UNITED REPORTING SEEKS FUNDS FOR SECOND PHASE
OF ACCESS FIGHT 12/31/99
United Reporting Publishing Corporation, fighting to restore its right
of access to arrestees' addresses in California, is passing the hat among
normally competing information companies and others interested in its cause
to raise a war chest for phase two of its legal battle. The company says
its goal is to raise $150,000 as soon as possible.
The money is needed to support attorney's fees and costs in going back
to court using different tactics than those recently found wanting by the
U.S. Supreme Court. In a 7-2 decision on December 7, the justices concluded
that United Reporting could not make a case that the law barring its access
was unconstitutional on its face.
That law, an amendment to the California Public Records Act provisions
on law enforcement information, states that the addresses of those arrested
may be made available only for journalistic, scholarly or governmental
purposes, and requires those allowed access to sign a declaration under
penalty of perjury that the address information will not be used to sell
goods or services.
The high court said United Reporting was in no position to attack this
restriction as being overbroad on its face, since this First Amendment
argument focused on speech restriction, and those whose speech would be
actually restricted, even indirectly, were United Reporting's customers
-- criminal defense attorneys, bail bondsmen and drug and alcohol counselors,
for example, who then mail the arrestees information and offers of help.
The court left open, however, the possibility of revisiting the matter
if United Reporting could show that its own rights were impinged because
it was not permitted to get the information for "journalistic"
purposes.
It is that avenue that United Reporting intends to pursue soon. It will
no doubt argue that it is qualified for the journalistic entree because
it publishes an Internet information service called United Reporter, which
carries a miscellany of genuine news, updated weekly. But its business
service is conveyed via a daily updated site called JailMail Register,
allowing attorneys and other professionals to subscribe and obtain address
information.
A description of the fundraising solicitation can be found at http://www.jailmail.com.
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A.G.: DISCLOSURE OF PEACE OFFICER PERSONNEL DATA
MAY BE A CRIME 12/31/99
A public official or employee's disclosure of confidential peace officer
personnel information may constitute a crime, although the legislature
has attached no specific criminal penalty to such conduct. The reason is
that a Government Code provision makes it a misdemeanor for any breach
of official duty by a public officer or employee.
So concludes an opinion (No. 99-503) issued December 22 by Attorney
General Bill Lockyer and written by Deputy Attorney Anthony S. DaVigo.
The issue concerns data affected by Penal Code Section 832.7, which
states:
"Peace officer personnel records and records maintained by any
state or local agency pursuant to Section 832.5, or information obtained
from these records, are confidential and shall not be disclosed in any
criminal or civil proceeding except by discovery pursuant to Sections 1043
and 1046 of the Evidence Code. This section shall not apply to investigations
or proceedings concerning the conduct of police officers or a police agency
conducted by a grand jury, a district attorney's office, or the Attorney
General's office."
Section 832.5 refers to citizen complaints alleging misconduct by peace
officers. These provisions create exceptional confidentiality for peace
officer disciplinary records, since the California Public Records Act has
been interpreted to mean that records of confirmed misconduct by public
employees as a whole are not protected by the personal privacy or other
exemptions.
The opinion assumes that "a disclosure has been made by an officer
of a law enforcement agency in violation of the statutory prohibition."
It notes that as a general rule a merely "illegal" act is not
prosecutable as a crime unless the statute making it unlawful specifically
provides for a criminal penalty -- and Section 832.7 mentions neither crime
nor penalty for a disclosure violating its disclosure restrictions. It
also observes that this is not an oversight, since a number of other confidentiality
requirements do criminalize wrongful disclosures.
Nonetheless, the opinion points to Government Code Section 1222, which
states:
"Every willful omission to perform any duty enjoined by law upon
any public officer, or person holding any public trust or employment, where
no special provision is made for the punishment of such delinquency, is
punishable as a misdemeanor."
The opinion cites a previously published opinion [76 Ops.Cal.Atty.Gen.
289 (1993)] which concluded that this statute could be used to prosecute
a member of a city council or other legislative body who wrongfully disclosed
confidential information from a closed session of the body, and summarizes:
"Similarly, here, we believe that the disclosure of confidential
information in violation of Penal Code section 832.7 ... may be prosecuted
as a breach of official duty under the terms of Government Code section
1222. Of course, the disclosure must be proved to be 'willful' to come
within the terms of the latter statute, among other requirements."
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ALERT: STATE PLANS TO DELAY SCHOOL RANKINGS RELEASE
TO PUBLIC 12/31/99
When the California Department of Education releases its rankings of
all public schools in terms of the 1999 Standardized Testing and Reporting
(STAR) program, district officials and principals will be told where their
schools fall on a 10-tier scale of performance levels. But the information
will not be made available to the press and public until 11 days later.
That timeline is contained in a December 17 letter to local school officials
from state Superintendent of Public Instruction Delaine Eastin, which provides
a heads-up on what the rankings will look like and what they mean.
What they mean may be less than meets the eye, since the ranking data
in the Academic Performance Index (API) are solely the results of the 1999
Stanford 9 test administered by the STAR program, and are not adjusted
for significant differences in the affluence of the school or district
or the concentration of poor families or students raised by parents whose
first language is not English.
The Stanford 9 is a broad-gauge test of skills administered to all grades
except first and 12th. Elementary and middle school students are tested
for reading, mathematics, written expression and spelling. High school
students are tested in reading, writing, mathematics, science and social
science.
The overall test results themselves, down to the school level, were
released in September. Due next month is the API, which assigns each school
to a given performance range representing one tenth of the schools in the
state, from lowest to highest. The API is new this year as the result of
the Public Schools Accountability Act, which was signed by Governor Gray
Davis last April as one of his primary educational reform programs.
While Eastin's December 17 letter tells school officials that it is
"difficult to overstate the importance of the release of the API,
(which Governor Davis called) the 'North Star' of school accountability
in California," the staging of its release is clearly designed to
give school officials some lead time to digest the rankings and come up
with explanations.
Accordingly, while January 14 is the date for the department to mail
the reports to district superintendents, and January 19 for county superintendents,
the department does not plan a general release to the public until January
25, when the rankings will also be posted on its Web site.
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PUBLICLY OWNED UTILITIES LIKELY TO SEEK NEW BUSINESS
SECRECY 12/17/99
The second half of the 1999-2000 legislative session in Sacramento is
likely to see utility districts lobbying for sweeping new secrecy provisions
in the Brown Act and the California Public Records Act. This time, the
information to be protected concerns "proprietary information"
sensitive in bargaining for power in the state's new deregulated utilities
era.
The first straw in the wind appeared Thursday, December 16 when the
board of directors of the Sacramento Municipal Utilities District (SMUD)
approved, on a 7-0 vote, a move to seek amendments to not only the Ralph
M. Brown Act -- the open meetings statute for local government agencies
-- but to the California Public Records Act as well.
The objective, in the staff's words, is to "exempt proprietary
contracts, i.e. customer service contracts and energy provider/purchaser
contracts and information related thereto, from the Public Records Act,
and authorize the legislative body of a publicly owned electric utility
to meet in closed session to discuss those contracts and other trade secrets."
The logical author to approach for such a bill would be Senator Jim
Brulte (R-Rancho Cucamonga), chairman of the Senate Republican Caucus and
the number two Republican position in the Senate. As an Assembly Member,
he was the principal author of AB 1890, the landmark "restructuring"
bill which in 1996 created, among other things, a new deregulated and competitive
environment for electrical utilities in the state.
Other lawmakers on the list to move the bill SMUD wants could be the
principal co-authors of AB 1890, including Senators Steve Peace (D-El Cajon)
and Byron Sher (D-Palo Alto) and Assembly Member Bill Leonard (R-Rancho
Cucamonga).
The problem as seen by SMUD staff is that its contracts to supply customers
as well as those to buy power from other providers "take on a proprietary
nature in a competitive environment," meaning that "their ill-timed
disclosure can have a negative effect on the District's ability to compete
for the lowest prices as a purchaser or strike the best deal as a seller
for the overall benefit to ratepayer-owners."
Likewise, the Brown Act provides no authority even to discuss contract
negotiations in closed session. This dual exposure to public monitoring
is one not faced by the investor-owned public utilities and independent
energy service providers that SMUD must deal with.
This imbalance, says SMUD staff, places it and other publicly owned
utilities "at a distinct disadvantage in retaining customers, acquiring
new customers, renewing power supply agreements and negotiating new agreements
at the best prices."
The draft legislation reviewed by the SMUD board would exempt from disclosure
the "records of a publicly owned electric utility ... that relate
to the terms and conditions of an energy service agreement between the
district and a customer of the district, a power purchasing agreement between
the district and a power provider, a power sale agreement between the district
and a power purchaser, or a fuel purchasing agreement between the district
and a fuel provider, or to negotiations with the parties to those agreements
for a period of three years after a contract is fully executed."
The legislation would also amend the Brown Act to allow closed sessions
of SMUD and other power agency boards to discuss the records described
above, as well as discussion or action on "trade secrets," and
the announcement of any action taken would be limited to "a brief
general description." It is not clear whether the currently required
roll call vote identification would also become secret.
Trade secret information would be deleted from any released documents
-- possibly including final contracts -- approved in such closed sessions.
The current requirement that records distributed to a body in connection
with any matter required to be discussed in open session -- whether agenda
packet material or documents not immediately set for a particular meeting
-- would contain an exemption for such negotiation-related or trade secret
information.
"Trade secret" would be defined as currently in the Civil
Code, namely "information, including a formula, pattern, compilation,
program, device, method, technique or process that: (1) Derives independent
economic value, actual or potential, from not being generally known to
the public or other persons who can obtain economic value from its disclosure
or use; and (2) Is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy."
The Sacramento Bee reported that Terry Francke, general counsel of the
California First Amendment Coalition, reacted to a general description
of the proposal by remarking, "You have an entity that wants to have
it both ways, with governmental privileges on the one hand ... yet operating
in the rough-and-tumble of competition," adding that the burden should
be on SMUD to prove it was losing money by doing business in the public
eye, instead of just being "nervous" about it.
SMUD director Susan Patterson said she sponsored the amendment motion
because representatives of PG&E, SMUD's perceived principal competitor,
showed up in the meeting audience whenever competition was on the agenda.
The Bee reported that SMUD General Manager Jan Schori said she can't
document how much, if anything, public disclosure has cost SMUD since the
state's electric utility restructuring law passed in 1996. Moreover, according
to the Bee, "She declined to comment about whether current disclosure
requirements have caused the utility any problems in its business dealings."
COMMENT: Precedent for this kind of exemption from sunshine is already
present in the California Public Records Act, including a handful of provisions
addressing contracts and contract negotiations with health care providers,
a trade secrets exemption for public hospitals in the Brown Act, and a
recently enacted CPRA exemption due to sunset in 2001 unless reenacted
next year (Government Code Section 6253.7), which covers:
"any contracts negotiated by (a) local agency to provide gas transmission
or storage services, if the local agency finds that the exemption is in
the public interest. In determining whether to grant an exemption, the
local agency may consider factors including, but not limited to, customers'
interests in confidentiality and shall require a level of disclosure that
is comparable to that which is required by federal or state law for competitors."
Although SMUD could seek exemptions applying to it alone, the clear
legislative advantage would be to enlist all publicly owned utilities,
including the Los Angeles Department of Water and Power, the nation's largest,
with a service area accounting for the state's densest cluster of legislators.
The problem is that even if one accepts the need for some temporary
proprietary secrecy in the public interest, the foreseeableeffects of a
bill such as SMUD has committed to seek are:
1. Instead of a window, a three-year-plus delayed rearview mirror for
the public, in terms of document disclosure, on how well its "own"
power company performed in the marketplace.
2. An unknown scope of records secrecy: Precisely what information would
SMUD, given the license, assert to be a "trade secret," or deem
to "relate to the terms and conditions" of purchase or supply
contracts?
3. An unknown and uncontrollable scope of meetings secrecy: What would
be included and excluded from lawfully secret discussion, since it would
track the subject matter of exempt records, i.e. anything covered by 2
above? For example, as an artful city attorney not long ago enthusiastically
pointed out to a gathering of municipal leaders, "you'd be amazed"
at how much can be related to real property negotiations in closed session.
For an agency that does little else but buy and sell electrical energy,
what information could not be seen as somehow relevant to the bottom line
of such bargaining? Moreover, unlike the public records secrecy sunset
of three years, there is no point under the Brown Act at which any record
of closed session discussions becomes public. And according to a recent
decision from the California Court of Appeal, members of local bodies sued
for Brown Act violations cannot even be questioned as to what was said
behind closed doors, whether the discussion was lawful or not.
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COURT: STATE CAN BAR COMMERCIAL ACCESS TO ARRESTEE
ADDRESSES 12/10/99
A California statute directing law enforcement agencies to deny commercial
data gatherers access to the addresses of arrested persons is not on its
face in conflict with the First Amendment. If there is a second act to
this case, it may force a court to go where few have gone before: defining
just who legally qualifies for the rights of a "journalist."
The U.S. Supreme Court, in Los Angeles Police Department v. United Reporting
Publishing Corporation, case no. 98-678, decided December 6 that the constitutionality
of recent additions to Government Code Section 6254 (f) cannot be challenged
in a facial attack, and that any questions about its conformity with the
First Amendment will have to wait on an actual conflict shown in how it
is applied.
The statute in question allows access to the addresses of arrestees
and crime victims only where the requester declares under penalty of perjury
that the information is sought for "a scholarly, journalistic, political
or governmental purpose," or for investigative purposes by a licensed
private investigator. The declarants also must swear that the address information
will not be used "directly or indirectly" to sell a product or
service to individuals.
This provision, tacked onto the law enforcement information access provisions
of the California Public Records Act by 1995 legislation introduced by
Senator Steve Peace, has not been enforced because of an injunction obtained
by United Reporting Publishing Corporation and upheld by the U.S. Ninth
Circuit Court of Appeals, which was reversed by the supreme court's recent
decision.
United Reporting brought the challenge because the new rules directly
throttle much of its business in buying arrestee data from local law enforcement
agencies and selling derived address lists to attorneys, insurance companies,
drug and alcohol counselors and driving schools.
The approach taken was to argue that the discrimination against information
resellers or commercial use on its face violated the First Amendment, because
it conditioned access to otherwise public information made available by
the government on the kind of speech that the access would facilitate --
automatically classifying communications to arrestees by those with an
offer of assistance as somehow disfavored compared with academic, journalistic
or even investigative purposes.
By the time the case arrived at the Ninth Circuit, that court concluded
that at best United Reporting's case amounted to an attack of governmental
regulation of commercial (not Simon-pure) speech, but as commercial speech,
United Reporting's uses had been unjustifiably infringed. Commercial speech
regulation complies with the First Amendment only if several tests are
passed, and the key factor -- whether the regulation "directly advances"
its asserted governmental interest -- was one that the California law flunked,
the Ninth Circuit concluded.
Since the rationale for the new rules was asserted to be protection
of the arrestee's privacy, the means of doing so was not a direct advancement
of that interest, because it allowed the fact of one's arrest, in effect,
to be displayed in any newspaper, but focused only on one's receipt of
possibly unwanted mail. This effect, the court found, was not rationally
the kind of direct approach to privacy protection that the tests for commercial
speech regulation demanded.
But the supreme court, in a 7-2 decision with the majority opinion by
Chief Justice William Rehnquist, concluded that any consideration of commercial
speech infringements or other First Amendment issues was premature at best
because United Reporting had never tried to conform its information requests
to the procedure prescribed under the new rules. It had never sworn that
its purposes would fall under one of the permitted zones and that it would
not use the data to contact individuals.
Occasionally, a statute may be attacked on its face and disapproved
as overbroad under the First Amendment, even though the unconstitutional
effects are those that might conceivably be felt by others not before the
court, and even though the statute as applied to the challenging party
would be constitutional. While acknowledging this principle, the majority
refused to extend it to this situation because the worst that could happen
even to United Reporting's information customers, even if they asked for
the data directly, is that they would not get information from the government
-- not that their speech would be punished or enjoined.
Justice Stevens, joined by Justice Kennedy, dissented, noting that the
state could not constitutionally prevent the publication of arrestee information
if lawfully obtained, or the use of it for address lists to contact the
arrestees. Its only purpose for restricting access was to prevent the possibility
of such communications, and the dissenters would place a heavier burden
on the state to justify its conduct.
COMMENT: The majority, in dictum both casual and virtually unexplained,
assumes that the access discrimination in this case is constitutionally
innocuous because the government could simply keep arrest information off
limits to the public entirely. "California could decided not to give
out arrestee information at all without violating the First Amendment,"
says Chief Justice Rehnquist. Four other justices, concurring, endorse
the view that "California could ... constitutionally decide not to
give out arrestee address information at all."
While the court would never endorse the notion that the First Amendment
requires general release of all governmental information, the data involved
here -- who has been arrested (necessarily distinguishable in many communities,
given common names, only by address) on what criminal charges -- are at
the very intake portal of the criminal justice system, where a presumption
of observational and informational access under the First Amendment has
been soundly validated since the 1980s. If states or the federal government
decided to keep arrest information secret until the earliest judicial proceeding,
we would have a very different polity. "Secret arrests" is a
term universally associated with totalitarian regimes.
Equally intriguing, and more immediately consequential, is the prospect
that United Reporting will take up the approach left open by this decision
and attempt to qualify its request as being for "journalistic"
purposes. It already operates a web site, The United Reporter," purporting
to be a general news outlet, but one of whose pages reproduces data on
all drunk driving arrestees in a given county, on a monthly rotating basis
(see http://www.jailmail.com/URActive/arrests.htm). The name, sex, ethnicity,
address, arrest date and Penal Code reference are listed for each entry.
Access to this much information has been made possible by the injunction
which is now terminated.
If United Reporting now designates its purposes as "journalistic"
and its business practices continue, will any enforcement provision attempting
to crack down on this approach present a court with the task of determining
whether publication of selected information to the world on a Web site
qualifies the company's entire endeavors as "journalism?" Must
it publish without charge all the data it gets as a "journalist"
in order to qualify for access?
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BUTTE COUNTY ACTIVIST WINS ACCESS TO CITY'S ATTORNEY
BILLINGS 12/10/99
The city of Oroville has no right to keep secret the amounts it has
paid to outside counsel for litigation services, a superior court has ruled,
ordering the city to disclose fees paid in connection with two lawsuits
in particular, as well as "detailed billing records" concerning
one law firm's services to the city over a period of two years ending last
June.
Cameron E. Berry, a retired pathologist and vocal critic of the management
of city litigation, obtained a December 2 order from Butte County Superior
Court Judge Roger Gilbert directing the city and its insurance carrier,
the Northern California Cities Self Insurance Fund (NCCSIF) to provide
him with access to records showing fees paid to attorney Dennis Halsey
and Bragg & Associates, a law firm, concerning their representation
of the city in two lawsuits, including one brought by Berry himself.
The latter, currently before the U.S. Ninth Circuit Court of Appeals,
challenges his arrest for having tape recorded a phone call to the secretary
of the Oroville chief of police. Berry contends that he used a beep tone
to alert the called party that it was being recorded, and that the real
reason for the arrest is retaliation for comments he made to the city council
complaining about the lack of police follow-up on his complaints of malicious
mischief.
In general, Berry is convinced that the city's practice of avoiding
settlements and keeping litigation alive is an irresponsible use of municipal
funds, benefiting attorneys and the insurance adjuster out of all proportion
to the public interest, and that the city's lack of oversight of its litigation
is to blame. His recent case under the California Public Records Act was
intended to document that contention.
The December 2 order exempted from disclosure of the billings "references
in said documents to specific actions relating to trial preparation or
conduct of pending litigation." Sacramento attorney Stephen H. Johanson,
who represented Berry in the records case, says documents produced in compliance
with the order show dollar amounts but no information explaining how the
billings were earned.
COMMENT: This is the first case reported to CFAC in which a court has
effectively rejected the position commonly taken by public agencies that
so long as litigation is still pending, the public is not entitled to discover
how much it is costing.
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CITY CITED BY CFAC AS 'BLACK HOLE' ADOPTS SUNSHINE
ORDINANCE 12/10/99
A little over two months after receiving the dubious distinction of
the California First Amendment Coalition's Black Hole award -- for flagrant
disregard of open government law -- the city of Vallejo has subjected itself
to a slim but tough new standard for public access to meetings and information.
Defiance of the new rules could cost officials their jobs.
At CFAC's annual Assembly in September, Vallejo was among several organizations
and individuals cited for the Black Hole Award, created to recognize conspicuous
failures to comply with open government or public information policy. The
award want to Vallejo to mark disapproval of the difficulty its own mayor,
Gloria Exline, had encountered in attempting to get records from staff
showing travel expenses of other council members and city employees.
Vallejo was the only Black Hole recipient to have a representative present
to accept the citation -- Exline herself. She gleefully promised the Assembly
audience that she would soon attempt to get the city on the good side of
the ledger by means of a sunshine ordinance. That task would not be easy,
since her term was to expire in November and she had already decided not
to seek reelection.
But despite the fact that development of a sunshine ordinance has typically
taken six months or more of negotiation and staff review, Vallejo cut the
process to two. The result does not address all the issues covered by other
ordinances (all, so far, in the San Francisco Bay area), but does have
several remarkable characteristics, especially in view of the degree to
which the council majority appeared to smart at receiving the Black Hole.
Samples:
*Meeting agendas "shall avoid the use of undefined abbreviations
or acronyms not in common usage and terms whose meaning is not known to
the general public... The (agenda) description is adequate if it is sufficiently
clear and specific to alert a person of average intelligence and education
whose interests are affected by the item that he or she may have reason
to attend the meeting or seek more information about the item." Agendas
must be posted at the city clerk's office, a named public library, an outside
bulletin board at city hall, and online.
* A list of future agenda items (beyond the next meeting) for all city
bodies subject to the Brown Act must be posted in the same locations, marked
as "tentative" and changeable until the posting deadline for
the meeting they pertain to.
*The Brown Act prescriptions for "safe harbor" language adequate
to describe closed session topics are made mandatory, and actions taken
without conforming agenda notices are made subject to invalidation.
*As in the recent initiative amendments to the San Francisco ordinance,
documents creating or attached to both litigation settlements and collective
bargaining pacts with employees must be accessible to the public before
the settlements or agreements are approved -- in Vallejo's case at least
72 hours in advance.
*Also mirroring the recent San Francisco amendments, city attorney opinions
concerning the Brown Act, the California Public Records Act, or the Political
Reform Act (conflict of interest issues) are accessible to the public and
not privileged.
*Lawyers representing the city may not solicit a clause making settlement
agreements secret, and after settlement not only the agreement itself but
all prior communications between the parties become public.
*If an identifiable, nonexempt record is requested before noon, it must
be provided by close of business on the same day; if after noon, on the
next business day. If that limit must be extended because of a voluminous
demand, remote storage, the need to consult with other agencies or the
need to involve legal counsel for analysis or redaction, the requestee
must be so notified within three business days of the request.
*Approximating the "Vaughn Index" approach taken under the
federal Freedom of Information Act, information redacted from a document
because it is exempt from disclosure must be "keyed by footnote or
other reference to the appropriate justification for withholding"
under the law.
*Justifications for withholding records must, if withholding is discretionary
rather than mandated by law, "explain in practical terms how the public
interest would be harmed by disclosure." If the argument is that disclosure
would expose the city to civil or criminal liability, the cases or statutes
creating the liability must be cited.
*The city attorney is authorized to publish legal opinions based on
requests from citizens as to whether a record is public, and all such requests
and opinions are public records.
*The ordinance is enforceable by a civil action the same as state sunshine
laws, and prevailing plaintiffs will obtain court costs and attorney's
fees.
*"The knowing, willful and deliberate failure of any elected official,
departmental director, or other managerial city employee to discharge any
duties imposed by the Ralph M. Brown Act, the California Public Records
Act or this ordinance shall be deemed official misconduct. An elected official
found guilty of such misconduct shall be removed from office in the manner
prescribed by law. Any departmental director or other managerial city employee
found guilty of such misconduct shall be subject to disciplinary action,
up to and including termination of employment, in the manner prescribed
by law."
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FACED WITH LAWSUIT, CITY OFFERS CAUTION ABOUT
DELETING E-MAIL 12/3/99
In responding to litigation challenging its admitted practice of routinely
deleting e-mail messages, the City of Corona says it will adopt a more
conservative approach. Employees will be cautioned to assume that all such
messages are disclosable, and instructed to print out anything likely to
be deemed a public record -- for preservation in paper files.
Attorney Richard D. Ackerman, who practices law in Fullerton, filed
suit in Riverside Superior Court November 15, seeking a preliminary injunction
against destruction of electronic mail until the court can definitively
rule on whether such documents must be retained under the same state law
requirements as paper records -- for cities, under Government Code Section
39040, for at least two years.
Ackerman's concern is twofold: the integrity of the First Amendment
right to petition for the redress of grievances and the avoidance of destruction
or, as lawyers say, "spoliation" of evidence, a subject on which
Ackerman is something of a maven.
As for the first issue, Ackerman's court papers allege that city manager
Bill Workman recently "admitted to deleting/destroying e-mail communications
relating to traffic snarls and urban development issues," forwarding
angry citizens' complaints to the city council and the public works department,
then erasing them from his computer -- leaving them only in a temporary
backup system maintained by the city and automatically purged after 90
days.
Furthermore, the procedure means that e-mail communications of all kinds
-- internal as well as external -- that may contain information relevant
to or at least discoverable in litigation by or against the city has a
very short shelf life, and can frustrate the fact-seeking process in lawsuits
or other disputes.
"A governmental agency cannot merely hit the delete button on First
Amendment petitions or grievances nor on what may constitute evidence in
a pending civil action or pending civil administrative review processes
regarding development plans and the like," Ackerman says.
The controversy began when it became known in October that a number
of irate drivers had sent e-mail to the city complaining of severe traffic
congestion -- an issue material to an already pending class action filed
by Ackerman alleging the city's failure to control growth.
The city is now attempting to settle the e-mail suit by offering to
update its records retention policies, but Ackerman says several aspects
of the proposed new guidelines are less than satisfactory. For example,
the city has drafted a quick-reference guide to staff helping to clarify
which records should be presumed subject to retention as official records
and which should not. The guide indicates a category which "may"
constitute official records, including:
-- "E-mail providing key substantive comments on a draft action
memorandum, if the e-mail message adds to a proper understanding of the
formulation or execution of official action.
-- "E-mail providing documentation of significant official decisions
and commitments reached orally (person-to-person, by telecommunications,
or in conference) and not otherwise documented in official files."
Ackerman believes such documents not only "may" but do constitute
retainable official records. In addition, Ackerman questions the reference
guide's inclusion, in the category of e-mail messages that "do not"
constitute official records, "Documents created by employees on work-related
topics, such as cover notes and routing slips that merely facilitate the
flow of a document from one party to another." He contends that for
purposes of documenting chain of custody and other concerns, a record of
who sent what to whom, when and with what comments, can be vital.
Finally, Ackerman questions the proposed retention procedures themselves,
under which individual employees would be responsible for judging whether
an e-mail constituted an "Official City Record, as defined by the
City clerk," and if the definition applied, would be responsible for
printing a paper record for storage. Otherwise, employees could continue
to delete the messages from their files, to be purged from the central
system after 90 days.
The problem with this approach, he notes, is that too many e-mails are
likely to be dismissed by individual employees as not worth keeping, and
even those permanently kept would be on paper, thus losing the electronic
searchability of the original.
Ackerman says that on such terms he will not accept the proffered settlement.
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FIRED REPORTER APPEALS PUBLIC RECORDS CASE AGAINST
COLLEGE 11/26/99
A former newspaper reporter who lost his job while trying to obtain
information about the settlement of a multi-million dollar lawsuit against
a college district and its president has taken his case to California's
Third District Court of Appeal -- still seeking the information, but also
attorney's fees he argues are due from a limited victory in the trial court.
Former Auburn Journal reporter John H. Trumbo originally sued the Sierra
Joint Community College District, its board of trustees and President-Superintendent
Kevin Ramirez in May 1999. The writ of mandate, filed in the Placer County
Superior Court, sought to know how much money the district and its insurance
carriers agreed to pay to settle a $12 million wrongful termination lawsuit
filed by a college librarian.
In addition, Trumbo asked for amounts paid by the district or its agents
for legal costs in defense of the litigation brought by the librarian,
who was demoted from assistant dean to nontenured faculty before being
let go in 1996.
The suit also requested telephone records from the office of Ramirez
for the days immediately following Trumbo's being fired from the Auburn
Journal in February 1999. The editor informed Trumbo that use of newspaper
letterhead without express permission was cause for termination. Trumbo
had written two hand-delivered letters to Ramirez earlier that same day,
asking for settlement amounts and cost of legal defense in the librarian's
lawsuit. He did not ask his superiors for permission to do so.
The letters contained requests under the California Public Records Act,
and were "legitimate, official newspaper business," Trumbo said.
The fact that he was fired a few hours after delivering the letters to
the college suggests a conspiracy on the part of the college president
to interfere with a reporter doing his job, he added.
Judge Frances Kearney granted Trumbo's request for the settlement document,
but ruled against him on seeking the district's legal costs and expenditures
in the Furtado case. Kearney also denied his request for phone records,
noting that Ramirez said no phone calls were made by him to the Auburn
Journal on the day Trumbo was fired, or on the next.
Kearney allowed $7,500 in legal costs for Trumbo, whose attorney submitted
invoices totaling $28,450, not including the costs for appeal.
Trumbo's arguments to the court of appeal are:
Settlements of lawsuits as well as legal fees paid by public agencies
and their insurance companies are public records. Judge Kearney should
have directed the college district to provide the records of legal costs
in the librarian's case to Trumbo rather than simply write a letter stating
what the costs were. In fact, that letter did not include any costs that
were paid by the district's insurance companies.
Judge Kearney was wrong in denying the request for telephone records
by simply accepting a statement from the college president that he made
no phone calls to the Auburn Journal the day Trumbo submitted his requests
for public documents. A citizen's ability to articulate a "good"
reason or "need" to see a public record is not a criterion under
the Public Records Act. The judge, according to the appeal, seemed to say
that Trumbo would have to demonstrate foundational evidence of the occurrence
of the mystery phone call before being able to view the records to confirm
that such a call occurred.
Legal fees incurred in Trumbo's lawsuit should have been granted in
the full amount of $28,450 because he not only prevailed on the issue of
obtaining the settlement information (albeit the agreement was constructed
to conceal the true amount) but persuaded the college president to respond
to the request for telephone records by saying no phone call was ever made
in the time period described. Citing a prior case (Belth v. Garamendi),
the appeal notes that a plaintiff is considered a prevailing party "if
his lawsuit was demonstrably influential in setting in motion the process
which eventually achieved the desired result."
"This case is just what the state legislature had in mind by instituting
its requirement for the public entity to pay a petitioner's attorney fees
and costs -- where the district uses public funds to fight a lone citizen's
legitimate request for public records," said Larry Schapiro, Trumbo's
attorney.
Although Trumbo prevailed in obtaining the settlement agreement, the
district declined to disclose the full amount it had to pay the librarian.
Instead, the district released a document that described a settlement consisting
of $1 plus an undisclosed, confidential sum.
Trumbo is continuing efforts to obtain the full and correct settlement
amount.
"Even though I am no longer employed fulltime as a reporter in
Placer County, I believe someone must continue to press for the public's
right to know how much this case has cost the taxpayers of the Sierra Joint
Community College District over the past five years," he said.
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FEDERAL REGS MAY SPELL TROUBLE FOR HOSPITAL ADMISSIONS
CHECKS 11/19/99
Reporters covering accidents, disasters or the health crises of newsworthy
persons could find it impossible to confirm hospital admission and status
information under a new set of rules being proposed by the federal Department
of Health and Human Services. Essentially, information committed to computer
would need the patient's nod for release.
The proposed rules are intended to effectuate certain provisions of
the Health Insurance and Portability Act of 1996, and in particular address
concerns for the privacy of medical information that is electronically
transmitted or even "maintained."
Thus, while they make no distinction allowing disclosure of facts in
the public interest or for newsworthy reports, they apply only to medical
information which has already been communicated by or to a computer. But
once that transmission occurs -- once the information is digitally stored
-- even the source data initially recorded on paper would become subject
to the restrictions, and even public hospitals apparently could thwart
access by simply entering the paper data into their computer networks.
For any such electronically captured data, journalists or others would
need the affirmative consent of the patient in order to obtain release
of the patient's name as being admitted to a medical facility, his or her
basic condition, the types of wounds or injuries, and the treatment being
given.
Such information may be released under California law unless the patient
vetoes disclosure in writing, but that access would end under the new rules.
Absent express patient approval, disclosure of such "directory"
information would be permitted only if the patient were incapable of giving
consent and if disclosure would, in the view of the facility, be "consistent
with good medical practice."
Comments on the proposed regulations, published in the Nov. 3, Federal
Register, must be submitted to Health and Human Services by January 3,
2000.
The proposed regulations, their rationale in instructions on how to
comment are found at http://fr.cos.com/cgi-bin/retrieve?db=fr_1999&ac2=19991103a140.
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GOT MILK PRICE DATA? CONSUMER GROUP SUES FOOD
& AG DEPARTMENT 11/19/99
Stressing the public's right to know the true cost of California's protectionist
milk policies, the San Francisco-based consumer coalition Mad About Milk
is suing to force California milk regulators to disclose the monthly milk
price reports the state purchases from A.C. Nielsen, and the contract under
which the state obtains those reports.
"State officials routinely publish only part of this data - the
part they believe supports California's milk marketing policies,"
said Audrie Krause, executive director of Mad About Milk. The Oakland-based
First Amendment Project is representing Mad About Milk in a petition, filed
November 9, asking the court to force the California Department of Food
and Agriculture (CDFA) to comply with the California Public Records Act
by making the records, and the contract, available for public inspection.
CDFA contracts with A.C. Nielsen for its monthly Scantrack Report on
Refrigerated Milk, and publishes Nielsen's data on average retail prices
for whole milk in its Dairy Information Bulletin. But the agency does not
publish average retail price data for other varieties of milk, and state
officials have refused to make the data available for inspection.
Mad About Milk's argument is that milk prices in California are among
the highest in the nation as a result of economic barriers that protect
the state's $3.7 billion dairy industry from competition. California bans
the sale of federally-approved milk and prohibits retail grocers from selling
milk at a discount.
A CDFA attorney originally agreed to make the records available for
Mad About Milk to review, but reversed its decision after A.C. Nielsen
said the records were trade secrets.
"Not only did CDFA claim that the terms of its contract prevent
the data from being disclosed, they claimed the contract itself was a 'trade
secret' and refused to disclose that. They even refused to provide Mad
About Milk with a blank 'boiler plate' contract," said David Greene,
an attorney with the First Amendment Project.
"Worst of all, both CDFA and A.C. Nielsen have threatened to sue
Mad About Milk if it continues to ask for the data or exercises its constitutional
and statutory right to ask the Court to review CDFA's decision," he
added.
"The Public Records Act requires that CDFA determine what documents
must be disclosed. This is not something they can delegate to a private
party such as A.C. Nielsen," said Krause. "Moreover, CDFA's refusal
to produce even a blank contract, on the warped justification that we already
know what the contract contains, is plainly contrary to the principles
of open government."
Mad About Milk's analysis of last year's Nielsen data, obtained from
another agency, revealed that the gap between California and out-of-state
milk prices was significantly greater for low-fat milk.
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HIGH COURT ATTENTION SOUGHT: WIPING FEDERAL E-DOCUMENTS
11/19/99
Federal agencies should not be routinely permitted to destroy electronic
documents such as word processing and e-mail records, the consumer group
Public Citizen is arguing in a petition filed November 4 with the U.S.
Supreme Court. The group challenges a policy which assumes any medium kept
on file is as useful as any other.
The group is asking the court to reverse a recent circuit court of appeals
ruling upholding a determination by the Archivist of the United States.
That official decided to allow federal agencies to routinely destroy word
processing and electronic mail records.
The petition does not seek to force preservation of or protect public
access to all electronic paperwork, but rather those records now written
on government computers which the Archivist deems to have historical importance.
Co-petitioners are the American Historical Association, the Organization
of American Historians, the National Security Archive, the American Libraries
Association, the Center for National Security Studies, journalist Scott
Armstrong and researcher Eddie Becker.
The petition charges that the Archivist's decision ignores the unique
properties of electronic records by treating their format as irrelevant.
Federal records laws make the Archivist responsible for determining whether
government records have sufficient value to warrant their preservation
and directing agencies to destroy records that do not.
But in 1995 the Archivist issued a rule, "General Records Schedule
20," which instructs federal agencies to destroy all records created
with electronic mail or word processing applications after they have created
an electronic, paper or microform copy for recordkeeping purposes. Even
if their records contain historically valuable information, GRS 20 directs
agencies to destroy the electronic originals after creating a paper ormicroform
copy.
Judge Paul Friedman of the U.S. District Court for the District of Columbia
concluded in October 1997 that GRS 20 was irrational because electronic
records often have "unique and valuable features not found in paper
printouts of the records." By ignoring the value of electronic formats
for research and disseminating information, Judge Friedman ruled, the Archivist
had abdicated his statutory responsibility "to insure the protection
and preservation of valuable government records."
But this past August, however, the Court of Appeals for the District
of Columbia Circuit reversed Friedman's ruling after accepting the Archivist's
argument that the special value of the electronic format can be ignored
under the federal records laws if a paper or microform (i.e., microfilm
or microfiche) copy has been created. This ruling cleared the way for the
wholesale destruction of government records under GRS 20.
Public Citizen's petition argues that GRS 20 is inconsistent with the
public's experience with electronic records, which have revolutionized
the way information is stored and communicated, precisely because the electronic
format can be transmitted, indexed and accessed in ways that paper and
microform copies of records cannot.
The petition states that GRS 20 warrants Supreme Court attention because
of its sweeping impact. The rule directly affects the preservation of documents
created by all federal agencies using word processing and electronic mail,
and the Archivist's decision to disregard the value of electronic records
when deciding whether records should be destroyed potentially affects all
records in digital formats, including formats routinely used to make information
available on the Internet.
The petitioners do not advocate the preservation of all electronic records;
however, they do argue that the law requires the Archivist to distinguish
between electronic records that contain important policy decisions or other
crucial information that make them worthy of preservation in their electronic
format, and those records that lack such value.
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JUDGE ORDERS RELEASE OF "UN-AMERICAN ACTIVITIES"
COMMITTEE TRANSCRIPTS 11/5/99
Responding to a petition by the California First Amendment Coalition
(CFAC), a judge has ordered the California Senate's Rules Committee to
release to the public transcripts of a series of legislative "Un-American
Activities" committee hearings from the 1940s through the 1970s. The
open hearing transcripts were sealed in 1971 when the last of the investigative
committees was shut down.
Sacramento Superior Court Judge Ronald Robie signed an order Wednesday,
November 3 directing Senate President pro Tempore John Burton (D-San Francisco),
chair of the Senate Rules Committee, to provide "an immediate right
of public access to the transcripts of all public hearings held by the
California Assembly Relief Investigation Committee, the California Joint
Fact-Finding Committee on Un-American Activities, and the Senate Fact-Finding
Subcommittee on Un-American Activities."
These committees operated in sequence for approximately three decades
until the final panel was discontinued in 1971 by order of then Senate
President pro Tempore James Mills of San Diego. Their investigative focus
was a series of concerns, including alleged improper practices in the state's
social welfare or "relief" program in the latter part of the
Depression, subversive activities by Axis agents during World War II and
by Communist agents thereafter, anti-social activities by right wing groups
including the Ku Klux Klan as well as by left wing students at the University
of California in the Free Speech and Vietnam war eras, plus suspect activities
in local politics, the labor movement and Hollywood.
Judge Robie's order means that thousands of pages of open hearing transcripts
from these decades of legislative probing will be transferred to the State
Archives for perusal by scholars, journalists and whoever else may take
an interest in the period.
The transcripts have been kept under seal in senate custody since the
1971 windup of the final committee, when Senator Mills ordered that public
access be curtailed. Their existence came to the forefront again only in
early 1998, when then Senate President pro Tempore Bill Lockyer announced
his intention to have the entire work product of the committees screened
for privacy protection in anticipation of general release to the public.
At that time Lockyer explained, "There is no reason to hide these
matters. I just think it is better that our records be open to expose whatever
good -- and whatever bad -- was collected."
But with Lockyer's departure to campaign for the office of attorney
general, his successor, Senator Burton, decided to drop plans for providing
access to the files. The materials -- some 80 boxfuls -- consist of both
open and closed committee hearing transcripts as well as thousands of surveillance
dossiers tracking the movements and affiliations of individuals who attracted
the attention of committee investigators.
CFAC's involvement came at the request of a Los Angeles researcher whose
interest in the period led him to request the committee to provide access
to at least the open hearings transcripts, but to no avail. Attorneys for
CFAC spent months this year attempting to persuade the committee that these
files at least, once accessible to the public, could not be withdrawn after
the fact. But some on the Rules Committee were apparently swayed by a Legislative
Counsel's opinion that the committee -- perhaps even individual members
-- might be sued for damages by those mentioned in the hearings who had
come to expect their connection with the investigations to be kept confidential.
In a letter to Burton late in April , however, CFAC's Legal Review Committee
Chair Barbara Blinderman, a Los Angeles public interest attorney, and General
Counsel Terry Francke argued that legislative committee records, once public,
could not be sealed and that the Legislative Counsel's opinion was irrelevant
because it was directed to the question of releasing the entire committee
work product, including material created to be kept confidential.
Finally the CFAC board of directors, meeting late in September, decided
to give Burton an October deadline for signing a stipulated order for release,
amounting in effect to a commitment to abide by a court's directive to
make the once public transcripts public again.
The Los Angeles researcher who sought CFAC's assistance is David Wiener,
a senior editor with the Producers Guild Journal and Industry Magazine,
who said his interest in the issue "was sparked by my research for
a new book, 'Hollywood Spooks,' a history of espionage, underground, and
clandestine activity in the film industry.
"In going through the old federal (House Un-American Activities
Committee) hearing transcripts, I first became aware of the California
Fact-Finding Committee and tried to locate copies of perhaps 15 or 20 sworn
testimonies I wanted (and still want) to quote from in my book. It was
then that I discovered that every single one of the California Fact-Finding
Committee's transcripts were sealed back in the 1970s.
"I'm no lawyer, but it sounded odd that duly sworn, public testimony
in open session could be declared secret and kept from the public for almost
30 years - especially since portions of the same had been widely published
in the famous 'Redbooks.'"
The "Red Books" referred to are bound volumes summarizing
the investigations conducted by the final "Senate" committee
from 1958 through its termination in 1971 -- a period in which the committee
held no hearings but simply supervised the work of its investigative staff.
For a faxed topic list of hearings included in the released materials,
reply to wzlotlow@cfac.org. For information on reviewing the transcripts
at the State Archives, call Laren Metzger at (916) 653-7715.
COMMENT: According to a contemporary newspaper account, Senator Mills
was provoked to terminate the committee and seal its files when he learned
that his own name had turned up on a list of individuals in which the committee
showed some interest -- because he was on the mailing list of a socialist
newspaper.
Since the order obtained by CFAC's mandate petition reaches only open
hearing transcripts, probably much of the more fascinating material remains
undisclosed unless and until someone shows an interest in having it unsealed
as well. That interest could be prompted by what the now public transcripts
reveal or refer to.
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IN SAN FRANCISCO, "SUNSHINE" REFORMS
PUSH BACK THE SHADOWS 11/5/99
San Franciscans have had a Sunshine Ordinance for six years, but passage
of Measure G on the citywide ballot on Tuesday, November 2 means a remarkable
extension of that law to open up more meetings and records than ever --
certainly more so than in any other community in California, and probably
more so than in any other community in the nation. If you doubt these superlatives,
consider the changes made.
Passed on a 58-42 percent vote margin, Measure G extends the current
access and citizen participation law by:
Records and Meetings
-- requiring posting of agendas on the Internet 72 hours in advance
and, to the extent possible, agenda packet materials as well;
-- making records of the mayor's office, other elected officials and
department heads the property of the city, to be retained by the city after
the officials leave office;
-- preventing city funds from being spent to support lobbying efforts
in Sacramento aimed at restricting public access to records, information
or meetings other than citizens' identity or privacy rights;
-- requiring more comprehensive meeting minutes (including incorporation
of citizens's comments and documents submitted for the record) and long-term
retention of audio recordings of meetings.
-- requiring audio or video recordings of all closed sessions, to be
preserved for 10 years and made public "whenever all rationales for
closing the session are no longer applicable;"
City Attorney
-- requiring the city attorney to "act to protect and secure the
rights of the people ... to access public information and public meetings,"
and forbidding the city attorney from acting as counsel for any city employee
for purposes of denying such access;
-- requiring all city attorney opinions, analyses or other communications
regarding the Sunshine Ordinance, the California Public Records Act, the
Ralph M. Brown Act, the Political Reform Act or any city ethics codes be
accessible as public records;
-- requiring that the deputy city attorney assigned to staff the Sunshine
Ordinance Task Force have public access law experience and "serve
solely as a legal advisor and advocate to the Task Force" and not
for a person or office which that body deems to have a conflict with its
access interests.
Enforcement of the Ordinance
-- creating a tiered administrative process involving the city attorney,
the Sunshine Ordinance Task Force and the district attorney, allowing records
requesters to appeal denials of access;
-- requiring department heads and managers to sign an affidavit that
they have read the Sunshine Ordinance and have attended a training session
on it, or will;
-- making willful violation of public meetings and records laws official
misconduct, with complaints to be handled by the Ethics Commission;
-- providing that in cases of conflict between the Sunshine Ordinance
and other access laws, the rule providing greater public access shall apply;
-- providing that "(i)n any court proceeding (to enforce the ordinance)
there shall be a presumption that the record sought is public, and the
burden shall be on the custodian to prove with specificity the exemption
which applies."
City Partnerships
-- making it city policy to "continually, consistently and assertively
work to seek commitments to enact open meetings, public information and
citizen comment policies" from federal, state, regional and local
agencies with which the city creates partnerships, including but not limited
to the Treasure Island Development Authority, the San Francisco Redevelopment
Agency and the Presidio Trust;
-- prohibiting the city from granting any subsidy in funds, tax abatements,
land or services to a private entity which does not agree in writing to
provide the city with financial projections and other records.
On-line Records
-- requiring creation of an index of city records, available on the
municipal Web site and at public libraries, informing the public of where
various types of city documents can be found;
-- improving availability on-line of meeting notices, minutes and agendas.
Litigation
-- requiring disclosure of proposed settlement agreements 10 days before
presentation for approval by the relevant policy body, unless doing so
would harm the city's interest in pending litigation arising from the same
facts but involving a party not bound by the settlement;
-- requires identification of cases discussed in closed session by party
names, case number and court.
CPRA "Catchall" Exemption
-- prohibiting the city's assertion of the California Public Records
Act's "catchall" balancing test (applied to records not expressly
exempt from disclosure), including but not limited to an assertion of the
deliberative process privilege.
Law Enforcement
-- encouraging law enforcement agencies to cooperate with the press
and public in making crime- or prosecution-related information available;
-- making investigative information available after expiration of the
statute of limitations, the decision of the district attorney not to prosecute,
or a case dismissal.
Labor Relations
-- makes a proposed collective bargaining agreement public 15 days before
presentation for approval by the relevant policy body.
Contracts
-- requiring that draft contracts be made public 10 days before approval
by a "policy body" (the board of supervisors and other boards
and commissions), unless the body demonstrates that the public interest
would be "unavoidably and substantially" harmed;
-- requiring that all future contracts between the city and advertising
space providers protect the free speech rights of advertisers, and that
the latter be notified when their advertisements are vandalized;
-- making the following documents in the bidding and contracting process
public records: 1) request for proposal score sheets and evaluation forms,
and information about the evaluators; 2) negotiation documents or summaries
involving sole-source contracts, franchise agreements, and leases or permits
of more than $500,000 in value or 10 years in duration.
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STATE AUDITOR: HEALTH AGENCY RESEARCH FINDINGS
SECRET DE FACTO 10/29/99
The State Department of Health Services, California's principal public
health agency, didn't act improperly in sitting on its study showing bar
owners' and workers' lack of support for the 1998 smoking ban. And its
release of another study showing patrons' support wasn't politically calculated.
But DHS needs to publicize its findings consistently.
So concludes State Auditor Kurt R. Sjoberg in an audit report released
Thursday, October 28, entitled "Department of Health Services: Although
It Has Not Withheld Information Inappropriately, the Department Should
Make Research Findings More Widely Available" (obtain Adobe Acrobat
copy at http://www.bsa.ca.gov/bsa/pdfs/99106.pdf).
The report, requested by the Joint Legislative Audit Committee, was
prompted by complaints from smokers' rights groups that DHS had attempted
to influence legislation on the issue. DHS commissioned two studies to
evaluate support or opposition by key groups to the 1998 extension of the
ban to bars and taverns, which were exempt from the 1995 retail establishment
smoking ban.
Conducted in the first half of 1998, one poll showed widespread support
for the ban on bar smoking among patrons and the general public. That survey
was publicized. But a second survey of bar owners and workers, which showed
opposition to the ban, was not. The first survey was released five days
before a legislative hearing on a bill (SB 1513) which would have repealed
the ban's application to bars.
Sjoberg's audit report finds nothing improper in the DHS decision to
treat the surveys differently. Its mission is to promote public health
and advocate for smoke-free environments, the report notes, and the bar
owners' and workers' results had been intended specifically to help the
agency develop training programs targeted on those groups -- and also law
enforcement agencies -- to help increase compliance with the law.
But while the audit report finds nothing sinister in the differential
handling of the surveys, it concludes that DHS is open to criticism generally
because its research findings are too many times not publicized for substantial
periods after completion -- or sometimes not at all.
Of 10 studies sampled to illustrate this phenomenon, only two were heralded
by a general press release: the March 1998 poll of bar patrons' support
for the smoking ban and a November 1998 survey "assessing issues related
to women's health."
Two more, considered public, were not announced to the press but placed
on the DHS web site: a May 1998 survey of indoor radon concentration in
California elementary schools, and a February 1999 report on the number
of induced abortions funded by Medi-Cal in 1997.
Four others, considered public, were neither announced to the media
nor posted on the DHS web site, but given only "limited distribution":
-- a July 1997 study of which advertisements would stimulate interest
in long-term care insurance;
-- a January 1998 study listing 260 Asian patent medicines that could
be dangerous to the public;
-- an April 1998 survey assessing the effectiveness of a campaign to
reduce teen and unwed pregnancy; and
-- a March 1999 report on the prevalence of HIV among injection drug
users.
The final two, never released but instead reserved for "internal
use":
-- a February 1998 survey of doctors' awareness of the benefits of folic
acid before and during pregnancy; and
-- a January 1999 evaluation of the Medi-Cal case management program.
There were other anomalies detected. In the report's words: "(W)hen
(the Joint Legislative Audit Committee) approved this audit, a concern
arose related to the department's handling of a cancer incidence study
conducted for areas surrounding the Simi Valley Rocketdyne facility in
Southern California. A local regional cancer registry completed this study
at the request of a county health officer in Southern California, and the
department received a copy of the findings. Because the department did
not complete the study or ask another organization to conduct the study
on the department's behalf, we did not include it in our review. However,
the governor did direct the secretary of the California Environmental Protection
Agency to investigate, among other things, the department's handling of
the study.
"The results of this investigation, released in October 1999, concluded
that there appears to have been no intent by the department to 'suppress
or withhold' the report. However, the investigation also concluded that
an apparent 'organizational failure' occurred within the department when
it did not share the report with other potentially interested parties.
Furthermore, the investigation found that the department inappropriately
shared with Rocketdyne management drafts of other cancer studies prepared
by the University of California, Los Angeles, and that the department delayed
unreasonably the planning and funding of Rocketdyne community health studies."
Also, one of the reviewed studies took a remarkably long time to be
released -- including a hold of half a year out of deference to the judgment
of a new administration:
"One study did not become public for almost a year after its completion.
This study, a reanalysis of data collected in fiscal year 1991-92, estimated
indoor radon concentrations in California elementary schools and specified
certain regions within the State in which radon may pose a danger to the
public. A radioactive, colorless, and odorless gas, radon contaminates
indoor air by diffusing from soils and rocks and by infiltrating housing
foundations. The 21 schools with high concentrations of radon had received
notifications in 1992; however, the department did not distribute the new
information promptly even though epidemiological studies around the world
have demonstrated a causal association between exposure to radon and lung
cancer.
"Although the department completed the radon reanalysis in May
1998, the results did not become public until April 1999, almost a year
later. According to the department, the study was delayed for four months
while it awaited approval by the department, and it waited another seven
months to be approved by the Health and Welfare Agency, now called the
California Health and Human Services Agency (agency). The department stated
that the delays occurred because the department was processing a separate
air quality report for release with the radon report, which was awaiting
revision to address management concerns.
"Further, when the department submitted both studies to the agency
in September 1998, the agency elected to delay their release until the
State's newly elected administration began its term in January 1999. In
March 1999, the department again submitted the radon report to the agency,
which approved it that same month. On April 6, 1999, the Governor's Office
approved the study for public release.
"Ultimately, according to the department, it distributed the report
to the federal Environmental Protection Agency, the California Department
of Education, a legislator, as well as others. In addition, the report
is available on the Internet."
Sjoberg's report concludes: "Even though the Public Records Act
ensures that most public agency documents are available to everyone for
inspection, the public cannot request information that it does not know
exists. Of the 10 studies we reviewed at the department, 6 were not disclosed
publicly, or they were released to limited groups only. Thus, even though
the information is accessible to the general public, the public is probably
unaware that these studies areavailable. Additionally, because the department
does not issue all its studies, it may receive criticism that it is withholding
information intentionally.
"To ensure that the public knows about all its studies, the department
should make easily accessible a list of its completed projects. For example,
the department could use its Web site to post a list of its reports and
provide information from some of its more popular projects in a format
that computer users can copy and read. Because most of its information
is already available to the public upon request, we do not anticipate thatthe
department would have to expend significant additional resources to compile
such a list."
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THOSE CONCEALED WEAPONS PERMITS: ONE NEWSPAPER'S
TALE
When the Redding Record Searchlight decided to look into who had been
issued permits to carry concealed weapons by the Shasta County sheriff,
probably no one anticipated the exact kind of bureaucratic -- and political
-- responses the sheriff would make, or what an uproar the sheriff's tactics
would ignite in the community. Is this experience atypical?
That's what Managing Editor Greg Clark is asking CFAC to ask his colleagues,
and he'd appreciate any responses at gclark@redding .com. Here's his message:
"I know our reporter Maline Hazle consulted with (CFAC) a while
back regarding the public record status of concealed weapon permits. Thought
you might be interested in what has happened in our quest to get those
records.
"I've attached two front page stories that we wrote in the midst
of the firestorm of protests that arose when we finally asked for them.
(Note: Stories appear below)
"After our CPRA request to the county counsel, we were offered
essentially two choices: We could get a list of the names and hometowns
of the permit holders with little trouble and for little cost. Or we could
hold out for the entire application form (almost 4,000 in all) with 'private
information' redacted on the 9-page form. That, the county said, would
involve considerable staff time and would cost us for the copying of the
36,000 pages for redaction. My argument was that if we simply wanted to
examine the applications, we would not be required to pay for copying charges,
but the county disputed that.
"So, we opted for now to get just the list of names and hometowns.
Before we could get that, however, the county had to follow its policy
of sending out letters to every permit holder notifying them of a request
to view the information. The letter was written in a way that we felt was
inflammatory, referring to our 'demand,' and urging people to seektheir
own attorney to protect their rights among other language.
"We did not receive the list (actually we only examined it) until
after all of the letter had gone out and been received by holders. That
prompted hundreds of phone calls, faxes, e-mails and letters from irate
permit holders. I ended up talking to more than 100 people, Maline probably
the same. Most were appeased by the fact that we had no plans to publish
the list in the paper. Many felt it was no one's business to even look
at. Many said they didn't mind a citizen looking at it 'but not the media.'
"Essentially the county here has made it highly difficult, if not
impossible, to examine the full applications by virtue of the copying fees
(.25 per page) and the letters it sends out prompting public hysteria.
(We received verbal threats and a bomb threat that evacuated our building).
"I'd be interested to know if any other sheriffs have a similar
notification policy. Ours says it was implemented after the Block decision
and was discussed among sheriffs in the state. I also am curious as to
your thoughts or others' experiences with the requirement that we pay for
copies that must be redacted just to examine. We are going to battle the
county over the fee, which is obviously far in excess of the actual cost
of duplication.
"Thanks for the assistance. I hope other newspapers can learn and
benefit from this. We're not giving up."
_________________________________
Request upsets gun owners
Newspaper seeks list of permit holders
by Maline Hazle
Record Searchlight
A request by the Record Searchlight to obtain a list of Shasta County
concealed weapon permit holders sparked a flood of telephone calls to newspaper
offices Thursday and a wave of negative reaction to the newspaper.
The newspaper had made the formal request to the Shasta County Sheriff's
Department on Sept. 13, seeking information in the double-slaying case
of Gary Matson and Winfield Mowder, Record Searchlight Managing Editor
Greg Clark said. Two brothers, Matt and Tyler Williams of Palo Cedro, have
been charged in the July killings.
``We made a request for this public information in the process of reporting
on this story, and have asked for nothing more than what is available to
any ordinary citizen under state law,'' Clark said. ``We simply wanted
to know if the Williams brothers or anyone in their family had a concealed
weapons permit. We have no intention of publishing or making public any
names or personal information in the list,'' he said.
Initially, the Sheriff's Department refused to give specific information
about the names of permit holders, including the Williamses, to the newspaper.
Later the same day, the Sheriff's Department told the Record Searchlight
that the Williams brothers did not have any permits.
Some days later, while examining information contained in the unsealed
search warrants in the Williamses' case, the newspaper found a reference
to ``I.D. concealed license Benjamin Williams.'' That led the newspaper
to reopen the issue of the concealed permits question, Clark said. ``At
that point, to satisfy our needs, we made a request for the permit list,''
he added.
Citing the California Public Records Act and a 1986 state Supreme Court
decision affirming that the concealed weapons permits are public record,
the newspaper then asked to examine ``all applications for carrying concealed
weapons permits and a list of all licenses issued by the Shasta County
sheriff authorizing the possession of concealed weapons.''
Sheriff's officials have said there are about 3,800 valid permits. After
being told by county legal representatives that reviewing even limited
information on the weapon permit applications would be a ``time-consuming
and expensive procedure,'' the newspaper Monday asked only for a list of
permit holders and hometowns. As of Thursday, the list had not been given
to the newspaper.
The state application for concealed weapons licenses, a form used by
Shasta County, warns applicants that information disclosed in the application
may be subject to public disclosure.
A separate section of the form requires the applicant to acknowledge
that ``the information contained in this application may be a matter of
public record and shall be made available upon request or court order.''
In addition, Sheriff Jim Pope has said it is his policy to notify permit
holders should a request be made for the information contained in the applications.
That policy is not part of the state law, but a county policy.
Pope did so in a letter dated Tuesday. More than 4,000 copies of the
letters explained that the sheriff is ``required by law to make this public
information available to the media or other requesting party.''
Pope also suggested that permit holders who ``object to the use of your
name and other disclosed information by the Record Searchlight'' call Clark
or reporter Maline Hazle.
More than 100 callers contacted the newspaper and were told the newspaper
has no intention of making public any information contained in the permit
applications.
``We deal with sensitive personal information every day in our reporting,
much of it in public records. The only difference with these records is
that the county felt obligated to send letters to thousands of people,
alarming them, we feel, needlessly,'' said Tom King, the Record Searchlight's
editor. ``The letter was inflammatory. I was shocked that the sheriff would
send out a letter like this.''
______________________________________
Uproar spurs sheriff to send 2nd letter on gun issue
by Maline Hazle
Record Searchlight
Shasta County Sheriff Jim Pope said Friday that he will send a second
letter to concealed weapons permit holders to try to calm a firestorm of
protests over the release of records listing their names.
His letter will explain that the Record Searchlight ``has no intention
of publishing or making public a list of individual names of permit holders.''
The letter, which officials said will be mailed Monday, was written
in the face of massive reaction to a Tuesday letter from Pope warning permit
holders that the newspaper had made a formal request to view concealed
weapons applications and permits. The request cited the California Public
Records Act, under which such documents are public record. That first letter
fueled hundreds of telephone calls to the newspaper and to the sheriff's
office, mostly from permit holders who feared that the newspaper was about
to publish a list of their names and home addresses.
Some of those calls were threatening, and the newspaper office on Twin
View Boulevard was evacuated for about an hour Friday morning after a woman
caller telephoned the newspaper, saying a bomb would go off at 11 a.m.
The building was immediately evacuated.
Pope and Undersheriff Larry Schaller arrived in the midst of the evacuation
for an 11 a.m. meeting with Tom King, the Record Searchlight's editor,
the newspaper's publisher, Deborah Smiddy, and others. After the nearly
two-hour meeting, Pope said he would send out a second letter clarifying
the newspaper's request.
The new letter explains to permit holders that the Record Searchlight
request was made in connection with attempts to obtain information on suspects
in the slayings of Winfield Mowder, 40, and Gary Matson, 50, a Happy Valley
gay couple found shot to death July 1.
Search warrant returns obtained by the newspaper disclosed the possibility
that one of the suspects, Benjamin Matthew Williams, 31, of Palo Cedro,
might have held a concealed weapons permit.
After Friday's meeting with the sheriff, a reporter was allowed to look
at a list of permit holders. Neither Williams, nor his brother and co-defendant
James Tyler Williams, 29, was on the list.
Pope later said that the permit referred to in search warrant documents
was a 1995 application apparently filed in Idaho by Matt Williams (both
brothers use their middle names). The elder brother lived in Idaho in 1995.
``If the Sheriff's Department had simply answered our inquiries about
the Williams brothers, none of this would have happened,'' said King. ``The
tone of the sheriff's letter and his reaction was unnecessarily inflammatory
and created this backlash from the community. We never had any plans to
publish this list and we still do not. It's unfortunate this simple request
for information has led to all of this.''
The sheriff's letter also offers an apology. ``Regrettably, the requested
information and the subsequent letter of notification have resulted in
heightened community concern over the motive for the request,'' the letter
says. ``I had no intention of performing a disservice to the Record Searchlight
by notifying permit holders of the request, yet at the same time I will
comply with the legal parameters and the established Sheriff's Office policy
to notify permit holders prior to disclosure.''
In addition to the second mailing, Pope will review the 1992 Sheriff's
Department policy that prompted his first letter, Schaller said Friday.
``Yes, the sheriff is committed to a review of this and other policies
to ensure their current appropriateness,'' Schaller said. ``The sheriff
remains committed to the constitutional rights of free press, public information
and privacy.''
The California Public Records Act and a 1986 state Supreme Court decision
decree that weapons permit information is public in California with the
exception of home addresses and telephone numbers of peace officers, judges,
court commissioners and magistrates.
Also to be kept from public view is information that indicates when
or where an applicant is vulnerable to attack and the applicants' medical
or psychological history. The law says nothing about notification of permit
holders when a request is made for the public information contained on
their applications. That notification policy is Pope's and the Sheriff
Department's, and it goes beyond the state law, King said.
Back to top
SNEAK AMENDMENT TO BILL MAKES HOME CARE PROVIDER
DATA SECRET
A last minute amendment to a bill, otherwise intended to make identities
and contact data of those paid by the state to provide "in-home support
services" available to county public employee unions, provides that
the information cannot be released to anyone else. This provision to AB
515 was never heard in committee but has been signed into law.
The measure, by Assembly Member Roderick Wright (D-Los Angeles), was
approved by Governor Gray Davis despite a letter from the California Newspaper
Publishers Association asking for a veto because of the lack of committee
deliberation.
As introduced and until it reached the Senate floor, AB 515 was intended
to assure that public employee unions seeking to organize such workers
could obtain the necessary contact information. The bill responded to contentions
made by counties that such information was exempt from disclosure under
the California Public Records Act.
The eleventh-hour amendment confirmed that general position -- and then
some -- by making release of the data not only discretionary (as it would
be under the privacy exemption) but prohibited.
Comment: When people wonder why public records policy in California
is such a chaotic mess, episodes like this are part of the explanation.
Some of the worst secrecy effects come from judicial interpretations of
the statutes, but the mindless inconsistency of the horde of specific rules
both invites and is complicated by such last-minute, unmonitored deal-cutting.
To get the necessary votes, the author obviously offered to protect "privacy"
by making the access entitlement available to union people only. The trend
here, exploding in recent years, is to evolve the law into a California
Peculiar Records Act -- peculiar in the sense of information access rights
parceled out for particular requesters and purposes, and also in the more
vernacular sense.
Back to top
GOVERNOR SIGNS BILL AMENDING 'DECEASED PERSONALITIES'
LAW
Governor Gray Davis has signed into law an amendment to the current
protection for estates or other survivors of "deceased personalities"
who register the dead celebrity's name, likeness, voice or signature with
the secretary of state -- and thereby acquire a property right in such
items, with exclusive control over how they're commercially used.
SB 209 by Senator John Burton (D-San Francisco) clarifies this law (and
renames it as the Astaire Celebrity Image Protection Act) to correct the
effect of an appellate decision against the interests of Astaire's widow.
In Astaire v. Best Film & Video (9th Cir. 1997)116 F.3d 1297, she sued
the producers of a series of video dance lessons which incorporated brief
movie clips of Fred Astaire dancing, tacked onto the beginning. Mrs. Astaire
claimed that use was a commercial appropriation of the star's likeness
-- one of the iconic property items which she had registered for exclusive
control.
Mrs. Astaire won the case at trial, where the U.S. District Court found
the use to be part of an unauthorized product covered under, but not exempted
by, Civil Code Section 990. That provision exempts uses of registered items
in a "play, book, magazine, newspaper, musical composition, film,
radio or television program, other than an advertisement or commercial
announcement." However, the Ninth Circuit reversed, holding that the
statutory defense for unauthorized use of Astaire's likeness in "film"
protected Best Video from liability, since the legislature must have known
that many films are converted to video productions.
The bill's original approach was simply to eliminate the exempted media
altogether, leaving it to case by case litigation to decide whether the
statute's absolute ban, in effect, on unconsented uses in any medium was
a violation of the First Amendment. Later the bill restored protection
for the listed media, but complicated matters by giving survivors a basis
to sue against media or artistic uses which resulted in knowingly false
impressions -- not only falsehoods injurious to the deceased's reputation,
which would have been a radical enough innovation in libel law, but any
knowingly false use, such as in an admittedly fictional play, book or film
putting the dead person in a situation contrary to provable fact.
But that qualifier was removed late in the game, and the bill's final
form maintains protection for media, history, scholarship and art, but
simply says that strictly commercial uses embedded within those forms --
an advertisement in a newspaper, for example -- still need the use-owner's
permission.
As amended, Section 990 is renumbered Section 3344.1 and states in pertinent
part:
"(a) (1) Any person who uses a deceased personality's name, voice,
signature, photograph, or likeness, in any manner, on or in products, merchandise,
or goods, or for purposes of advertising or selling, or soliciting purchases
of, products, merchandise, goods, or services, without prior consent from
the person or persons specified in subdivision (c), shall be liable for
any damages sustained by the person or persons injured as a result thereof.
In addition, in any action brought under this section, the person who violated
the section shall be liable to the injured party or parties in an amount
equal to the greater of seven hundred fifty dollars ($750) or the actual
damages suffered by the injured party or parties, as a result of the unauthorized
use, and any profits from the unauthorized use that are attributable to
the use and are not taken into account in computing the actual damages.
In establishing these profits, the injured party or parties shall be required
to present proof only of the gross revenue attributable to the use and
the person who violated the section is required to prove his or her deductible
expenses. Punitive damages may also be awarded to the injured party or
parties. The prevailing party or parties in any action under this section
shall also be entitled to attorneys' fees and costs.
(2) For purposes of this subdivision, a play, book, magazine, newspaper,
musical composition, audiovisual work, radio or television program, single
and original work of art, work of political or newsworthy value, or an
advertisement or commercial announcement for any of these works, shall
not be considered a product, article of merchandise, good, or service if
it is fictional or nonfictional entertainment, or a dramatic, literary,
or musical work.
(3) If a work that is protected under paragraph (2) includes within
it a use in connection with a product, article of merchandise, good, or
service, this use shall not be exempt under this subdivision, notwithstanding
the unprotected use's inclusion in a work otherwise exempt under this subdivision,
if the claimant proves that this use is so directly connected with a product,
article of merchandise, good, or service as to constitute an act of advertising,
selling, or soliciting purchases of that product, article of merchandise,
good, or service by the deceased personality without prior consent from
the person or persons specified in subdivision (c).
****
(f)(2) Any person claiming to be a successor-in-interest to the rights
of a deceased personality under this section or a licensee thereof may
register that claim with the Secretary of State on a form prescribed by
the Secretary of State and upon payment of a fee of ten dollars ($10).
The form shall be verified and shall include the name and date of death
of the deceased personality, the name and address of the claimant, the
basis of the claim, and the rights claimed.
(3) Upon receipt and after filing of any document under this section,
the Secretary of State shall post the document along with the entire registry
of persons claiming to be a successor in interest to the rights of a deceased
personality or a registered licensee under this section upon the World
Wide Web, also known as the Internet....
****
(g) No action shall be brought under this section by reason of any use
of a deceased personality's name, voice, signature, photograph, or likeness
occurring after the expiration of 70 years after the death of the deceased
personality.
(h) As used in this section, "deceased personality" means
any natural person whose name, voice, signature, photograph, or likeness
has commercial value at the time of his or her death, whether or not during
the lifetime of that natural person the person used his or her name, voice,
signature, photograph, or likeness on or in products, merchandise or goods,
or for purposes of advertising or selling, or solicitation of purchase
of, products, merchandise, goods, or services. A "deceased personality"
shall include, without limitation, any such natural person who has died
within 70 years prior to January 1, 1985.
****
(j) For purposes of this section, a use of a name, voice, signature,
photograph, or likeness in connection with any news, public affairs, or
sports broadcast or account, or any political campaign, shall not constitute
a use for which consent is required under subdivision (a).
(k) The use of a name, voice, signature, photograph, or likeness in
a commercial medium shall not constitute a use for which consent is required
under subdivision (a) solely because the material containing the use is
commercially sponsored or contains paid advertising. Rather, it shall be
a question of fact whether or not the use of the deceased personality's
name, voice, signature, photograph, or likeness was so directly connected
with the commercial sponsorship or with the paid advertising as to constitute
a use for which consent is required under subdivision (a).
****
(o) This section shall be known, and may be cited, as the Astaire Celebrity
Image Protection Act."
Back to top
GOVERNOR SIGNS BILL PROVIDING ACCESS TO JUVENILE
COURT FILES
Governor Gray Davis has signed a bill allowing juvenile court files
concerning minors who have died under the court's jurisdiction to be opened
upon petition to the court, subject to certain deletions of material that
might cause harm to surviving minors. Prompting the bill are several cases
in which court wards have died under controversial circumstances.
SB 199 by Senator Richard Polanco (D-Los Angeles) enacts the Lance Helms
law of confidentiality, whose namesake was one of four children , three
in Los Angeles County and one in Sacramento County, whose deaths were cited
as examples of cases where a dependent or delinquent child died while under
the supervision of a county protective agency or after intervention by
county agencies.
As noted in the bill analysis of the Assembly Judiciary Committee:
" In 1995, the case of Lance Helms received extensive media coverage
over the shortcomings in the state's child welfare system. At 2 years of
age, Lance Helms was returned to the care of his father, who had a long
history of violence and criminal activity. After months of abuse, Lance
died as a result of a severe beating from his father. The court was heavily
criticized for placing a young child in the care of aknown violent offender.
"Two other cases reported in the media last December have also
highlighted deficiencies in the foster care system. In both of these cases,
children died during the time that they were wards of the juvenile court,
and in both cases attorneys for the county sought to have the records sealed.
The parents of the children allege that the request to seal the records
was of no benefit to the deceased children and that the county was merely
attempting to hide its mistakes.
"The records of both cases were eventually opened, but only after
litigation. Partly in response to these cases, the Los Angeles County Board
of Supervisors passed a resolution urging the Legislature to remove the
presumption of confidentiality regarding the juvenile case files of deceased
children."
The key provisions of SB 199, in pertinent part, amend Welfare &
Institutions Code Section 827 to state:
"(a) (2) Notwithstanding any other law and subject to subparagraph
(A) of paragraph (3), juvenile case files (Ed. note: pertaining to dependent,
not delinquent wards) shall be released to the public pursuant to an order
by the juvenile court after a petition has been filed and interested parties
have been afforded an opportunity to file an objection. Any information
relating to another child or which could identify another child, except
for information about the deceased, shall be redacted from the juvenile
case file prior t
