromptu order to the press
not to contact jurors after they were discharged.
So ruled the California Court of Appeal, First District February 20
in Contra Costa Newspapers. Inc. v. Superior Court (Bishop), Case No. A081220.
Former Contra Costa Supervisor Gayle Bishop was tried and found guilty
last summer on charges of using her county staff to perform campaign tasks
(she has since moved for a new trial). The case was tried before a visiting
jurist, Colusa Municipal Court Judge John H. Tiernan, because all Contra
Costa judges had recused themselves, and was prosecuted by Attorney General
Dan Lungren's staff, because District Attorney Gary Yancey had likewise
stepped aside from the politically loaded case.
After the verdict, Judge Tiernan stated the following in open court:
"Before I send the jury out, I'd like to make it clear to anyone from
the press, the jurors have told me that they do not choose to discuss their
deliberations or how they reached a verdict. So I'm assuming everyone here
has already received a 'no' from each of the jurors.
"If any juror disagrees with that, please raise their hand. (Apparently
none did).
"That is my understanding. The jurors have not raised their hands.
That means they are not to be contacted by the press, because they have
already stated their preference not to be contacted."
The Contra Costa Times soon moved asking Tiernan to withdraw his order,
but was ignored. In December, Bishop moved for a new trial, based partly
on charges of jury misconduct, and a hearing was set for February 20. In
view of the allegations, the Times again sought to have the order lifted,
but the request was denied, whereupon the newspaper sought appellate relief.
In ordering the contact ban vacated, the First District noted that state
law (Code of Civil Procedure Section 206) directs criminal trial judges
to advise jurors on discharge of their "absolute right" to discuss
-- or not -- their experiences with anyone, and contains other safeguards
to avoid harassment of ex-jurors by anyone, particularly attorneys and
parties.
On the other hand, the court observed that First Amendment case law
has led federal courts to conclude that "in the absence of particularized
findings reasonably justifying nondisclosure . . . juror names and addresses
must be made public after the trial has terminated."
Nothing like this standard was observed, the court noted: "This
record does not disclose the statements of the jurors to the trial court
but rather implies consent to the order by asking the jurors to 'raise
their hands' if they wished to speak; even if such consent were affirmatively
expressed it could not, in any event, establish jurisdiction over (those
not parties to the case, such as the press).
"Moreover, issuance of any such order without the further showing
of compelling need impinges upon constitutional rights, including not only
the defendant's right to move for a new trial, but also the rights of jurors
and the media. In this case the order was not directed at anyone in particular,
it was not based on any showing of unreasonable behavior by anyone, and
it was not carefully crafted to restrain conduct while preserving the constitutional
rights of those interested in the trial."
Back to top
April
Aggressive Disclosure Order Issued in
Computer Records Case
The only bad news about Martinez v. Nutter is that it doesn't
come from an appellate court. Otherwise, it's hard to think of a better
judicial decision supporting meaningful access under the California Public
Records Act.
On March 25 Judge Richard M. Silver of the Monterey County Superior
Court issued an order in Case No. 113382 granting a writ of mandate sought
by Honorio Martinez, a farm worker. It directs Agricultural Commissioner
Richard Nutter to provide Martinez with information about registered pesticides
sprayed on the fields he labors in.
That much represents settled law. The novel elements of Silver's order
are as follows:
Computer Data in Requester-readable Form:
Data provided in electronic form may be released in a format determined
by the agency -- unless the requester certifies that he has no access to
the technology to translate that format, in which case "the records
shall be provided in a format that is accessible to that particular requester."
This point is important because the pesticide application records in question
are maintained and transmitted to the state in a proprietary database program
that cannot be read by consumer desktop software. The order further provides
that if the requester asks for only part of a computerized record, he cannot
be forced to accept the entire database unless isolating the information
sought would be "impracticable."
Copy Fees for County Records: In recent
years some counties have adopted copy fees higher than the "direct
cost of duplication" under the Public Records Act, arguing that they
have the discretion to do so, as a "statutory fee" under the
authority of Government Code Section 54985. That statute allows counties
to increase the charge for any "product or service . . . in the amount
reasonably necessary to recover the cost," including indirect costs.
Judge Silver concluded that providing copies pursuant to the CPRA "does
not constitute a product or service" for purposes of the fee-hiking
authority. And even if it did, he added, the products or services of county
agricultural commissioners are excluded from the statute, and cannot be
ratcheted up with indirect cost elements.
Copy Fees for Electronic Records: Judge
Silver found that the "direct cost of duplicating records received
in computer form is currently 60 cents per 3.5 inch diskette, $14.00 per
tape cartridge, and 10 cents per page for public records printed from the
computer, depending on the form in which the records are received."
By contrast, the California Rural Legal Assistance (CRLA) office, whose
counsel represented Martinez in the action, had earlier been charged $105.40
for a four-sheet computer printout, according to a report in the Salinas
Californian.
Refunds for Overcharged Requesters: Finally,
Judge Silver ordered Nutter to "establish a process by which all persons
who were charged in excess of the direct costs of duplication for public
records since November 19, 1994, can claim refunds . . ." Refunds
can be claimed for the next year and should, if possible, be documented
to show the number of records received and the amounts charged, but "failure
to provide such information shall not be used as a reason to deny the claim
if this information can be determined from (county) records." If owed,
refunds are to be paid within 45 days of claim submission, and public notice
of the right to submit claims must be posted at Nutter's office and disseminated
via local media in form acceptable to both parties -- which presumably
means Spanish language media included.
According to CRLA counsel, the county does not plan to appeal the order.
And according to comments quoted in the Californian, the impact may be
felt more widely in Monterey County than just in Nutter's office. "Now
that that case is resolved," said Deputy County Counsel Wendy Strimling,
"I'm sure the Board of Supervisors will discuss the implications of
the lawsuit."
Comment: CFAC was alerted to this case
by Jeff Taylor, a Salinas information entrepreneur who would like to take
the Silver decision to all other county ag commissioners and persuade them
to sell him the pesticide data, which show which chemicals were applied
to which fields, by whom, and when. He hopes to be able to create a publicly
accessible Internet database of the information, paid for by fees charged
to those wishing specialized searches and reports. Taylor believes that
such a resource "could be valuable to competing chemical companies,
local/regional chemical sales teams, academia, news organizations and environmental
groups." But he hopes that he will not have to see the issue re-litigated
county by county.
Back to top
Court: Litigation Claim From Student is
Public, Not Private
Claims submitted to public agencies prior to litigation against them
are public records, and that applies to those from students to school districts,
despite pupil privacy law.
So ruled the California Court of Appeal, Fourth District, this week
in Poway Unified School District v. Superior Court (Copley Press), No.
D029634.
The case involved a number of claims submitted as required by the Tort
Claims Act against the Poway Unified School District in the aftermath of
a brutal locker room hazing incident at a high school. Three sophomores
pleaded guilty in juvenile court to assault charges and were sentenced,
at which point the court tartly upbraided the district for tolerating the
athletic initiation rituals that led to the assault.
Several tort claims ensued in the following months, with other students
alleging injury from prior hazing episodes, despite the district's official
position that the locker room assault had been an isolated incident. The
San Diego Union-Tribune sought copies of the claims, but the district refused
to release them on three grounds.
First, it cited Government Code Section 6254(b), which exempts from
disclosure under the California Public Records Act any "records pertaining
to pending litigation to which the public agency is a party, or to claims
made pursuant to (the Tort Claims Act), until the pending litigation or
claim has been finally adjudicated or otherwise settled."
Second, it contended that the release of details contained in such claims
might violate the students' privacy rights under California's constitutional
protections (the incident for which the students were sentenced, for example,
involved a broomstick sodomy).
Third, it argued that prohibitions against release of information about
students, contained in both the Federal Educational Rights and Privacy
Act (FERPA) and its California counterpart (Education Code Section 49060),
independently barred a disclosure of any claim submitted by a student,
which would be a confidential "education record" or "pupil
record" under those statutes.
The Union-Tribune, represented by attorney Guylyn Cummins of Gray, Cary,
Ware & Friedenrich, sought and won a writ of mandate from the San Diego
Superior Court ordering release of the claims. School officials sought
relief from the Fourth District, but that court likewise rejected their
contentions.
Examining the context and legislative history of the exemption for records
"pertaining to" claims, Justice James A. McIntyre concluded for
the court that the provision was simply another expression of the agency's
attorney-client privilege, inapplicable to documents originating with an
adversary party. Release of such material to the public would give that
party no "unfair advantage" over the district, McIntyre noted.
As for constitutional privacy rights, McIntyre cited prior case law
for the proposition that "one who submits a tort claim has no reasonable
expectation of privacy," and moreover observed that:
- the initial pupil claimant and his counsel made no explicit demands
for privacy protection (the latter actually participated in a press conference
concerning the settlement);
- the Union-Tribune's policy was to suppress identities of minor offenders
and sex crime victims in its news reports;
- the information was "relevant to a legitimate and important competing
public interest in ending school hazing practices potentially endangering
many children";
- the public interest in such matters is demonstrated by the law opening
juvenile court delinquency proceedings to public attendance when the charges
involve rape, sodomy or assault; and
- in any event, redaction of identities can protect privacy interests
and still allow release of the claim as a whole.
Finally, McIntyre rejected the notion that pupil privacy statutes governed
documents such as those in question. Noting the definitions of the covered
records in state and federal law, he stated:
"It defies logic and common sense to suggest that a Claims Act
claim, even if presented on behalf of a student, is an 'educational record'
or 'pupil record' within the purview of these exemptions. Just because
a litigant has chosen to sue a school does not transmogrify the Claims
Act claim into such a record."
Note: Until June 13 a copy of the court's
opinion can be downloaded from the Internet.
Back to top
Bill Mandates Obscenity Filters for Library
Internet Access
Does a public librarian have to process a patron's request for an obscene
book? Does the librarian have to monitor patrons' calls from pay phones
on the premises to be sure the number called is not providing phone sex?
Does it make any difference whether the patron is an adult or a minor?
Whatever you think of those ponderables, a comparable issue is now before
the Legislature in a bill by Assembly Member Peter Frusetta (R-Tres Pinos).
AB 2350 would add Section 18034 to the Education Code, to read:
"Every public library that provides public access to the Internet
shall purchase, install, and maintain computer software that prohibits
access to obscene matter, as defined in Section 311 of the Penal Code,
on the Internet."
The bill handily (10-2) passed its first hurdle this week in the Assembly
Committee on Local Government and will next be heard in the Assembly Committee
on Information Technology. In committee it was amended, however, to provide
that only half of a library's Internet-linked computers need use the obscenity
filters, so long as the unfiltered units are kept off limits to minors.
As noted in the committee analysis, the bill drew substantial opposition
from public librarians, among others, who worry that the software chosen
to screen out "obscenity" may be dumb enough to block access
to sex-related but nonobscene matter--but hackable by talented minors,
whose parents may then sue the library for not delivering on an implied
promise of effective censorship.
Back to top
Burton Joins Calderon, Hayden With Anti-Paparazzi
Measure
Senator John Burton (D-San Francisco), President pro Tempore of the
Senate, has introduced yet a third bill in his house directed at obnoxiously
persistent media pursuit. In addition to anti-paparazzi measures by Senators
Tom Hayden (D-Brentwood) and Charles Calderon (D-Whittier), Burton has
gutted an unrelated bill already in the Assembly -- SB 262 -- to create
a new "tort of invasion of privacy to capture a physical impression."
Liability could be incurred in any of three ways, namely where the defendant:
- "persistently and physically followed or chased the plaintiff
in a manner causing the plaintiff to have a reasonable fear of bodily injury,
in order to capture, by a visual or auditory recording instrument, any
type of visual image, sound recording, or other physical impression of
the plaintiff"; or
- "entered onto the land of another without permission or otherwise
committed a trespass, in order to capture any type of visual image, sound
recording, or other physical impression of the plaintiff"; or
- "attempted to capture any type of visual image, sound recording,
or other physical impression of the plaintiff, through the use of a visual
or auditory device, even if no physical trespass has occurred, if this
image, sound recording, or other physical impression could not have been
captured without a trespass unless a visual or auditory device was used,
and the plaintiff had a reasonable expectation of privacy at the time of
the attempt."
The damages provisions are ambitious but unclear, purporting to allow
recovery for some kind of presumed or actual injury -- "general"
and "special" damages -- and also "punitive" damages,
plus "treble" some amount, plus (in the case of a commercial
violation of the plaintiff's rights) disgorgement of any proceeds obtained
as a consequence, plus court costs and attorney's fees.
While media activity is clearly the intended focus, the bill -- sponsored
like the others by the Screen Actors Guild -- incidentally affects the
conduct of private investigators or, for that matter, over-eager fans.
Comment: Although Burton not long ago,
in an appearance before a legislative conference of the California Newspaper
Publishers Association, pledged not to seek unconstitutional law, SB 262
suffers from the same First Amendment myopia as the measures by Hayden
and Calderon, namely that conduct which is already either criminal or actionable
is made specially and ferociously punishable when done to obtain information
for communication to the public. That is, stalking, trespass and the use
of telephoto lenses or parabolic microphones to intrude into privacy --
activity subject to redress under current law -- would under SB 262 be
subject to treble damages and/or confiscatory awards without proof of actual
injury. Neither the Screen Actors Guild nor the authors of these bills
have ever pointed to a court decision denying or limiting relief to harassed
celebrities because of gaps in current remedies.
Back to top
Newspaper Wins Round in Subpoena for Source-Supplied
Material
The San Bernardino County Sun does not have to supply a prosecutor with
documents it obtained related to issues in a 1996 election.
So ruled Superior Court Judge J. Michael Welch March 16, quashing at
least temporarily a subpoena with which San Bernardino County Deputy District
Attorney Grover Merritt sought to obtain documents sent to the Sun by the
developer of a proposed 40-storey mega-dump in the Mojave Desert.
The documents are sought as part of an investigation into the activity
of Joseph Lauricella, described in a Sun article as a "parole violator
and white-collar criminal" and suspected of corporate espionage and
improper campaign practices.
The election in question pitted the dump promoter, Waste Management
Inc. (and Lauricella) against another large concern, Cadiz Land Co., owner
of farm acreage near the proposed dump site. Voters disapproved the project
in a 1996 election, but the Sun later published stories about Cadiz.
The district attorney apparently believed that Lauricella had provided
the newspaper with documents -- either improperly obtained or falsified
-- hoping to plant stories or editorials that would subvert Cadiz in its
opposition to the dump.
But attorney James Manning of Reid & Hellyer, representing the Sun,
told the court that all documents in question were received after the election,
except some public records which were not used in any pre-election stories.
Merritt said he wanted to dust the documents received by the Sun for
fingerprints, and indicated he would redraft the subpoena to specify its
connection not with election tampering but with "an ongoing investigation."
As for the Sun's contention that journalists' unpublished information
cannot be subpoenaed because of a state constitutional immunity, Merritt
said, "I think the Shield Law is designed to protect sources . . .
and we think we know who the source is."
But Manning argued that the whole hunt for election-related influence
on the press was misguided: "Elections, by their very nature, are
based upon opinion and misinformation. The electorate is charged with the
responsibility for sorting and sifting, not (the DA)."
Back to top
May
Court: Last-Minute Glimpse of Executions
Sufficient for Witnesses
Witnesses to California executions have no constitutional right to see
more of the lethal injection process than is now revealed -- the condemned,
already strapped down, intubated and beginning to die.
So ruled, in effect, a three-judge panel of the U.S. Court of Appeals
for the Ninth Circuit Tuesday (April 28) in California First Amendment
Coalition v. Calderon (Case No. 97-15493).
Attorneys for CFAC and its co-plaintiff, the Northern California Chapter
of the Society of Professional Journalists, were expected to file a petition
for reconsideration shortly, but no discussion has begun as to whether
appeal to the only remaining forum -- the U.S. Supreme Court -- would be
advisable.
The Ninth Circuit's decision rejected the earlier ruling of U.S. District
Judge Vaughn Walker, who had agreed with CFAC that the public has at least
a qualified right of access to observe capital punishment -- or more precisely,
that the government had a First Amendment obligation to expose at least
the crucial phases of an execution to at least some public witnesses. In
an early 1997 order, Walker directed San Quentin Warden Arthur Calderon
and other Corrections officials to allow public witnesses to see the condemned
person enter the death chamber and be attached to the lethal appliances.
Such visibility had been routine when execution was by poison gas, but
with the adoption of lethal injection early in 1996, officials kept the
chamber window draped until murderer William Bonin was strapped supine
on the gurney and attached to the intravenous drip. Spectators saw only
his essentially motionless form, eyes closed, and were finally told when
he had died.
The Corrections rationale for keeping the execution activity under wraps
has always been simple. Unlike preparation of the gas chamber, officials
say, the process of readying an injection patient for death is sometimes
protracted, especially by such mundane difficulties as finding the right
blood vessel for the injection. The delay, they argue, could lead to the
identification of officers on the Death Team, who later might be named
by spectators as having been involved in the event, thereby exposing them
to retaliation from inmates.
CFAC's argument is likewise simple. An execution is the extreme proceeding
of the criminal justice system, a system which has been recognized by the
U.S. Supreme Court since the 1980s as being, at least at certain crucial
junctures such as trials and hearings, presumptively open to public observation.
The reasons supporting such visibility -- a tradition of open proceedings
at the time the Constitution was adopted, a means of deterring abusive
or improper conduct, and a means of reassuring the community that justice
is being served -- all apply to the execution proceeding, CFAC contends.
Despite the Ninth Circuit's characterization of the case as being a
question of press access to prisons, CFAC did not argue for special press
privileges, and in fact the order which Judge Walker issued mentioned a
right of access by the public, leaving open the question of what degree
of press participation in the witness gallery was either necessary or sufficient.
The Ninth Circuit based its decision on two U.S. Supreme Court cases:
Pell v. Procunier, which in 1974 concluded that the press has no right
of access to prisons superior to that of the public, and Holden v. Minnesota,
an 1890 decision which the Ninth Circuit described as "the only case
in which the Supreme Court discussed a state's restrictions on media or
public access to executions (and) upheld a total ban on both."
Holden also discussed a Minnesota law which made it illegal for a newspaper
to publish any "account of the details of such execution, beyond the
statement of the fact that such convict was on the day in question duly
executed according to law," and called such rules "regulations
which the legislature, in its wisdom, and for the public good, could legally
prescribe in respect to executions occurring after the passage of the act."
At the conclusion of its opinion in CFAC's case the Ninth Circuit stressed
that "we are not holding that neither the public nor the press has
any First Amendment right to view executions. Rather, our holding is limited
to the facts of this case. (Warden) Calderon asserts that the limitations
on viewing . . . are 'directly related to prison security, staff safety,
and the orderly operation of the institutional procedure.'" The court
then cited Pell to the effect that execution procedures are "peculiarly
within the province and professional expertise of corrections officials,
and, in the absence of substantial evidence in the record to indicate that
officials have exaggerated their response to these considerations, courts
should ordinarily defer to their expert judgment in these matters."
Comment: If the absence of any action on
the part of the press or other witnesses in the past to publicly identify
members of the Death Team does not suggest that the reduced visibility
of the execution procedure is an "exaggerated response," one
wonders what the phrase means. One also wonders whether the Ninth Circuit
really believes that a 19th century case approving, among other things,
prior restraints on publication of execution news is sound law today.
Back to top
Court: State's Report on Inspection of
Tribal Casino is Subject to Disclosure
In the spring of 1996 Chinook Winds, the Pacific Northwest's largest
gambling casino, was in the run-up to the grand opening of its permanent
facilities in Lincoln City, Oregon, when its proprietors got distracting
news from the governor's office. Someone had made a request for a copy
of an investigation report performed by a special gaming unit of the state
police concerning the casino's first year of operation in its temporary
housing. The governor's lawyers believed it would have to be released.
It is still not known what was in the report, but the stakes were high
for the proprietors -- the Siletz Indian Tribe of Oregon. The $44 million
casino and convention center was to be the county's largest employer, with
700 jobs and a projected $10 million annual payroll in an area which for
the Siletz had been historically depressed. The new complex, which opened
in late June to a crowd estimated at 10,000, was big business by any local
standards, with a 35,000-square-foot convention center and ballroom, a
750-seat bingo/entertainment hall, two restaurants, a child-care center,
and sweeping ocean views.
The prospect of public disclosure of the investigation report prepared
by the State Police Tribal Gaming Unit made the tribe uneasy enough that
it sued in federal court to block release, arguing that a state open records
law was subordinate to the tribal gaming compact which Oregon had signed
with it, and preempted under the federal Indian Gaming Regulatory Act (IGRA).
The U.S. District court agreed, and issued an injunction accordingly.
But on appeal, the U.S. Ninth Circuit Court of Appeals reversed, concluding
that the question of public access to compact-related information was determined
by the compact itself, which had provisions for keeping casino financial
details and trade secrets confidential, but put no such restriction on
the reports generated by state-conducted inspections or investigations.
Nor was the question of access to such reports likely to be preempted by
IGRA, the court stated in Confederated Tribes of Siletz Indians of Oregon
v. State of Oregon (Case No. 96-36027, 4/24/98):
"The Records Laws do not seek to usurp tribal control over gaming
nor do they threaten to undercut federal authority over Indian gaming.
To be sure, the Records Laws could have a detrimental effect on the Siletz
Tribe if the Report contained damaging information on the operation of
the Chinook Winds casino and the release of that Report would cause a decline
in business. That possibility, however, is fully consistent with IGRA'
s goal of fair and honest gaming."
Comment: California currently has no perfected
tribal gaming compacts under IGRA, but it soon may. Legislation by Senators
John Burton (D-San Francisco) and Ken Maddy (R-Fresno) would, among other
things, ratify a compact already negotiated by Governor Wilson with the
Pala Indians of San Diego County for operation of a casino there. Under
SB 1402, now on the Senate floor, the Pala Compact would become the template
for all such future agreements with other tribes in the state. It is not
clear whether the Pala Compact (referred to but not incorporated in SB
1402) would protect reports of inspections, investigations or audits conducted
by state monitors any more than the agreement in Oregon did.
Back to top
Patient Privacy Bill Advances; Threatens
Press Coverage
AB 1644, a bill which would probably end reporters' ability to confirm
the presence or status of any crime, accident or disaster victim sent to
a hospital passed the Assembly Wednesday (May 29) and awaits committee
assignment in the Senate.
The measure by Assembly Member Liz Figueroa (D-Fremont) is intended
to strengthen protection for the privacy of medical patients. It does so
by expanding the definition of information to be protected to include the
patient's name and address, which are now not classified as confidential
under the patient privacy law.
A direct effect, intended or not, would be to expose hospitals to severe
civil liability for confirming the fact that a given person had been admitted
for treatment, unless the patient had affirmatively consented to the disclosure
in writing.
Comment: According to the California Newspaper
Publishers Association, other legislators with bills on patient privacy
that would have created similar problems this year have taken amendments
to avoid this effect when it was called to their attention. But Figueroa,
who has likewise been asked not to curtail this access, and whose staff
has not been able to cite a single problem with press confirmations of
admissions, is so far unwilling to make an accommodation.
Back to top
June
Court: Judge Properly Ordered Unsealing
of Grand Jury Transcript
An Orange County Superior Court judge acted within his powers in ordering
the unsealing of the transcript of a grand jury investigation into Merrill
Lynch's role in the county's 1994 bankruptcy, even though the probe ended
in a settlement rather than indictment.
So ruled the Fourth District Court of Appeal June 16 in In re Request
for Transcripts of Phase Three Grand Jury Proceedings (Case No. G022076).
The decision marks a victory for an ad hoc coalition of 13 petitioners,
including the California First Amendment Coalition and a dozen news organizations,
who sought release of the transcript over the objections of Merrill Lynch
& Co., 29 grand jury witnesses and Orange County District Attorney
Michael Capizzi.
The almost year-long "Phase 3" investigation (so called because
two previous probes had focused on the responsibility of county officials)
concerned the role of Merrill Lynch, underwriter of the derivative debt
instruments whose failure led to an estimated $1.67 billion in losses to
the county and forced it into the largest municipal bankruptcy in history.
After 74 sessions of testimony, but before the grand jury commenced
deliberations, D.A. Capizzi announced he was ending the investigation in
return for a payment by Merrill Lynch of $30 million - 10 percent of which
would reimburse Capizzi's office for its costs in the probe, with the balance
deposited in the county general fund. The grand jury was dismissed.
The Los Angeles Daily Journal soon asked the superior court to order
Capizzi to release the transcript of testimony, and after a hearing on
arguments by Capizzi's office, the county counsel, Attorney General, Merrill
Lynch and all media which had by then requested release, the court ordered
the transcript released.
When the objectors sought writ relief, the Fourth District Court of
Appeal at first declined, but after instruction by the California Supreme
Court to hear an appeal, it considered the arguments and concluded the
superior court's order was within its sound discretion.
The problem for both sides was that while Penal Code Section 938.1 addresses
how and when a transcript is to be released to the public after an indictment,
it says nothing about the (apparently unprecedented) situation when an
investigation target is neither indicted nor exonerated, nor was there
any case law on point.
Merrill Lynch and other objectors argued that the general secrecy of
grand jury proceedings otherwise should be viewed as the default policy
-- dictating no release without an indictment. The news organizations contended
that the lack of clear guidance left the matter up to the discretion of
the superior court, whose role it was to supervise the grand jury, including
its reporting function.
The Fourth District found the latter position more persuasive, citing
previous cases to the effect that courts have the inherent constitutional
authority to make their own procedural rules in the absence of controlling
guidance from the Legislature or the California Judicial Council:
"We believe the superior court has such discretion. The court below
faced a unique set of circumstances. In the absence of any legislative
prohibition, it had the power to fashion a procedure to deal with those
circumstances."
Moreover, the Fourth District felt the discretion had been exercised
appropriately. Release of the transcript would not tarnish the reputation
of an exonerated target, "because no one was exonerated." Witnesses
could not have reasonably expected privacy, since for all anyone knew they
could have been called to testify at trial had an indictment been returned.
On the other hand, there was excellent reason for not tying transcript
release exclusively to indictments, a reason which might be suggested by
pondering the question of what, exactly, Merrill Lynch thought it was buying
for $30 million:
" . . . there is a very strong public policy in favor of preserving
the public confidence in the integrity of the grand jury system which can
ONLY be served by disclosure. Whatever might be said of the reasons for
the 'settlement' in this case, it is important that it not be misinterpreted.
The corrosive effect of a perception that the target of a grand jury investigation
could buy its way out, or that a prosecutor might sometime in the future
initiate such an investigation simply to coerce such a payment, would be
catastrophic.
"The irony of a rule that Penal Code Section 938.1 requires disclosure
of grand jury proceedings if the target is indicted, but proscribes such
disclosure if the target 'settles' before the grand jury can consider indictment,
would not long be lost on either the law-abiding or the criminal public.
It cannot have been the Legislature's intention that the courts be unable
to defeat this tragic distortion of the law" (emphasis in the original).
Back to top
Kopp's Public Records Bill Drops Provision
on Access to E-Records
Senator Quentin Kopp (Ind-San Francisco) has amended his bill on the
California Public Records Act to drop the provision that got an identical
bill vetoed last year.
SB 143 was amended June 17 to eliminate a provision that would have
required public agencies to provide access to computer-stored records in
any format requested that the agency itself used, barring circumstances
that would render such accommodation "unreasonable."
Gov. Pete Wilson last fall vetoed a bill by Kopp that contained the
provision (and a similar measure by Assembly Member Debra Bowen (D-Marina
del Rey)), contending that the "reasonableness" issue would lead
to costly litigation.
The bill as modified -- whose remaining chief feature is incorporation
of a list of hundreds of existing statutes that may operate as exemptions
from disclosure -- is set for hearing June 22 in the Assembly Committee
on Governmental Organization.
Back to top
July
Public Records Act a Failure, Says Legislative
Task Force
"The California Public Records Act (CPRA) has been turned into
a paper tiger by state officials who know they face no penalty if they
refuse to release public information."
So begins the executive summary of a scathing report card issued July
13 by a little-known legislative watchdog unit which has had its own frustrations
in getting access to information from public officials in the executive
branch.
The report, "KEEP OUT: The Failure of the California Public Records
Act," is available on the Internet in both summary and full versions
at http://www.assembly.ca.gov/oversight.
It gives failing grades to the efficacy of the 30-year-old statute, originally
intended to be the California equivalent of the federal Freedom of Information
Act, but since then "interpreted, reinterpreted and fiddled with to
the point that it has become of little appreciable value to the public."
The report is the product of the Joint Legislative Task Force on Government
Oversight, a unit established by the Assembly and Senate in 1996 to investigate
and inform lawmakers on the effectiveness of various state programs. Titles
of past reports include:
- "The Longest Wait In Government...The Office of Administrative
Law";
- "Commission on Teacher Credentialing: Teacher fees fund first-class
hotels and cabs for commissioners";
- "Why pay less... When you can pay more! Department of General
Services eliminates automatic discount buying program";
- "How DMV Policies Promote Driver's License Fraud";
Other arrestingly-titled, consumer-oriented reports address such issues
as wasteful vehicle purchases, aging and uninspected fuel pipelines, reduced
competition and higher prices at the gas pump, governmental competition
with the private travel agency industry, water pollution caused by a "cleaner
fuel" additive, the state sesquicentennial boondoggle, caller frustration
with state toll-free information phone systems, illegal charges on tax
penalties by the Employment Development Department, and a San Diego project
to reclaim sewage water for drinking.
"KEEP OUT" identifies six solutions needed to make the Public
Records Act effective:
1. "Complete revamping of the language in the CPRA so it can be
easily understood";
2. "Clarification of the time-frame requirements for compliance
ordenial";
3. "Consolidation of the hundreds of scattered exemptions";
4. "Automatic sunset of exemptions and review of the CPRA":
5. "Single-subject requirement for new exemption legislation";
6. "Sanctions that will make compliance preferable to denial."
The report stresses the last recommendation as crucial:
"Government officials know that there is little cost when they
refuse to comply with the CPRA. They can cite a statutory exemption as
reason for denial on the assumption that the requestor (sic) will not question
the validity of or follow-up the denial. If an agency is taken to court
on a CPRA violation, the official responsible for the denial is not held
accountable and, in a case where an agency is found in violation, the attendant
costs of the suit and any awards are paid with tax dollars. Government
officials have little reason to comply other than civic duty. The CPRA
is law without teeth.
"In fact, it has been suggested that there is a greater incentive
NOT to comply with a public records request than to comply. If the records
requested have the potential to embarrass an agency or official, suggest
questionable policies or practices, or reveal conflict-of-interest or illegal
activities, the cost of disclosure may be far greater to an agency than
the odds that a requestor will actually pursue a denial through the courts"
(emphasis in the original).
The report cites several examples where journalists have experienced
difficulty in procuring public records. In one case Steve Geissinger, of
the Capitol bureau of Associated Press, ("Secret Government,"
8/10/87), submitted requests seeking electronic records electronic copies
of records to 29 agencies, of which only seven provided the records in
either electronic or paper form.
The real impetus for the report, prepared at the request of Senator
Byron Sher (D-Palo Alto), was the task force's own inability to obtain
records from the Department of Insurance. As noted in the report,
"In November 1997, the Task Force undertook a review of the general
policies and practices of the California Department of Insurance. Since
his election to office in 1994, current Commissioner Chuck Quackenbush
has come under continuous fire by consumer organizations and his own staff
for instituting policies viewed as friendly to the insurance industry at
a very high cost to consumers and ratepayers. Task Force staff began research
on some of the criticized programs and policies with the intent of determining
whether or not these criticisms were warranted...
"From November 1997 to January 1998, staff made several document
requests pursuant to the provisions of the CPRA...for such public documents
as copies of audits by the Department of Finance and California State Auditor,
the minutes of meetings of advisory boards made up entirely of insurance
agency representatives, copies of consumer satisfaction survey questions,
etc.
"The Department did not respond to any of the requests in the timeframe
required by law and, on January 16, provided a broad list of exemptions
under which they denied all requests. However, none of the exemptions cited
were tied to a specific request and none of the exemptions could be applied
to any of the requested documents. Not one piece of requested information
was provided to the Task Force."
Senator Sher has asked the Senate Rules Committee for authority to hire
a law firm to sue the department for the withheld records, but the request
awaits the next meeting of the committee, which may not occur until August.
Comment: One of the more interesting sections
of the executive summary reviews the sunshine approaches of three other
states which journalists cited to the task force as above average in effectiveness.
- Florida has a provision in its constitution (therefore insulated from
legislative weakening) which provides access to proceedings and records
in all three branches of government. Its enabling legislation includes
the Sunset Review Act, under which 20 percent of the exemption statutes
-- the "loopholes" -- are up for review and repeal every year
unless specifically re-enacted. Another constitutional provision requires
any bill introducing a new loophole to be in single-subject form, not buried
in some other legislation, thereby flagging the issue for capitol-watchers.
Such bills must furthermore indicate why the exemption will benefit the
public.
- Connecticut has a Freedom of Information Commission, a state agency
in many respects comparable to California's Fair Political Practices Commission,
in that it takes complaints of violations of the sunshine laws and can
issue subpoenas, conduct investigations and hearings, issue opinions and
orders, impose penalties and even provide compliance training for public
agencies and officials. Commission orders are subject to court review in
a case brought by either party, but are otherwise binding. The executive
director has permanent civil service status and the commission's five members
are appointees of the governor, subject to legislative confirmation. In
the past three years the commission has disposed of 698 complaint cases
-- all with a staff of 13 and an annual budget of $886,000.
- Kentucky's law provides that denial of access to public records is
the basis for a complaint to the attorney general, who then has 20 days
to issue an opinion as to whether the law has been violated. If neither
party appeals the opinion in court, after 30 days it has the force of law.
Requesters who prevail in court recoup their costs and attorney fees, and
the official responsible for denying access can be subject to a $25 fine
for every day the accessible public record was withheld. Most attorney
general's opinions go unchallenged by the affected agencies.
In combination, these approaches provide for a complete and vastly superior
scheme for a public information law worthy of its name, with attentive
control over the erosion of access in the legislature, systematic scrutiny
of loopholes to eliminate a backlog of no longer viable secrecy, and official
responsibility taken for supporting access enforcement at the highest level,
coupled with real penalties to discourage arrogant defiance of the law.
The task force has discovered what everyone below the level of the Legislature
has known for years: the Public Records Act is a failure, and is designed
to fail. The question now is whether lawmakers will simply say, "I'm
shocked -- shocked!" and continue business as usual, or instead give
citizens (and each other) the tools to make public information policy work.
If you have some views and/or experiences on the subject, you may want
to make them known to Senator Sher: by e-mail addressed to Senator.Sher@sen.ca.gov;
by mail at State Capitol Room 2054, Sacramento, CA 95814 or by phone at
916/445-6747.
Back to top
August
A.G. Candidate Stirling Lukewarm on CFAC's
Sunshine Issues
Dave Stirling, Republican candidate for attorney general in the November
elections, is not hostile to freedom of information and open government
values. But as measured by his responses to a short list of pointed questions
posed by CFAC, he often thinks law enforcement concerns are a priority.
Stirling, to his credit, is the first of the four major party candidates
(two for attorney general, two for governor) to provide answers to CFAC's
positioning questions, sent to the contenders before the primary. He did
so in a 90-minute interview August 20 in his Sacramento campaign office.
The questions, and the essence of his answers, are as follows:
Q: Would you support a bill bringing public access to closed criminal
cases in California in line with the provisions covering the FBI and other
federal agencies under the federal Freedom of Information Act?
A: Stirling "would be prepared to move in a more open direction,"
including support for some kind of bill that might approximate the FOIA
approach. But he is particularly concerned about disclosing previously
unpublicized investigation results, when complaints about an individual
are determined to be groundless.
Q: Would you support legislation to establish a state open government
and public information commission similar to one that exists in Connecticut?
A: Stirling is "not convinced this remedy is necessary," and
says that scaling such an enforcement arm to deal with California's size
might create a very expensive state agency. He believes that by and large
the existing reliance on private litigation to enforce the laws is adequate.
He has not seen the Joint Legislative Staff Task Force report, recently
issued, which calls the Public Records Act a "paper tiger" for
want of realistic compliance enforcement.
Q: Would you support legislation disapproving County of Los Angeles
v. Superior Court (Kusar) and clarifying that information made accessible
under the California Public Records Act remains permanently accessible
unless expressly stated to the contrary?
A: When it was explained to him that the case held that archived arrest
records are not public because they should not be used to research police
brutality incidents, Stirling indicated he would be unlikely to support
a legislative correction of that holding.
Q: Would you support legislation disapproving Rivero v. Superior
Court and clarifying that counties and cities do not illegally interfere
with district attorneys and law enforcement agencies when they impose information
disclosure requirements (as part of their local "sunshine ordinances")
no more stringent than those covering the FBI and other federal agencies
under the federal Freedom of Information Act?
A: Stirling agreed with the court in Rivero that it would be
undesirable to have diversity in policy among local law enforcement agencies
as to what information was and was not public. He noted that a district
attorney's unexplained failure to prosecute (the inciting circumstance
in Rivero) could be checked by a request by any "interested
person" to the attorney general to step in -- providing sufficient
facts were presented to make such intervention compelling.
Back to top
Kopp Public Records Bill Passes; Contains
Possible Exemption List
A stripped-down Public Records Act bill on Governor Pete Wilson's desk
would, if signed, nevertheless leave the text of the law much thicker,
listing as it does most of the potential exemptions from disclosure found
outside the Act.
SB 143, which recently passed both houses of the legislature by unanimous
votes, would make several minor adjustments in the law in terms of substance,
but would roughly double the size of the statutory text.
Every section of every volume of the California Codes which has or even
might have the effect of reducing information available under the Public
Records Act will, if the governor signs the bill, be listed with a title-like
description and citation to the code section. There are several hundred
code sections on the list, but a fair number are redundant in the sense
of applying the same general policy exemption to a variety of different
records. There are, for example, 19 separate code sections dealing with
confidential treatment of AIDS-related medical information.
The potential exemptions list is an attempt to give citizens a sense
of what is and is not accessible information without having to own an entire
set of the California Codes. It parallels the "Secrecy
Statutes" list on CFAC's Web site, except that the latter organizes
the exemptions under 16 subject matter headings, from Assessment and Taxation
to Welfare and Social Services.
A related provision in the bill, intended to limit the creep of hidden
loopholes, states that in the future, any bill introducing a new secrecy
provision must explicitly be referenced in and amend the Public Records
Act. While this need not bind subsequent sessions of the legislature, it
may serve as a reminder to the legislative counsel's office to flag new
loopholes using this procedure.
Other provisions:
- clarify that an elected official of any state or local agency has the
full rights available to any other person under the Act; and
- add two state agencies to the list of entities that must adopt and
post access regulations.
SB 143 is a follow-on to a bill by Kopp vetoed last year. The governor
objected to a requirement that public agencies provide access to records
in any electronic form in which they themselves maintained the information,
unless "unreasonable" to do so. All reference to electronic records
access was removed from SB 143.
Back to top
September
New Law Improves Access to Backup for
Civil Grand Jury Reports
Governor Pete Wilson has signed into law a bill that will allow grand
juries to release documentary material accumulated in preparing their final
report in a civil investigation.
SB 2100 by Senator Richard Polanco (D-Los Angeles) is a legislative
reaction to a 10-year-old ruling by the California Supreme Court (McClatchy
Newspapers v. Superior Court, 44 Cal.3d 1162). That case held that
grand juries do not have the right, with or without approval of a supervising
judge, to release such materials as testimony transcripts, memos and other
records relied upon in writing the final report.
The effect of this secrecy has been twofold. First, the local government
entities criticized in a final report find it easier to dismiss, detract
or even deny the grand jury's conclusions, since the latter cannot show
the public the raw evidence it accumulated in reaching its findings. Second,
public agencies wanting to correct a situation sometimes need to conduct
a wasteful backtracking over the same ground, without benefit of the material
the grand jury acquired or generated.
Such was the situation discovered by the Los Angeles County grand jury,
which in a special report on the problem noted that a prior year's grand
jury: "made recommendations based upon investigation and an audit
which identified tens of millions of dollars owed to a government agency.
The grand jury was not permitted to publish the audit because it was deemed
to be raw evidentiary material. As a result, the agency had to spend several
thousand dollars and many months to replicate the results of the grand
jury audit in order to collect the money due."
The authority provided by SB 2100 is not unqualified. The release of
the material must be approved by the court supervising the grand jury;
privileged material may not be released; nor may names of witnesses or
information that would identify anyone providing information, or "any
testimony or materials of a defamatory or libelous nature."
Comment: It's not clear what the last phrase is intended to mean. Much
of the more interesting testimony or documentary evidence placed in the
record of a trial, for example, is "defamatory" because of its
tendency to injure reputation - to portray people as fools or knaves, or
institutions as inept or unwholesome. But this material is never "libelous"
because the latter term refers to a defamatory statement which is not only
false but unprivileged, and by definition all statements entering the record
of a trial are, however defamatory they may be, privileged.
If the bill is to be read as authorizing judges to suppress information
on the ground that it is injurious to reputation, there may be less here
than meets the eye. That interpretation would be particularly ironic because
release of underlying documentation would be one way for a grand jury to
say to the public, "Judge for yourself." And that option could
be very attractive in some cases, since grand jurors can be sued for libel
for what their final report says.
Back to top
Court: Those Who May Sue Agency Can Use
Public Records Act
So long as a person has not yet commenced legal action against a public
agency, he or she may use the California Public Records Act (CPRA) to obtain
information about the agency relevant to a potential lawsuit against it.
So ruled the California Court of Appeal, Second District, recently in
Wilder v. Superior Court (Los Angeles County MTA), Case No. B122407
(8/19/98).
Rosemary Wilder allegedly was struck by a Blue Line train at a pedestrian
grade crossing in Long Beach in November 1997. Before filing suit she had
her attorney send the Los Angeles County Metropolitan Transportation Commission
(MTA), which runs the area's rapid transit system, a request for documents
under the CPRA. Included in the request were engineering materials, diagrams,
train operators' instructions, and pedestrian accident reports, including
but not limited to hers.
MTA refused to provide the latter, on two grounds. First, it argued
they were exempt as documents prepared in anticipation of litigation or
"personnel-related." But also, it contended that use of the CPRA
was simply not available to Wilder because she already had a "plain,
speedy and adequate remedy at law," namely to file a claim for damages
and use discovery procedures.
When Wilder filed a CPRA action in court, the trial judge agreed with
the MTA and dismissed the suit. But the Second District reversed, reasoning
that:
· Wilder "did not cease to be a 'member of the public' when
she was struck by the Blue Line";
· The CPRA requires disclosure to every person in the state,
"without exception," and specifically makes "no exception
for persons who may potentially have a claim for damages against a government
agency"; and
· "It is not the prerogative of the courts to insist
that petitioner employ one type of remedy over the other where the Legislature
has expressly made both equally available."
Back to top
A.G. Candidate Stirling Lukewarm on CFAC's
Sunshine Issues
Dave Stirling, Republican candidate for attorney general in the November
elections, is not hostile to freedom of information and open government
values. But as measured by his responses to a short list of pointed questions
posed by CFAC, he often thinks law enforcement concerns are a priority.
Stirling, to his credit, is the first of the four major party candidates
(two for attorney general, two for governor) to provide answers to CFAC's
positioning questions, sent to the contenders before the primary. He did
so in a 90-minute interview August 20 in his Sacramento campaign office.
The questions, and the essence of his answers, are as follows:
Q: Would you support a bill bringing public access to closed criminal
cases in California in line with the provisions covering the FBI and other
federal agencies under the federal Freedom of Information Act?
A: Stirling "would be prepared to move in a more open direction,"
including support for some kind of bill that might approximate the FOIA
approach. But he is particularly concerned about disclosing previously
unpublicized investigation results, when complaints about an individual
are determined to be groundless.
Q: Would you support legislation to establish a state open government
and public information commission similar to one that exists in Connecticut?
A: Stirling is "not convinced this remedy is necessary," and
says that scaling such an enforcement arm to deal with California's size
might create a very expensive state agency. He believes that by and large
the existing reliance on private litigation to enforce the laws is adequate.
He has not seen the Joint Legislative Staff Task Force report, recently
issued, which calls the Public Records Act a "paper tiger" for
want of realistic compliance enforcement.
Q: Would you support legislation disapproving County of Los Angeles
v. Superior Court (Kusar) and clarifying that information made accessible
under the California Public Records Act remains permanently accessible
unless expressly stated to the contrary?
A: When it was explained to him that the case held that archived arrest
records are not public because they should not be used to research police
brutality incidents, Stirling indicated he would be unlikely to support
a legislative correction of that holding.
Q: Would you support legislation disapproving Rivero v. Superior
Court and clarifying that counties and cities do not illegally interfere
with district attorneys and law enforcement agencies when they impose information
disclosure requirements (as part of their local "sunshine ordinances")
no more stringent than those covering the FBI and other federal agencies
under the federal Freedom of Information Act?
A: Stirling agreed with the court in Rivero that it would be
undesirable to have diversity in policy among local law enforcement agencies
as to what information was and was not public. He noted that a district
attorney's unexplained failure to prosecute (the inciting circumstance
in Rivero) could be checked by a request by any "interested
person" to the attorney general to step in - providing sufficient
facts were presented to make such intervention compelling.
Back to top
Kopp Public Records Bill Passes; Contains
Possible Exemption List
A stripped-down Public Records Act bill on Governor Pete Wilson's desk
would, if signed, nevertheless leave the text of the law much thicker,
listing as it does most of the potential exemptions from disclosure found
outside the Act.
SB 143, which recently passed both houses of the legislature by unanimous
votes, would make several minor adjustments in the law in terms of substance,
but would roughly double the size of the statutory text.
Every section of every volume of the California Codes which has or even
might have the effect of reducing information available under the Public
Records Act will, if the governor signs the bill, be listed with a title-like
description and citation to the code section. There are several hundred
code sections on the list, but a fair number are redundant in the sense
of applying the same general policy exemption to a variety of different
records. There are, for example, 19 separate code sections dealing with
confidential treatment of AIDS-related medical information.
The potential exemptions list is an attempt to give citizens a sense
of what is and is not accessible information without having to own an entire
set of the California Codes. It parallels the "Secrecy Statutes"
list on CFAC's Web site, under "Public Information" at http://www.cfac.org,
except that the latter organizes the exemptions under 16 subject matter
headings, from Assessment and Taxation to Welfare and Social Services.
A related provision in the bill, intended to limit the creep of hidden
loopholes, states that in the future, any bill introducing a new secrecy
provision must explicitly be referenced in and amend the Public Records
Act. While this need not bind subsequent sessions of the legislature, it
may serve as a reminder to the legislative counsel's office to flag new
loopholes using this procedure.
Other provisions:
· clarify that an elected official of any state or local agency
has the full rights available to any other person under the Act; and
· add two state agencies to the list of entities that must adopt
and post access regulations.
SB 143 is a follow-on to a bill by Kopp vetoed last year. The governor
objected to a requirement that public agencies provide access to records
in any electronic form in which they themselves maintained the information,
unless "unreasonable" to do so. All reference to electronic records
access was removed from SB 143.
Back to top
October
Oral Argument Monday in CFAC's Public
Records Case against Governor Wilson
This Monday, September 21, the Third District Court of Appeal will hear
oral argument in California First Amendment Coalition v. Superior Court
(Wilson), the Public Records Act case testing the limits, if any, of the
secrecy surrounding a governor's decision-making process.
More than two years since the papers were filed with the Third District,
it is taking up a legal issue already ruled upon by the Second District
in another case, namely: Is information about those applying to the governor
to be appointed to a vacancy on a board of supervisors a matter of public
record?
The Second District ruled late in 1996 in Wilson v. Superior Court (Los
Angeles Times) that 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.
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 the Second District 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."
Back to top
Governor Signs Bill Listing Exemptions
to Public Records Act
The text of the California Public Records Act will swell to more than
twice its present size on January 1, thanks to Governor Pete Wilson's September
19 signature of SB 143.
The bill, by Senator Quentin Kopp (Ind-San Francisco) expands the Act
with the addition of a list of most, if not all, sections elsewhere in
the California Codes that could operate as exemptions from disclosure under
the Act. The list identifies the code sections by a title tag, but there
is no attempt to describe the content or effect of the exemption.
Comment : Few of these pre-existing exemptions are controversial, or
even encountered by journalists and others invoking the Act to obtain public
records. There is a high degree of redundancy, with many of the exemption
representing the same protective policy applied to the same kind of
information occurring in different types of documents.
Back to top
Court: Records Must Be More Than Revelant
to be Litigation-Exempt
Police reports and other records created in the normal course of a public
agency's operations do not become exempt from disclosure later simply because
of their relevance to a new lawsuit involving the agency.
So ruled the California Court of Appeal, Second District, September
30, in Fairley v. Superior Court (City of Long Beach), Case No. B122829.
The court's holding gives judicial approval, in effect, to an interpretation
of the California Public Records Act (CPRA) provided ten years ago in an
attorney general's opinion (71 Ops.Cal.Atty Gen. 235). That opinion concluded
that the fact that an arrest report may become relevant to a later police
brutality case filed against the arresting officer's employer, for example,
does not transform the report from its status as a public record into a
document exempt from disclosure as "pertaining to pending litigation"
(Government Code Section 6254 (b)).
In this case, plaintiff John Fairley was arrested by Long Beach police
for violating a restraining order, then later, after filing a false arrest
claim against the city, filed a CPRA suit to obtain copies of the arrest
report and several related documents. The trial court upheld the city's
initial refusal to supply the records (which were ultimately provided),
on the basis of Section 6254 (b). The court reasoned that litigants against
a public agency should not be allowed to use the CPRA as an "end run"
around the limitations of ordinary civil discovery.
But the court of appeal disagreed, adopting instead an approach suggested
by the court in an earlier case, namely that "a document is protected
from disclosure (under 6254 (b)) only if it was specifically prepared for
use in litigation" (City of Hemet v. Superior Court (Press-Enterprise),
18 Cal.App.4TH 588). Or putting it differently, the exemption is not to
be expanded simply to "cut off access to documents relevant to later-instituted
litigation."
Comment: In footnote 5, the opinion stakes out a point that could be
a barrier to access in certain cases. It concludes that the disputed exemption
-- 6254 (b) -- is not simply a restatement of the attorney's work product
rule, which is already applicable to material generated by a public agency
lawyer in preparing for a case, whether communicated to the client or not.
Instead, the exemption "confers upon public agencies a broader exemption
from disclosure by protecting the 'work product' generated by a PUBLIC
AGENCY in anticipation of litigation" (emphasis added).
The potential result: when anything faintly controversial or dubious
occurs, public agency officials -- not their attorneys -- conduct an investigation
and stamp the results "Confidential: Prepared in Anticipation of Potential
LItigation." It is already too frequently the case that inquiries
into serious problems in government are effectively buried for months,
years or permanently by having the attorney conduct the investigation and
then designate it as work product. If, as this footnote suggests, the attorney's
involvement is not required in order to invoke a "client's work product"
exemption, the situation may worsen considerably.
Back to top
CFAC To Seek High Court Review in Governor's
Records Case
Governor Pete Wilson was within his rights in refusing to share with
the public the names and self-submitted credentials of those who sought
his appointment to fill a county supervisorial vacancy.
So ruled the California Court of Appeal for the Third District last
week (October 9) in California First Amendment Coalition v. Superior Court
(Wilson).
The opinion is so troubling a setback for public access law that next
week CFAC will ask the California Supreme Court to grant review in the
case.
The court concluded that the records sought by CFAC -- forms submitted
by applicants for the governor's appointment to a vacancy on the Plumas
County Board of Supervisors, revealing not only their identity but their
own professed qualifications for the position -- were exempt from disclosure
from the California Public Records Act (CPRA) for either or both of two
reasons.
First, the forms were protected by the exemption for governor's correspondence
(Government Code Section 6254 (l)). "In our view, the correspondence
exemption was intended to protect communications to the Governor and members
of the Governor' s staff from correspondents outside of government,"
said Justice Vance Raye for the court, rejecting CFAC's argument that an
informational form filled out to be considered for a public office is not
similar enough to a letter to merit the exemption.
Second, the information would tend to reveal options presented to the
governor for decision, and thus would independently qualify for the deliberative
process privilege, a basis for exemption announced by the high court seven
years ago in Times Mirror Co. v. Superior Court (Deukmejian), in which
public access to a governor's appointment calendars was rebuffed.
The latter rationale was used by the Second District Court of Appeal
two years ago in reversing a trial court order to release to the Los Angeles
Times the names of those considered for the governor's appointment to an
Orange County supervisorial seat (Wilson v. Superior Court). But the latest
ruling goes even further, suggesting that no evidence need be shown to
support the argument that office-seekers would be inhibited by public exposure
of their bids for appointment. Such a proposition is, in effect, so common
an item of knowledge of "the way the world works" that courts
are entitled to presume disclosure would be irremediably harmful, according
to the opinion.
The court rejected CFAC's contention that, unlike any other appointment
power enjoyed by the governor -- members of his own administration, or
judges, for example -- this case involved a position that was normally
subject to local voter choice, and thus involved a unique level of legitimate
citizen interest in the decision. The court's rationale, in so many words:
1) Considering the candor of the answers sought and given in the application
process, few if any would apply if the responses were to be public;
2) Once the appointment is made, the press or others are free to try
to dig out the truth prior to the next election at which voter confirmation
or rejection occurs;
3) While the office may be local and electoral rather than statewide
and appointive, no statute indicates that this kind of appointment is to
be any less confidential; and
4) Even if the information were ordered released in this case, a governor
could always avoid exposure in the future by dispensing with written applications
in gathering information about office-seekers.
Comment: If you or an organization you represent cares about seeing
this case reversed or even narrowed, contact CFAC General Counsel Terry
Francke immediately for information about sending the supreme court a letter
supporting a grant of review. Although the odds for getting review are
very long, the need for review is very pronounced in this case, which has
two equally disturbing levels of consequence.
One affects the governor per se, with respect to whom:
-- the CPRA expressly grants a complete discretionary exemption for
all papers after leaving office;
-- the CPRA as judicially construed provides an exemption for all papers
generated while in office that might provide insight into executive decisions
(the deliberative process privilege as applied by the state supreme court
in Times Mirror v. Superior Court, the 1991 appointment calendar case);
and
-- the CPRA as judicially construed (in this case) exempts even material
transmitted to the governor's office from the outside world, period.
What this leaves accessible within the governor's office other than
things like operator's manuals for copying machines is hard to imagine.
The summit of the executive branch is as exempt from the Act as the other
two branches.
The other level is local government. The CPRA has already been interpreted
(via the deliberative process privilege) to exempt records identifying
the recipients of phone calls placed by members of a city council on official
business. There is little to prevent a court from taking CFAC's case and
applying it likewise -- to information received from outside the agency
that might provide insight into the thinking of a city council or school
board.
There is some hazard in taking this issue before any court, since judges
themselves are initially appointed and many may be nervous about the confidentiality
of the application process. One of the three judges on the Third District
panel which has ruled against CFAC in this case, for example -- and the
one who was the most aggressive in questioning CFAC's counsel, James Chadwick,
during oral argument -- is George Nicholson. He was the plaintiff in Nicholson
v. McClatchy Newspapers, a case in which the Sacramento Bee was held to
be constitutionally protected in obtaining and quoting from a leaked (and
unflattering) evaluation of his qualifications by the State Bar, after
he was nominated by the governor for a judgeship.
But the alternative is either depublication, review or living with a
government increasingly insulated from precisely the scrutiny most people
think is at the heart of public information policy: scrutiny not just of
ultimate decisions but of the route taken to get there -- options considered,
options ignored, identities and arguments of those with special influence,
and other process issues.
If all that counted were the decisional result, there would be no reason
to have open sessions of boards, councils, commissions or, for that matter,
legislatures or courts: a public minute or two for announcing ultimate
policies, rulings or verdicts would suffice, and the ballot box would be
a sufficient nod, sooner or later, to public involvement. Lest there be
any doubt that this is precisely where the Third District is driving, consider
its approving quotation of the statement of a federal court to the effect
that "officials should be judged by what they decided(,) not for matters
they considered before making up their minds."
Back to top
On-line Database Helps Voters Track Campaign Contributions
California voters have a new tool to help them follow the money behind
this year's campaigns, thanks to an Internet database of campaign contributions
built for the nonprofit California Voter Foundation (CVF), and accessible
at http://www.calvoter.org.
"There's no better way for voters to make informed choices than
to find out who's funding a candidate or measure," said CVF President
Kim Alexander, noting that about $300 million is raised and spent in a
typical California election year. "Our new database allows voters
and reporters to easily discover who's behind the TV commercials that are
now flooding California airwaves. For the first time in history, the public
has convenient access to campaign contribution data when it's needed most
-- before election day."
Both gubernatorial candidates Gray Davis and Dan Lungren's contributions
are included in the database, as well as contributions from both sides
of Proposition 5, the Indian gaming initiative, and Proposition 10, the
early child care/tobacco tax initiative. The database currently features
contributions for 12 of the 16 major-party statewide candidates, and most
of the major ballot measure committees.
The database was made possible by the Online Disclosure Act, passed
in 1997, which requires all statewide candidates and ballot measure campaigns
to file their disclosure reports on computer disk as well as paper during
the current campaign season. The filing requirement precedes a mandatory
electronic filing program to be implemented for the year 2000 election
cycle. In anticipation of the mandatory program, Secretary of State Bill
Jones launched a voluntary electronic filing program, and has also posted
campaign finance data for several participating candidates on the secretary
of state's web site.
A team of Compaq research engineers built the searchable database by
combining the secretary of state's records with those filed on diskette.
They designed the database to allow the public to browse, search and sort
the contribution records of statewide campaigns in a variety of ways --
by name of contributor, amount, date, occupation, employer, city or state.
A new feature will soon be added that will allow visitors to download records
as well.
The database currently includes the first round of contributions filed
for the November General Election, received between July 1 and September
30, 1998, and will be updated several times during the election season.
Late contribution reports, which disclose contributions of $1,000 or more
received in the final two weeks and must be filed within 24 hours of receipt,
will also be included in the contributions database once the reporting
period begins Monday (October 19).
Back to top
San Francisco's New NonProfit Sunsine
Law Takes Effect
Effective tomorrow (October 17), nonprofit organizations which contract
with or receive grants from the city of San Francisco to provide goods,
services, programs, events or structural facilities to the public, or otherwise
to support their own operations –– and which get at least $250,000
in city funding to do so -- will have to operate slightly more openly than
before, and with greater "customer" involvement.
Legislation carried by Supervisor Tom Ammiano and passed by the board
of supervisors in June will require any nonprofit applicant, as a condition
of receiving the funding, to make a commitment to:
-- allow public attendance at two (at least) "typical" meetings
of its board of directors per year. For these open meetings, the entity
will have to file a 30-day advance notice with the clerk of the board of
supervisors for posting, and provide the same information (date, time and
location) to inquiring citizens. Citizens attending must be allowed to
address the directors on matters of public interest relating to its operations.
Closed sessions are allowed for client or donor confidentiality, attorney-client
privilege, trade secret protection, employee hiring or performance, or
real estate acquisitions.
-- provide for public inspection and copying, on its own premises, the
entity's most recent budget as provided to the city in a grant or contract
application, its most recent tax returns, any financial audits or performance
evaluations done within the previous two years by the city or at its request.
Exempt from disclosure are the amounts, sources or nature of contributions.
-- make good faith efforts to include on its board at least one member
of any particular community or constituency served by the nonprofit. Steps
must include public notice of board vacancies, acceptance of self-nominations
from the public, and allowance -- at one of its annual open board meetings
-- of public comment on "board membership issues."
The city departments have been revising their request for proposal and
contract forms since the summer, advising nonprofit applicants and proposers
of the new conditions.
In addition, nonprofits affected by the new rules will be required to
accompany their applications or proposals with disclosures of any complaints
received from the public during the preceding two years concerning compliance
with the meetings, records and community involvement rules -- as well as
indications of how the complaints were dealt with.
Failure to fulfill one or more sunshine terms can be cause for termination,
nonrenewal or both of a city funding agreement.
COMMENT: The notion of requiring sunshine policies of nonprofits receiving
substantial chunks of taxpayer funds was part of the original draft of
the sunshine ordinance proposed to the city five years ago by CFAC, but
ultimately rejected in negotiations with the city attorney. This is a paler
version to some extent, but in other senses more demanding, e.g. requiring
affirmative disclosure of citizen complaints and affirmative efforts to
involve those who are supposedly direct beneficiaries of the services.
What gave the whole concept new life was the contention of a number of
advocates for services to AIDS patients in recent years that some of the
more prominent city-subsidized nonprofits ostensibly serving that clientele
were not sufficiently open and responsive to community needs.
Back to top
Poll Shows Likely Voters Support Strong Sunsine Laws, Enforcement
California voters overwhelmingly support significant changes in state
law to improve public access to information held by government, and they
believe that too many important government decisions are made behind closed
doors, according to a new statewide survey to be released this weekend.
In the first known poll of its type in the nation, sponsored by CFAC
and other sunshine and journalism advocates, voters sampled throughout
the state said, by large majorities, that they favor greater access to
government records and information used in the course of government business.
In addition, most voters believe government officials flout the state's
open records law too often, and refuse to release information that should
be made public. By a wide majority, they favor imposing civil or criminal
penalties for this conduct.
California law currently contains no penalty as such. If a person succeeds
in a Publc records Act suit and gets a court to order release of a public
record that has been wrongfully withheld, the winning plaintiff's court
costs and attorney's fees are ordered to be paid by the losing public agency.
But the actual amount awarded is left to the court's discretion, and typically
does not compensate all time invested by the plaintiff's attorney.
By an overwhelming margin, voters believe the public should have unfettered
access to much government information that is now closed to the public,
such as the disciplinary records and performance evaluations of public
employees, including those of judges, police officers, teachers, prosecutors
and prison guards. Seven in 10 likely voters support public access to the
names of public employees disciplined for negligence or incompetence on
the job, even in the absence of deliberate misconduct.
Political pollster Richard Maullin, of Santa Monica-based Fairbank,
Maslin, Maullin & Associates, forumulated the questions in consultation
with CFAC, the California Newspaper Publishers Association, the Society
of Professional Journalists (Los Angeles Chapter), the First Amendment
Project in Oakland and the Organge County Press Club.
The major costs of the $24,000 project were borne by the publishers
association and by a grant obtained by CFAC and the First Amendment Project
from the Dallas-based National Freedom of Information Coalition.
Maullin, who also arranged for the telephonic polling, said the results
should send a strong message to state lawmakers that the public wants far
more information than is currently available under the California Public
Records Act, which exempts hundreds of state record types from public disclosure.
Broad support for changes in the law suggest "that no segment of
the Legislature should be indifferent to this issue or fail to perceive
that a substantial majority of the public favors strengthening Freedom
of Information laws in California, Maullin said.
The poll shows that the public also favors increased access to the files
kept on children under court protection, if they are the suspected victims
of abuse, neglect or murder. The information, which is now closed to the
public, involves youngsters in foster homes and protective custody.
Similarly, the voting public believes that the names of juveniles who
commit serious crimes should no longer be kept confidential, nor should
their court records. There is also considerable support for releasing police
reports of crimes to the public, as well as the files of closed criminal
investigations -- both of which are generally kept confidential under current
California law.
In addition, more than eight in ten voters believe that information
regarding unsafe products should be released, even if sealed by a court
as part of a lawsuit settlement.
Although Governor Pete Wilson has twice vetoed the Legislature's attempts
to guarantee the public's right to computerized government information,
the poll found that an overwhelming majority of California voters -- about
eight in ten -- believe this information should be available in electronic
form so that people with home computers could review and analyze it.
In vetoing reform legislation that would have obligated government agencies
to surrender public information in electronic form, Wilson said it could
have proven too burdensome and costly for government agencies to provide,
even though the law allows agencies to recover their direct costs for copying
such information.
Overall, voters are so concerned about access that seven in ten said
they would support a state constitutional amendment that requires broad
disclosure, including all records that the government relies upon in making
policy decisions.
The measure they were asked to react to also would allow judges to order
the disclosure of information that is now confidential under current law
if the court finds there is an overriding public interest in disclosing
the information. The suggested amendment would declare categorically that
the "people of California have a fundamental right of access to government
records and meetings."
Although a current statute in the Government Code -- the California
Public Records Act -- states that the public now has such a right, it can
be overridden by other provisions in the law and myriad exemptions. The
constitutional amendment described in the poll would elevate the right
to know to constitutional status, superseding existing and conflicting
statutes.
The poll, the first devoted exclusively to public access issues nationwide,
was the brainchild of an ad hoc committee of the Los Angeles Chapter of
the Society of Professional Journalists.
The committee's members -- Ray Herndon, Dan Weikel and Jean Pasco, staffers
of the Los Angeles Times, and Timothy Alger, a media attorney with the
Los Angeles office of Gibson, Dunn & Crutcher -- enlisted the support
of two of the state's public advocacy groups,CFAC and the First Amendment
Project , and its oldest news media trade group, the California Newspaper
Publishers Association.
The poll of 800 likely California voters was conducted by telephone
over the period Sept. 2-8, 1998. Poll respondents were selected randomly
from an updated list of the state's registered voters who had participated
in recent statewide elections. The survey, which took an average of 24
minutes, has a margin of error of plus or minus 3.5 percent at the 95 percent
confidence level.
Although the poll was conducted during a period when there was considerable
media attention given to the release of information regarding President
Clinton and Monica Lewinsky, the pollster said there was nothing in the
poll results to indicate that the national issue affected responses to
the California survey.
Full results of the poll are posted on CFAC's web site, First Light,
at http://www.cfac.org.
Back to top
IN CONGRESS
Bills Affect Campus Crime Data, Online
Privacy and Censorship
Several measures moving in the waning days of the 105th Congress are
of special interest to CFAC members concerned about secrecy surrounding
crime on college campuses, law enforcement access to private online communications,
and censorship on the Internet.
Campus Crime Information
The first issue has been around throughout the 1990s, but despite corrective
litigation and legislation, is still looking for a comprehensive solution.
The simplest way to describe it is to say that once they are too old to
be dealt with by juvenile courts, young people who behave badly -- even
destructively and violently -- are treated differently depending on whether
or not they are enrolled in higher education. Conduct that would have put
their names on a police blotter had they been working for a living or unemployed
is often treated quietly and anonymously if the only records in question
are those of campus security forces or student body courts. For student
journalists on a college or university campus newspaper, the corollary
too often is their inability to report dangerous or deplorable conditions
arising on campus with the energy, detail and timeliness exhibited by the
commercial press in the external community.
The official reason given by campus administrators for the secrecy surrounding
student misbehavior -- even likely criminal conduct reported to college
police -- is federal and state student privacy law governing access to
"educational" records. A key court decision won by the Student
Press Law Center, plus clarifying legislation since then, should have made
it clear that crimes of violence, drug or alcohol abuse, or offenses against
property are not intended to be treated with any more secrecy on campus
than off. But so far some schools have not gotten the message, a reality
which suggests that the real reason for the secrecy is not so much concern
with student rights as with the campus's own reputation for safety and
order, or the lack thereof, among alumni, parents and prospective students.
The latest round of reform in this struggle is now represented in House
and Senate versions of amendments to the Higher Education Amendments of
1998, under study in a conference committee. As described on the Web site
of Security on Campus, a nonprofit group supporting greater information
access and protection for students threatened with violent campus environments
(http://www.soconline.org), the House version is preferred, mandating as
it does more specific and extensive disclosure of information in campus
police logs and student body court files. The site contains a suggested
letter to that effect, useful in contacting legislators.
Californians on the conference committee include two House members,
Rep. Howard McKeon of the 25th District (R-Santa Clarita), at (202) 225-1956;
and Rep. Matthew Martinez of the 31st District (D-Alhambra), at (202)
225-5464.
Back to top
Encryption and Online Privacy
The online privacy issue is summed up in the word "encryption,"
which in this context stands for software technology enabling private persons
and organizations to keep their computer systems and communications from
being easily entered and read by others, including both mischiefmakers
and law enforcement agencies. The problem faced by the latter is that commercially
developed and marketed encryption programs are now strong enough to be
proof against any kind of ready decoding. Permission obtained from a court
to tap into a suspect's e-mail means nothing to investigators who are technically
blocked from doing so.
The federal government's response has been twofold. First, it has banned
the exportation of all but the weakest and most easily overcome encryption
software, thus eliminating U.S. encryption entrepreneurs from competing
in the world market. The rationale is that unfriendly foreign governments
or terrorists must not acquire this insulation from U.S. surveillance;
opponents argue that only Americans are controlled by this regime, and
only Americans are hurt. In 1996 U.S. District Court Judge Marilyn Hall
Patel in San Francisco declared that the ban on exportation of encryption
algorithms (as "munitions") violated the free speech rights of
a mathematician who sought to make his work available internationally.
Secondly, the FBI has been seeking legislation to force citizens and
organizations to submit an electronic passkey to their encryption programs
to a kind of "escrow" third party, from which officers could
obtain them under a court order. Moving in opposition to the FBI proposal
is a bill, the "Security and Freedom Through Encryption Act"
(SAFE, HR 695), one of whose two principal co-authors is Rep. Zoe Lofgren
of the 16th Dist. (D-San Jose). More information on how it would protect
privacy, and how to make your views known, is found at the Web site of
Americans for Computer Privacy (http://www.computerprivacy.org/action).
Back to top
Internet Censorship
Finally, the Electronic Frontier Foundation (EFF) posted an alert Wednesday
(September 23) about the Senate Commerce Committee's consideration of a
"Son of CDA" bill (referring to the Communications Decency Act,
declared unconstitutional last year by the U.S. Supreme Court). The bill
would prohibit Internet posting of material "harmful to minors,"
and by that standard, "Congress's own posting of the Starr report
would likely violate H.R. 3783," says EFF. More to the point, it contends
that the standard would make much of the material carried by conventional
online bookstores such as Amazon unavailable.
"Harmful matter for minors" means material which, while not
so crudely prurient as to be classifiable as obscene for adults, is erotic
enough, and without sufficient justification, to be kept from casual access
by minors. In California, for example, periodicals meeting the harmful
matter standard can be kept out of street vending machines (unless an adult
attendant is assigned to keep youngsters from purchasing) and restricted
to zones within stores that are off limits to minors. Administering this
distinction would be more difficult in cyberspace, however, since it would
mean confining such non-obscene but "adult" material to areas
accessible only by password issued only to adults. Even if that were practical,
there remains the real censorship issue of drawing the line between material
about some aspect of sex and material which is so much about sex and nothing
else as to be legally classifiable as "harmful for minors." For
more information, see EFF's alert page (http://www.eff.org/hot/19980923_cda2_alert.html).
Back to top
November
New Education Act Seen As Great Advance
For Campus Media
Legislation which passed both houses of Congress in late September and
was signed by President Clinton on October 7 will have a dramatic effect
on the work of campus journalists, according to the Student Press Law Center
(SPLC). In terms of both access to information and freedom from censorship,
the new law creates requirements and recommendations that college and university
newspapers and news broadcasters may be among the first to exploit.
"Congress has made some dramatic strides in ensuring that college
and university students will have greater access to information they need
about their schools," said SPLC Executive Director Mark Goodman. "And
the fact that Congress has finally voiced its support for student free
expression is important."
(For full text of the law as amended by the recent legislation and other
material, see http://www.soconline.org/ONLINE/spj98.html)
Back to top
Freedom of Information
The most significant provision in the new law is that all higher education
campuses must now create and maintain a log of criminal incidents reported
to their institutional police or security
department and make that log open to the public. Although public schools
are already required to do this under state open records laws, private
schools will be forced to provide similar information. The provision says
log entries must include the nature, date, time, general location and disposition
| 
