Stories: Public Information

These reports cover issues dealing with the public's right of access to information held by government agencies and courts, at the federal, state and local level. The typical laws involved are the California Public Records Act, the federal Freedom of Information Act, and rules on access to records of state courts, adopted by the California Legislature or the California Judicial Council.

2001

Courts Have New Rules on Access to Electronic Records (12/31/01)

Newspaper Wins Order to Release Plea Bargain Records (12/31/01)

Santa Clara Court Restores Access to Electronic Filings (12/17/01)

CFAC to Appeal Denial of Fees in EMF Documents Case (12/17/01)

Furor erupts over state’s sale of vital statistics data (12/10/01)

Court: Accuseds' Names Not Private in Court Document (12/3/01)

Court: Law Exposing Cop Complainants Unconstitutional (12/3/01)

Pasadena: Applications For Commission Spots Are Private (11/19/01)

Sunshine Fights Involving Water District Winding Down (11/5/01)

White House Order Guts Access to President's Papers (11/5/01)

Judicial Council Delays Acting on Access to E-Records (11/5/01)

Mercury News Sues Court for Withheld Case Documents (10/29/01)

Dissenting Senator Lists His Misgivings With Terrorism Bill (10/29/01)

U.S. Attorney General Ashcroft signals clampdown on FOIA (10/22/01)

Court: Insurance firms’ data on policies in poor areas is public (10/22/01)

Newspaper's Survey of Sheriff's Log Finds 70% Incomplete (10/15/01)

Legislator’s records access audit shows schools lagging (10/8/01)

Governor Signs Bill on "Customer-Friendly" CPRA Access (10/1/01)

Court: Routine Traffic Stop Information Not Open to Public (10/1/01)

Assembly Speaker Hertzberg Kills Secret Settlements Bill (9/24/01)

Court: Agency's Lawayer's Communication Not Disclosable (9/10/01)

Court: Public Entitled to Know of Ex-Con Daycare Workers (8/27/01)

No Federal Court Records Open to Online Access (8/20/01)

City Attorneys Protest Bar Rules on Duties to Clients (8/13/01)

Court: County Can Assert Copyright in its Public Record (8/7/01)

"User-friendly" public records access bill to be amended (7/30/01)

State Releases Electromagnetic Field Data Sought By CFAC (7/16/01)

What the reports say: Public health, policy implications (7/16/01)

CFAC, Publishers Comment on County Copying Fees Issue (7/9/01)

Uncensored Copies Of Power Contracts Released (7/9/01)

Federal Foia at 35: New Report Details Pluses, Minuses (7/9/01)

State Sits Tight On EMF Reports; Lawmakers Interested (7/2/01)

Governor Ordered To Release Power Contract Details (7/2/01)

Papan Bill On Help For Public Records Requesters Advances (6/25/01)

Shelley Bill On "Public Interest Override" Taken Off Track (6/25/01)

CFAC Suing For Reports On High Power Lines' Radiation Effects (6/18/01)

Newspapers Comment On Rules For Access To Court E-Records (6/18/01)

A.G. Seeks Comments On County Charges For Records Copying (6/18/01)

Court Forces Governor To Abide By Public Records Law (6/18/01)

Union-Backed Bill Would Make All UC Employee Data Secret (6/11/01)

Bills On Settlement Secrecy Advance After Key Amendments (6/11/01)

Court: Judge Correctly Withheld File On Young Ward's Death (6/11/01)

Court Awards Fees, Says Written CPRA Requests Not Needed (5/21/01)

Claremont Courier, CFAC Board Member Win CPRA Fees (5/14/01)

CFAC Joins Amicus Brief Urging Unsealing Of 'Survivor' Deposition (5/14/01)

Busy Week For New Legislation Of Significance For CFAC (5/7/01)

Legislation Would Seal Domestic Violence Information (4/27/01)

Bill On Help To Records Requesters Passes First Committee (4/20/01)

"Public Interest Override" Bill Faces First Committee May 7 (4/20/01)

Bill To Reduce Secret Settlements Passes First Committee Test (4/6/01)

Editor Jailed For Source Silence Now Posting Sunshine Wins (4/6/01)

Suits Filed For Power Deal Data; A.G. Backs Governor's Refusal (3/30/01)

State Courts Eye New Rules On Access To Electronic Files (3/30/01)

CFAC Beacon Winner Wins Release Of Cop Records Under Foia (3/30/01)

Major Newspapers, AP Seeking Governor's Power Deal Data (3/16/01)

Weekly Publisher Wins Records Case Against Police Department (2/16/01)

City Of Willows Pays Court Fees And Costs In CPRA Case (2/16/01)

Governor's Office: Put Request In Writing And Come Back In Ten Days (2/16/01)

Secrecy On State Power Deals Brings Records Act Into Play (2/9/01)

Bee Wins Round On Politician's Name, Sues Uc Davis For Crime Reports (2/2/01)

Mayor's Aide's Misconduct: Private, Or A Matter Of Public Interest? (2/2/01)

CFAC Urges Maximum Public Access To Federal Court Files On The Net (1/26/01)

CFAC To Ask For Sunshine Cleanup Of Quick-Fix Power Crisis Bill (1/19/01)

Press-Enterprise Sues Health Care Corporation To Obtain Salaries (1/12/01)

New Law Requires Public Agencies To Share The E-Records (1/5/01)

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Courts Have New Rules on Access to Electronic Records (12/31/01)
California's Judicial Council has adopted Rules of Court effective next July on public viewing and copying of digital court files.

Acting at its last 2001 meeting on December 18, the Judicial Council of California approved its Court Technology Advisory Committee¹s recommendation to adopt new rules 2070­2076 of the California Rules of Court and repeal section 38 of the Standards of Judicial Administration.

The new rules, which take effect July 1, 2002, were developed pursuant to Code of Civil Procedure section 1010.6(b), which requires the council to adopt uniform rules for electronic filing and service of documents in trial courts by 2003.

Similar to recently adopted federal court policies, the new California rules permit broad electronic access to most superior court civil case records, but preclude remote Internet access to records in criminal and other cases that are likely to contain sensitive personal information. As summarized by the Administrative Office of the Courts, the key features of the rules are as follows.

"Basic case information: Courts will provide electronic access to basic information about all cases through computer terminals at the courthouse or remotely over the Internet. The rule requires electronic access to the extent feasible for Œregisters of actions, calendars and indexes, and other records in civil cases. State law provides that the register of actions should include the title of each case, the date it began, and a memorandum of every subsequent proceeding in the action with its date.

"Case-by-case access: When a court provides electronic access to records other than calendars, registers, and indexes, it may do so only on a case-by-case basis, using the case number, caption, or name of party to identify the record. Likewise, the court may not provide Œbulk distribution of its records other than calendars, registers, and indexes.

"Remote access: Records in six types of cases ­ other than registers, calendars, and indexes ­ will be available electronically at the courthouse but may not be available remotely, due to privacy concerns. These case types are family law; juvenile; guardianship or conservatorship; mental health; criminal; and civil harassment.

"Courts without electronic access: The rules do not require courts to maintain electronic court records. If such access is not feasible because a court does not have the resources or technical capacity to provide it, the court must still make all of its electronic records available in some form, for example, by printing out paper copies of the records.

"Vendor Contracts: A court¹s contract with a vendor to provide public access to its electronic records must be consistent with the new rules, and require the vendor to provide access and protect confidentiality as required by law."

The council also asked that its staff, in consultation with the Court Technology Advisory Committee, report back to the council by January 2004 on the experience of courts in providing electronic access to court records over the Internet and other related issues.

James Chadwick, a member of the board of directors of the California First Amendment Coalition and the attorney who submitted comments on the proposed rules at two junctures on behalf of CFAC, the California Newspaper Publishers Association and others, observed:

"The rules enacted by the Judicial Council are a considerable improvement over those originally proposed by the Court Technical Advisory Committee. However, they still include limitations that simply are not warranted, and certain provisions are ambiguous. The rules will leave the individual courts with discretion, so they provide an opportunity for the courts to take a step forward or to erect further obstacles to public access. I hope they choose the road toward openness and accountability."

For reference, see the rules themselves at: (Final_Report_and_Rules); as well as staff explanatory memos concerning Judicial Council policy (Council_Policies), the current court environment for electronic records (Current Environment), policies in other jurisdictions (Other_Jurisdictions), the rationale for excluding remote access to criminal and other cases (Remote_Access_Exclusion_Rationale), and the rationale for case-by-case access (Case_by_Case_Access_Rationale) .

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Newspaper Wins Order to Release Plea Bargain Records (12/31/01)
A judge has ruled that the San Diego Union-Tribune has the right to see plea agreements in a kidnap-disappearance case.

But U.S. District Judge Jeffrey T. Miller sealed his December 19 order until January 8, allowing the U.S. Attorney's Office time to appeal the ruling to the U.S. Ninth Circuit Court of Appeals.

As reported in the Union-Tribune, access became an issue in October when John Krueger pleaded guilty to plotting the kidnapping of Richard Post, a private investigator, and also, in a separate prosecution, to helping another suspect in the Post kidnapping illegally sell and promote unapproved medical devices.

The U.S. Attorney¹s office contends that Post, a 54-year-old private detective from Point Loma, was tortured and killed in Mexico. But no body was ever found, and defense attorneys in the kidnap-related cases have argued that the victim still could be alive.

After Krueger's two guilty pleas, prosecutors refused to give the newspaper their copies of the agreements reached by Krueger, his attorney and prosecutors. Assistant U.S. Attorney Barbara Major asked Judge Miller to seal the filed plea agreements as well.

Reports the newspaper, "As part of a local practice in the San Diego federal court, plea agreements are not filed with the court, so they are only available to the public or the media through the U.S. Attorney's Office. As a result, prosecutors had not asked that Krueger's plea agreements be sealed until the Union-Tribune asked for copies."

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Santa Clara Court Restores Access to Electronic Filings (12/17/01)
Not long after being sued for cutting off access to computerized civil case information, a court has opened the files once again.

Santa Clara Superior Court officials on December 3 reversed their policy preventing the public and attorneys from viewing and printing out case management data, but denied that the about face had anything to do with a suit by the San Jose Mercury News.

The data provided a profile of each case, including motions and other interactions between attorneys and judges. The curtailed access left journalists and the public able to see only the case name or number, the parties’ names and whether the case had been concluded.

As explained in the Mercury News’ own story about why it sued, “If a recent visitor to the courthouse wanted to do something as elementary as find out who won a particular malpractice lawsuit, she had to search the computer database for the doctor's name, request the paper files for every lawsuit against the doctor, cull the files for the suit in question and then sift through the file's contents to find a final ruling.”

The newspaper brought suit in October, contending that the court was withholding its database and dockets without satisfying the procedural and substantive requirements for doing so under the First Amendment, California law and court rules. Those standards require specific findings that the access restriction is justified by a threat to fundamental public interests that cannot be avoided by any less drastic means.

The officials had insisted all along that the suspended access, which began this summer, was pursuant to a long-range plan to upgrade case management and calendar programs and safeguard sealed court records. They say they began restricting access out of concern for accuracy and privacy glitches stemming from the transition to a new computer system whose installation will not be complete until next July.

But the newspaper’s attorney was skeptical that the restored access was coincidental and preordained. "I am confident it happened because of our lawsuit," James Chadwick, a Gray Cary Ware & Freidenrich partner, told the San Francisco Daily Recorder. "I am not the least bit surprised."

Originally, Court Administrator Kiri Torre had said access would not be permitted until the system upgrade was completed in February, and Presiding Judge Richard Turrone later said the blackout might last until the new system was fully mid-2002.

Court clerks used the blackout period for a winnowing of some 1,000 files said to contain sealed documents, to which the transitional electronic system might have inadvertently provided access.

Now that access is restored, attorneys and the public are once again able to browse civil case docket information at terminals in the clerk's office and pay for printouts as desired.

Mercury News attorney Chadwick said the lawsuit would continue, to force release of a copy of the entire civil case database, enabling it to document stories on trends in litigation. But that demand may never be met, court officials say, because it’s for something the court has never provided in the past.

Comment: The California Judicial Council, meeting tomorrow, December 18, is due to adopt new Rules of Court addressing public access to court electronic files and databases.

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CFAC to Appeal Denial of Fees in EMF Documents Case (12/17/01)
A superior court judge has ruled CFAC ineligible to recoup attorney fees in a public records case involving health risks.

Alameda County Superior Court Judge Judith Ford announced her tentative decision last Thursday, December 13, that the California First Amendment Coalition was not entitled to have its attorney fees paid by the state because the latter’s decision to release records concerning electromagnetic field (EMF) radiation was not prompted by CFAC’s Public Records Act lawsuit last summer.

The Department of Health Services (DHS), sued by CFAC in late June, released two reports on July 13. The reports culminate a decade of research into possible health risks associated with exposure to electric and magnetic fields such as those that radiate from power grid lines.

The California Public Utilities Commission (CPUC) had ordered the two reports --one a compilation of all available scientific evidence, the other examining public policy implications of the data -- in 1993.

The reports were scheduled for release in early May, but at the last minute the CPUC asked the DHS to delay the release until CPUC staff could review them. Several California Public Records Act requests for the reports were denied. The letters of denial said release was inappropriate because any last-minute CPUC changes would become detectable if the reports were released before the CPUC had a chance to review or alter them.

A DHS spokesman told a reporter that the July 13 release followed a briefing conducted for CPUC staff on July 3, and was not prompted by CFAC's lawsuit. That has been the line taken by DHS in resisting CFAC’s request for attorney fees since then, and Judge Ford in her ruling last week chose to believe it.

According to a declaration filed by CFAC Executive Director Kent Pollock, Dr. Richard Neutra told him in a phone conversation in July that the studies would not have been released when they were but for the lawsuit. But Neutra now says, in a sworn declaration filed to support denial of the fee request, that he did not make this statement, to the best of his recollection. A deputy attorney general assigned to defend the case also denies encouraging CFAC’s counsel, James Chadwick, to submit a fee summary as a basis for negotiating a reimbursement to CFAC. Given the situation, the CFAC Board of Directors last week authorized Chadwick to pursue an appeal of the fee denial.

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Furor erupts over state’s sale of vital statistics data (12/10/01)
As so often happens, a press report of an isolated privacy concern has prompted reactions that may shut public records.

In this case the concern was voiced by Senator Jackie Speier (D-San Mateo) over her discovery that the State Department of Health Services, meeting a market demand with its own tailored data packages, had been selling electronic indexes to the state’s birth data, and with them certain specifics that could be exploited by identity thieves.

Senator Speier voiced her alarm in a special interim hearing in Sacramento on privacy and identity theft. In particular she decried inclusion in the data index of individuals’ birth dates and mothers’ maiden names ­ the latter an element commonly used as a verification password by banks and other financial institutions in their phone or on-line transactions with customers.

Her concerns were promptly reported by the San Jose Mercury News, which followed with several reports noting that a prominent Web site serving genealogical researchers had promptly removed these specifics from public access, responding to complaints from citizens incensed at what they felt to be yet another threat to their personal data integrity.

Senator Speiers also called on Governor Gray Davis to do something immediately to halt the state’s sale of the sensitive data until its impact on privacy could be assessed, and last Wednesday the governor responded, as detailed in the following press release:

”Governor Gray Davis today issued an Executive Order directing the Department of Health and Human Services to suspend releasing birth and death records to private companies for 45 days. During that period, the Dept. of Health Services shall review the circumstances, if any, under which information contained in the birth and death indices may be released to third parties in compliance with applicable law. “The confidential information the state collects about Californians should be kept private, said Gov. Davis. There is too great a risk that unscrupulous people will use this information for identity theft, to falsify records, or to invade our privacy in other ways. With this executive order, we will comply with 'open records' laws while, at the same time, protecting the privacy of all Californians. A person's birth and death records should not be bought and traded like baseball cards.

“Gov. Davis' actions come in the wake of a legislative hearing chaired by Sen. Jackie Speier (D-Hillsborough) that revealed that the Department of Health Services provided a copy of the state's birth index of 24.6 million names to rootsweb.com, one of the nation's largest online genealogy Web companies. Lawmakers demonstrated how to use the free online database to find information on native Californians, including their date and county of birth and mother's maiden name. The company has voluntarily halted the distribution of the birth record information.

“The Governor's Executive Order immediately prohibits the Department of Health and Human Services from providing its birth and death record indices to third parties. It also orders the agency to recommend other measures it can take to prevent similar information from being made available. Individuals and family members will still be able to obtain these records for their own use.

”Identity theft is one of the fastest growing crimes in California. According to the Federal Trade Commission, the state has one of the highest number of complaints per capita in the nation.”

Comment: On the other hand, there has been no evidence that bulk electronic access to vital statistics ­ by sale or otherwise ­ is in fact a vector for criminal exploitation. Correspondingly, both genealogists and investigative reporters tracking patterns of medical and other abuses find databases of such information indispensable. And the perceived horrors are not always what they seem. As for Social Security numbers appearing in death records,for example, the Social Security Administration itself sells CD ROM lists of numbers assigned to the now deceased ­ precisely to allow the private sector to stay alert to fraud. An openminded inquiry by the state into these and related facts should act as a dampener on what so far seems to be little more than negligent demagoguery -- if facts were in control. But depressingly, the California Public Records Act, which after all mostly embodies common law tradition as old as the nation, has in common with the First Amendment the phenomenon that if most people reading and understanding its implication s were given the chance, they would reject it as a shockingly reckless proposition. The main difference is that most people would favor the First Amendment for themselves, but not entrust others to its protection, whereas most people would favor a public records law giving them access to all the facts they desired, but under which the only names or interests recorded were those of the other fellow. That is the mindset also, unfortunately, pervading too much of the Legislature, and the bills prompted by this episode can be expected to erode access briskly unless resisted with attention and energy.

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Court: Accused's Names Not Private in Court Document(12/3/01)
A judge was in "clear error" in redacting the names of a public official and a private citizen from court-filed documents according to the U.S. Court of Appeals for the Ninth Circuit.

The Dec. 3 decision (McClatchy Newspapers, Inc. v. District Court Nathanson), Case No. 01-70941(McClatchy_v_District Court) was a victory for The Sacramento Bee, which sued in 1999 to challenge the deletion by U.S. District Court Judge Lawrence K. Karlton of the name references in two letters filed with the court by a convicted felon. One of the names reportedly kept secret was that of Gov. Gray Davis, who was state controller at the time. The Bee reported that letters from attorneys seeking a shortened prison sentence for Mark L. Nathanson, a former California Coastal Commissioner convicted for extorting bribes, named Davis as one had who consulted with Nathanson on leads to potential campaign contributions. The letters had been kept under federal court seal since 1994. "Injury to official reputation is an insufficient reason Ofor repressing speech that would otherwise be free," the appellate court said. The decision was important to open government advocates who have watched access to public information erode over the last several years. "If the newspaper had let the lower court decision stand, the forces of secrecy would have ratcheted down the already pathetic public information flow," said CFAC Executive Director Kent Pollock. "Instead, they are now on clear notice that the right to public information has substantial weight." The Bee¹s interest was peaked when the newspaper learned that Nathanson had been released early from prison in January 1997 under several conditions, and that in September of 1998 his probation officer had petitioned the court to have him explain why he should not be put back behind bars for failing to live up to one of the conditions--paying back money extorted from one of his victims. The newspaper learned that Nathanson had received a reduction in sentence upon motion by the government, with no reason stated on the record -- either in the motion itself or in the order of Judge Karlton -- and with no hearing. The government said it supported the reduction in exchange for Nathanson's cooperation in an unidentified civil case in Los Angeles, and also out of humanitarian concern for his affliction with a potentially deadly skin cancer. But that disclosure only emerged after the Bee took legal action to demand access to three sequentially numbered documents that Reporter Denny Walsh had discovered missing from the Nathanson case file. These turned out to be correspondence sent to federal prosecutors by Nathanson's lawyers--one just before he was sentenced to 57 months in prison and the second about a year later. Both sought the government's support for a sentence reduction, and both, when approved for release to the Bee December 7 in edited form, had names deleted at several points. The first attorney's letter showed Nathanson alleging that (name deleted) had occasionally met with him at (name deleted) restaurant in Beverly Hills. This politician was interested in campaign contributions from people Nathanson had helped -- as Coastal Commissioner or otherwise. Nathanson and the politician, the letter said, "would make and go over lists of people that Nathanson had assisted with government approvals -- both at the Coastal Commission and elsewhere -- saying that he, (name deleted), 'needed to call' those individuals for campaign contributions. "As Nathanson understood it," his attorney's letter continued, "in calling these people, (name deleted) was going to suggest a link between he (sic) and and the approvals Nathanson had helped to secure in order to solicit campaign contributions from the individuals on the lists." A second letter sent to prosecutors a year later -- in August 1994 -- by another Nathanson attorney offered more allegations, according to the Bee, about linkage between the convicted extortionist and (name deleted). Both letters were soon attached to a motion by Nathanson's counsel, filed with the court and formally seeking a sentence reduction. None of this paperwork was put in the court file, but instead consigned to the clerk's safe, under a sealing order issued by Judge Karlton but not signed. When the Bee's court challenge persuaded Karlton that the letters were matters of public record, he released them with the name redactions, he explained, to preserve reputations from unfair harm. Judge Karlton acknowledged that the exact identity of the politician mentioned by Nathanson was at least potentially newsworthy, "if not so much for the content as for the demonstration of how corrupted our criminal system has become by virtue of the system of bribing people to rat on others. The problem is that, and that is an important public issue, although I have no doubt that is not how the Bee would play the material which is sealed. And that's the problem." The Bee¹s February 2000 story breaking the matter stated that "numerous sources who have seen unedited versions of the letters say that Nathanson leveled accusations ...against Gray Davis, the Democratic career politician who then was state controller and now is governor of California." The newspaper quoted Davis¹ then press spokesman, Michael Bustamante, as declining "to dignify false and reckless 7-year-old accusations made by a convicted felon hoping to convince federal authorities to reduce his prison sentence." The story also quoted "federal sources close to the investigation" as calling Nathanson's allegations, even if true, too vague to support criminal prosecution. But the Bee story noted one clear anomaly aside from the secrecy surrounding the sentence reduction and the letters seeking it. In the federal system, sentence reduction, even on motion of the government, is not authorized for reasons of humanitarian concern or even assistance to the government in civil cases. Under Rule 35 (b) of the Federal Rules of Criminal Procedure, the court may, "on motion of the Government made within one year after the imposition of the sentence, ... reduce a sentence to reflect a defendant's subsequent, substantial assistance in the investigation or prosecution of another person who has committed an offense..." The Bee sued for a writ of mandamus, and the Ninth Circuit ordered Karlton to make factual findings showing why privacy interests alone would justify the redactions, which also suppressed the identity of a developer named in the letters. Last April Judge Karlton issued his findings, summarized by the Ninth Circuit as follows: "first, that there was absolutely no reason to believe that the accusations [in the Proffer Letters] are true; second, the court had placed no weight on the Proffer Letters in reducing Nathanson's sentence; third, the letters contain no newsworthy information; fourth, that, to the extent the high public official was accused of criminal conduct, the accusation was prejudicial to the official's reputation; fifth, that the allegations concerning campaign fund-raising would have a serious adverse effect upon the official's public and private reputation and that given the widespread public suspicion of corruption, no amount of denial would completely dispel suspicion; sixth, that the private individual had an excellent reputation which was a significant business asset¹ and that there was a substantial probability that, absent redaction, the ability of the individual and his company to complete current and anticipated business activities would be harmed; and finally, that other innocent parties, including the private individual' s partners and employees¹ would suffer harm directly attributable to the release of the unredacted letters. As a conclusion of law the court found its redactions to serve the compelling interest of protecting both the privacy interests and the reputational interests of the official, the private individual, and other innocent persons."

The Ninth Circuit, while noting that the Bee, as a non-party, had no standing to appeal, concluded that its standing to seek a writ of mandamus was satisfied by several factors, chief among which was the need to correct "clear error" by the district court. Circuit Judge John T. Noonan concluded for the court:

"Such error is apparent. We remanded for a determination of whether privacy interests alone justify the redactions. The court's findings do not point to compelling privacy interests. The high public official has no privacy interest in freedom from accusations, baseless though they may be, that touch on his conduct in public office or in his campaign for public office. The private individual, who was found by the district court to do much business with public bodies, has no privacy interest in allegations, baseless though they may be, bearing on the way he does business with public bodies.

"Although not within the precise terms of our remand, the district court was concerned with a separate interest of both the official and the individual, that of reputation. Who could or would deny that reputation is a valuable asset? Who would dispute the district court's observation that a charge of corruption against a public official is difficult to dispel by denial? But injury to official reputation is an insufficient reason for repressing speech that would otherwise be free...Silence enforced upon the press to protect the reputation of judges is more likely to engender resentment, suspicion, and contempt much more than it would enhance respect...The same is true of public officials and of real estate developers engaged in projects requiring governmental approval."

The court, in ordering Judge Karlton to unseal the information, reminded the newspaper that it had a duty to report the information fairly:

"A decent newspaper will not publish Nathanson's accusations without also publishing the skepticism of Nathanson's credibility shared by the district judge and the office of the United States Attorney. If less scrupulous papers omit these significant doubts, these papers themselves will be of a character carrying little credibility."

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Court: Law Exposing Cop Complainants Unconstitutional (12/3/01)
A state law allowing law enforcement officers to sue citizens complaining against them for damages violates free speech rights, the California Court of Appeal for the Fourth District has ruled. The Nov. 28 decision (Walker v. Kiousis, Case No. E029822 (Walker vs. Kiousis) marks the third time the law has been struck down as flawed, but this is the first decision that would have binding effect on state courts.

Two cases from the U.S. District Court have concluded that the law is an unconstitutional infringement of speech because it subjects citizens to legal exposure when they commit libel or slander in complaining of the conduct of peace officers -- exposure they would not have in complaining of the conduct of anyone else in an official proceeding [Haddad v. Wall (C.D. Cal. 2000) 107 F.Supp.2d 1230 and Gritchen v. Collier (C.D.Cal. 1999) 73 F.Supp.2d 1148, reversed. on other grounds (9th Cir. 2001) 254 F.3d 807.]

The law in question is an exception from Civil Code Section 47, which provides an absolute privilege from liability for statements made in the course of an official proceeding: a trial, legislative or administrative hearing, a criminal or regulatory investigation, or even an official public meeting such as those governed by the Brown Act. The privilege also attaches to documents supporting these proceedings.

The exception comes in Civil Code Section 47.5, which states:

"Notwithstanding Section 47, a peace officer may bring an action for defamation against an individual who has filed a complaint with that officer's employing agency alleging misconduct, criminal conduct, or incompetence, if that complaint is false, the complaint was made with knowledge that it was false and that it was made with spite, hatred, or ill will. Knowledge that the complaint was false may be proved by a showing that the complainant had no reasonable grounds to believe the statement was true and that the complainant exhibited a reckless disregard for ascertaining the truth."

The case was prompted when CHP Officer Donovan Walker sued Bill John Kiousis for libel after the latter filed a formal written complaint against Walker, charging him with using profanities and threatening him with physical harm and, if he did not take a blood alcohol test, with three days in jail.

Walker and a partner had stopped Kiousis in traffic on December 5, 1997 and arrested him on drunk driving charges. Kiousis pled guilty to a charge of speeding while having consumed alcohol, then filed his complaint, demanding Walker be disciplined, if not fired. A tape recording made by the officers at the time of the stop showed no basis for the complaint, but did show Kiousis being profanely defiant. Walker was cleared by his superiors, then sued.

As a defense response Kiousis filed an anti-SLAPP motion, which put the burden on Walker to convince the court immediately that his case would probably prevail. Kisousis’ main contention to the contrary was that Section 47.5, which exposed him to the litigation in the first place, violates the First Amendment in selectively targeting speech critical of peace officers and therefore wrongly regulates speech based on its content. The trial court avoided the constitutional issue but granted the motion and dismissed Walker’s case, finding that Walker had failed to show any actual damage resulting from the complaint.

On appeal, the Fourth District found that rationale in error, and concluded that Walker’s case could well have survived the anti-SLAPP motion on its merits, if Section 47.5 were constitutional. Injury to reputation in this case was presumed, given the doubt cast on Walker’s professionalism, and the tape made by the officers supplied evidence that Kiousis’ charges were not only knowingly false but made out of ill will.

On the other hand, the court agreed with Kiousis that Section 47.5 was unconstitutional in enabling peace officers and them alone to sue for libel based on statements made in official proceedings, of which the formal complaint process was one example.

First, the statute contained a discrimination against certain speech not only based on its content -- discussion of peace officer conduct -- but also on its viewpoint -- criticism of that conduct. Justice Betty Richli for the court pointed out that a citizen, because of the general privilege, could not sue officers for their statements made about the citizen in official proceedings, no matter how how libelous, whereas officers could sue citizens for statements they made about the officers, conceivably in the very same proceeding. This discrimination alone, she said, renders the law "presumptively invalid."

Second, the discrimination is not justified by any of the distinctions identified by the U.S. Supreme Court. For example, the notion that peace officers are uniquely exposed to nasty attacks is not warranted, Richli noted:

"Many other types of statements which are not actionable under section 47.5 are at least as injurious as those that are. Physicians are at least as vulnerable to charges of Oincompetence’ as are law enforcement officers, as the Legislature has recognized in requiring that physicians be given at least 90 days' notice before they can be sued for malpractice. ... Yet complaints of physician incompetence to the Board of Medical Quality Assurance (now Medical Board of California) have been held to be privileged under section 47...

"Attorneys, like police officers, frequently deal with hostile members of the public, including parties to whom their clients are adverse and, sometimes, the clients themselves. ... The motivation for such persons to make false accusations against attorneys is strong, and the potential harm to an attorney' s reputation, and ultimately his or her right to practice law, is significant. Yet complaints about attorneys to the State Bar are absolutely privileged under section 47...

"Political office holders, by virtue of their widespread exposure, are subject to scrutiny by a much greater number of people than are peace officers and are required to take often controversial and unpopular public positions as part of their duties... Yet such office holders enjoy no protection from defamatory complaints about their performance as do peace officers under section 47.5." (citations omitted)

There was insufficient evidence, in short, that the disparate treatment served a compelling governmental interest. Justice Richli also cited a study of other states’ law on the subject concluding that California alone singles out complaints against peace officers for unique legal vulerability. Was such an approach necessary -- the "narrowly tailored" response to the problem of tarnished officers’ reputations? No, she concluded:

"Here ... there are ways other than the content-based discrimination imposed by section 47.5 to insure that peace officers' careers are not unduly jeopardized by unfounded citizen complaints. The Legislature already has taken such measures. Penal Code section 832.7, subdivision (a) provides that peace officer personnel records are confidential and shall not be disclosed except on motion and court order. Penal Code section 832.5, subdivision (c) provides that any citizen complaints that have been determined to be Ounfounded’ shall not be maintained in the officer' s general personnel file. In addition, any such complaints shall be removed from the officer' s general personnel file prior to any official determination regarding promotion, transfer, or disciplinary action by the employing agency...

"Similarly, there are other means to deter false accusations of misconduct than allowing an action for defamation. As the courts in Gritchen and Haddad pointed out, a law enforcement agency could require citizen complaints to be made under oath, so that false complaints would be punishable as perjury...

"The state might also do as most other states do and simply decline to provide an absolute privilege for statements made during a misconduct investigation, regardless of who makes them or about whom they are made. Then false statements by officers or in support of them would be subject to the same potential liability as false statements about them. What the state cannot do is adopt a restriction which selectively targets only speech which is critical of peace officers, unless that restriction is necessary to serve a compelling governmental interest. As we find no such necessity in this case, we conclude section 47.5 is unconstitutional on its face."

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Pasadena: Applications For Commission Are Private (11/19/01)
Forms filled out and turned in by those applying for appointment to various city commissions are not public records in Pasadena, according to Assistant City Attorney Michele Beal Bagneris.

He was responding to a California Public Records Act request from the daily Star-News. The newspaper made the request as part of a story being prepared about some residents’ objections to the appointment of an applicant to the Northwest Commission, a body advising the city council on a variety of issues in one section of the community.

Councilman Chris Holden appointed Wendy Nash to the commission to represent his Council District Three, a move that provoked several expressions of doubt as to her qualifications. Those questions led the newspaper to ask for her application form and that of her predecessor, Aprile Boettcher, who was also appointed by Holden.

But the city attorney’s office justified its contention that the applications were exempt from the CPRA by stating in a letter that the public interest in withholding the records clearly outweighed the public interest in their release, since disclosure of their content "might have a chilling effect as to applications for these positions and might make people less candid on the applications than they should be."

The reasoning is based on two cases from the California Court of Appeal concerning applicants wishing to be appointed by the governor to county board of supervisors vacancies.

But Terry Francke, general counsel for the California First Amendment Coalition, said the gubernatorial appointment cases (one of which was brought by CFAC) were inapplicable to the Pasadena situation.

"Since there is no intimate or inherently embarrassing information being sought, the only sense in which applicants might be chilled from coming forward is if they plan to lie about their qualifications," Francke told the Star News.

The Pasadena commission application forms ask for such basic facts as telephone number, home and business address, civic experience, employment experience and education and goals for serving on the commission, whether the applicant is related to any city employee, and whether he or she has potential financial conflicts of interest.

By contrast, the applications for appointment to the board of supervisors involved in the cases brought by CFAC and the Los Angeles Times delved far deeper into the applicant’s background and involved disclosure, in effect, of any skeletons in the applicant’s closet that might surface later to embarrass the governor.

Another difference, noted Francke, is that in the governor’s appointment cases the appointees would at least be subject to public scrutiny when they ran for election for the first time on the next ballot. A commissioner in Pasadena’s system is never required to be ratified by the electorate, he pointed out.

As noted by the Star News, "The city has more than 20 commissions. Some, such as the Northwest, are advisory only, but others have the power to approve items such as construction projects, although their decisions can be appealed to the elected City Council."

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Sunshine Fights Involving Water District Winding Down (11/5/01)
Barring appeal, the one-year saga of Three Valleys Municipal Water District came to an end last week in an L.A. courtroom.

(The following is a report on the multi-part litigation involving the Claremont-based water district, written by Richard McKee, a member of the board of directors of the California First Amendment Coalition.)

*****

Last November, in an attempt to avoid the release of public documents requested first by reporter Gary Scott of the Claremont Courier, and later by me and Los Angeles Times reporter Tipton Blish, the district filed suit for declaratory relief (Three Valleys Municipal Water District v. Richard McKee, Los Angeles Times, and Claremont Courier, LASC Case No. BS066313) asking the Superior Court to determine what the District was required to release and what could be withheld.

The public records requests had come as a result of the district¹s having performed an investigation (using the law firm of Liebert & Cassidy) into allegations that General Manager Richard Hansen had harassed his executive assistant after the end of an affair.

Liebert & Cassidy attorney Ed Zappia had interviewed district employees who were required to provide testimony with an assurance that what they said would be confidential. A report was then provided to the district's board (who had previously placed Hansen on paid leave), and the board reacted by reducing Hansen's pay and removing other benefits in his contract.

The executive assistant threatened to sue and the board settled almost immediately for about $60,000. However, other than the settlement agreement, the district refused to release any documents associated with the employment investigation or the executive assistant¹s threatened lawsuit - documents that had been sought by the Courier, the L.A. Times, and me.

When the Karlene Goller, counsel for the Times, brought in Davis Wright Tremaine lawyers (Al Wickers, Kelli Sager, Susan Seager, et al.) to file an anti-SLAPP motion against the district's petition, the District dropped it, and last May it was forced to pay the Times and its lawyers over $24,000 in attorney fees.

Meanwhile, I filed a Brown Act lawsuit against the district (Richard McKee v. Three Valleys Municipal Water District, LASC Case No.BS066489), and in May the district was found to have violated the Act by placing the General Manager on paid leave without proper notice and by delegating decision-making authority to an ad hoc committee. The district also agreed to the enactment of a Sunshine Ordinance as a further remedy. The court ordered that I would recover my costs as the prevailing party, in pro per.

Finally, a third case was filed this summer by Al Wickers (representing the L.A. Times and me) which sought a writ of mandate ordering the district to release all the documents we originally sought (Los Angeles Times Communications and Richard McKee v. Three Valleys Municipal Water District, LASC Case No. BS070547). And last Monday, October 29, Superior Court Judge Dzintra Janavs ordered the District to release all of the documents sought by the petitioners within approximately two weeks (giving the district the chance to appeal should it wish).

This was a most instructive hearing, as Janavs (after criticizing the district for failing to supply any declarations to justify withholding) originally observed that she could see reason to find all of the documents exempt from disclosure. But Al Wickers did a masterful job in returning Janavs' focus to the controlling case law: American Federation of State, Municipal and County Employees v. Regents (1978) 80 Cal.App.3d 913 and Register Division of Freedom Newspapers v. County of Orange (1984) 158 Cal.App.3d 893. And in the end Wicker's argument won the unredacted release of all the documents sought. These documents should shed light on conditions leading to the district's problems and will also give the public information as to whether or not the board acted appropriately.

Besides applauding Goller, Blish, and the LA Times for taking on these important open-government issues, and Wickers and the DWT team for their one year¹s worth of superlative effort, it's important to remember that this story began with a call to Gary Scott at the Courier from a source wishing anonymity, and Gary's digging for information and demands for disclosure. Early on Scott reviewed our California Journalist¹s Legal Notebook, eventually citing to the District AFSMCE v. Regents as controlling authority compelling the release of the documents he had requested. The district's legal counsel ignored Scott's instruction. But a year later the trial court affirmed his opinion.

*****

Comment: In an era of increasingly depressing threats to open government and effective journalism, this report was news too good not to share in the words of a key participant. In reaction, former Coalition president Rowland Rebele sums up the significance aptly: "Here's an interesting situation: a private individual who cares about good government (McKee) teams up with a little weekly which also cares (Marty Weinberger's Claremont Courier), and then along comes one of the largest newspapers in the nation -- the Times -- to add its commitment and legal clout. And behind these folks are the boards and staffs of the California First Amendment Coalition and the California Newspaper Publishers Association. It seems to me that such a coalition of open government advocates cannot be beat!"

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Judicial Council Delays Acting on E-Records Access  (11/5/01)
The proposed new rules were up for adoption at the October 26 meeting but were put off to the agenda for December 18.

But in any event the suggestions of access advocates appear to have made little impact on the process, since the proposals¹ worst elements are still being recommended for adoption.

The Judicial Council is the rulemaking authority for the California court system. For the past several years it has been working to settle on rules whereby public access to its records in electronic form, either on courthouse computer terminals or by remote on-line dialup, could be reconciled with concerns for personal privacy and effective law enforcement.

The current proposals from the council¹s Standing Committee on Court Technology were put out for public comment this past summer, and the California First Amendment Coalition as well as the California Newspaper Publishers Association and a variety of individual news organizations responded.

In a 27-page comment written by James Chadwick, an attorney with the Palo Alto office of Gray Cary Ware & Friedenrich, a variety of objections were raised, including:

-- Access is provided only case by case, with the requester needing to supply a case number, caption (e.g. Smith v. Jones), or a party's name. This restriction would prevent browsing through cases electronically, as reporters, for example, have always done in the paper file era. There is no reason, based on privacy or any other imaginable concern, for such an impediment.

-- Criminal case records and certain others (family law, juvenile court, guardianship and conservatorship, mental health) are entirely excluded from being accessed by remote dial-up. There is no justification for such a blanket approach, since criminal proceedings are presumed public as a matter of constitutional law, and in the other domains not all proceedings and information are confidential.

-- Also unavailable in electronic form, either remotely or at the courthouse, would be the register of actions, indexes or calendar records, making it even harder to search. Again, there is no reason for this exclusion, and it would hamper legitimate efforts to track cases in court.

Other criticisms concern:

-- the use of an overly narrow definition of "court records" subject to electronic access;

-- the inclusion in the rules' statement of purpose a recognition that privacy is of constitutional stature, without acknowledging that public access to court information has the same degree of protection;

-- an ambiguous reference to resource-based limitations (excusing compliance with the access rules) that unless clarified might allow a court to deny electronic access even to records that are kept only in electronic form;

-- an ambiguous reference to conditions on use that could be misinterpreted to give courts power to control how court record information could be used by those who obtain it in electronic form; and

-- the failure to require private companies that may contract with the courts to provide access services to keep their fees to the cost of duplication.

Chadwick's comments do suggest that in view of the potential for financial and other exploitation posed by dial-up remote access to certain data, these could be deleted from the online access service and be kept available only at the courthouse. This type of data could include Social Security numbers, financial and investment account numbers, names of confidential informants in criminal cases, identifying and contact information, and images, of victims of sexual assault crimes or seeking restraining orders in spousal abuse or stalking cases.

Chadwick told CFAC and other clients recently that the final proposals to be considered for adoption in the light of all comments are not great improvements on the originals.

"I regret to say that the (Court Technology Committee) has largely retained the most objectionable aspects of those rules: case-by-case access, no remote access to several categories of civil cases, and no remote access to criminal cases. Our comments are reflected throughout the report, albeit they are frequently distorted or over-simplified, and the committee did recommend a number of changes to the proposed rules in response to our comments.

"However, on these major points and on a number of others it did not make positive changes to the proposed rules.

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White House Order Guts Access to Ex-Presidents' Papers (11/5/01)
Either the sitting president or the concerned predecessor could veto release, despite an act of Congress to the contrary.

On Thursday, November 1, President Bush signed an executive order (www.cfac.org/Attachments/Bush_executive_order.html <../../Attachments/Bush_executive_order.html>) "interpreting" the Presidential Records Act of 1978 in a manner that allows release of a former president¹s papers to be forbidden by either the former president in question or the current incumbent ­ even if they disagree.

The 1978 law was passed to set an orderly mechanism for releasing presidential documents in the wake of protracted litigation to get access to the Nixon papers.

White House Counsel Alberto Gonzalez told the Washington Post that any veto could be subject to court challenge. But the likelihood is that the years involved would frustrate all but the longest-term historical interest.

The order also covers the papers of former vice presidents, and in some cases a deceased president's family could veto release.

As another example of how the order's interpretation actually adds barriers not found in the 1978 act, requesters for presidential documents must how show "a demonstrated, specific need" for the information. This standard is borrowed from a U.S. Supreme Court case from 1974, decided before the statute was in place. The statute makes no mention of demonstrating need.

The Post story notes, "Many officials of the Reagan and first Bush administrations are back in the White House, and critics contend that the executive order may be motivated by a desire to protect them."

A summary of reactions from historians and others concerned with public access, compiled by Bruce Craig of the National Coordinating Committee for the Promotion of History (NCCPH), observes:

"The (executive order) is characterized by Vanderbilt University historian Hugh Graham as Oa real monster ... far worse than the 1989 Executive Order it would replace. According to the consensus opinion of historians and FOIA experts who have reviewed the document for the (NCCPH), the new order violates the spirit if not the legislative language embodied in the Presidential Records Act and will usher in a new era of secrecy for presidential records.

"Historian Graham, who has long had an interest in the release of the Reagan Presidential papers, stated, OI am surprised by such broad overreaching by the Bush White House. They would reverse an act of Congress with an Executive Order...[and] would "implement" the PRA by gutting it through an executive decree. A spokesperson for the Public Citizen Litigation Group characterized the draft EO as Oblatantly unlawful top to bottom.¹ Steven Aftergood of the Federation of American Scientists, Project on Government Secrecy states, OWe are not talking about protecting national security information of properly classified documents that otherwise are exempt S this is a whole other claim and creates suspicion that once National Security, privacy, and other statutory restrictions are lifted, all that is left to protect is potential embarrassment.

American University historian Anna Nelson agrees that Othis Executive Order seeks to protect a wide variety of mere "confidential communications" that a sitting President would not like to see released to the public."

Note: The order will be the topic of a hearing tomorrow by the House Committee on Government Reform's Subcommittee on Government Efficiency, Financial Management, and Intergovernmental Relations. The chair is Rep. Stephen Horn of California¹s 38th Congressional District in Los Angeles County. Another member is Rep. Doug Ose of the 3d District in suburban Sacramento.

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Dissenting Senator Lists His Misgivings with Terrorism Bill (10/29/01)
Do all the quick summaries of the legislation still leave you in doubt about how civil liberties will be affected?

The following is excerpted from the comments of Senator Russ Feingold (D-Wisconsin), who alone in his house voted No on the anti-terrorism bill that was passed and then signed by President Bush last week. Feingold¹s remarks were made on the Senate floor on October 25. I have concluded that this bill still does not strike the right balance between empowering law enforcement and protecting civil liberties. But that does not mean that I oppose everything in the bill. Indeed many of its provisions are entirely reasonable, and I hope they will help law enforcement more effectively counter the threat of terrorism.

For example, it is entirely appropriate that with a warrant the FBI be able to seize voice mail messages as well as tap a phone. It is also reasonable, even necessary, to update the federal criminal offense relating to possession and use of biological weapons. It made sense to make sure that phone conversations carried over cables would not have more protection from surveillance than conversations carried over phone lines. And it made sense to stiffen penalties and lengthen or eliminate statutes of limitation for certain terrorist crimes.

There are other non-controversial provisions in the bill that I support ­ those to assist the victims of crime, to streamline the application process for public safety officers benefits and increase those benefits, to provide more funds to strengthen immigration controls at our Northern borders, to expedite the hiring of translators at the FBI, and many others.

In the end, however, my focus on this bill, as Chair of the Constitution Subcommittee of the Judiciary Committee in the Senate, was on those provisions that implicate our constitutional freedoms. And it was in reviewing those provisions that I came to feel that the Administration¹s demand for haste was inappropriate; indeed, it was dangerous. Our process in the Senate, as truncated as it was, did lead to the elimination or significant rewriting of a number of audacious proposals that I and many other members found objectionable.

For example, the original Administration proposal contained a provision that would have allowed the use in U.S. criminal proceedings against U.S. citizens of information obtained by foreign law enforcement agencies in wiretaps that would be illegal in this country. In other words, evidence obtained in an unconstitutional search overseas was to be allowed in a U.S. court.

Another provision would have broadened the criminal forfeiture laws to permit ­ prior to conviction ­ the freezing of assets entirely unrelated to an alleged crime. The Justice Department has wanted this authority for years, and Congress has never been willing to give it. For one thing, it touches on the right to counsel, since assets that are frozen cannot be used to pay a lawyer. The courts have almost uniformly rejected efforts to restrain assets before conviction unless they are assets gained in the alleged criminal enterprise. This proposal, in my view, was simply an effort on the part of the Department to take advantage of the emergency situation and get something that they¹ve wanted to get for a long time.

The foreign wiretap and criminal forfeiture provisions were dropped from the bill that we considered in the Senate. Other provisions were rewritten based on objections that I and others raised about them. For example, the original bill contained sweeping permission for the Attorney General to get copies of educational records without a court order. The final bill requires a court order and a certification by the Attorney General that he has reason to believe that the records contain information that is relevant to an investigation of terrorism.

So the bill before us is certainly improved from the bill that the Administration sent to us on September 19, and wanted us to pass on September 21. But again, in my judgment, it does not strike the right balance between empowering law enforcement and protecting constitutional freedoms. Let me take a moment to discuss some of the shortcomings of the bill.

First, the bill contains some very significant changes in criminal procedure that will apply to every federal criminal investigation in this country, not just those involving terrorism. One provision would greatly expand the circumstances in which law enforcement agencies can search homes and offices without notifying the owner prior to the search. The longstanding practice under the Fourth Amendment of serving a warrant prior to executing a search could be easily avoided in virtually every case, because the government would simply have to show that it has "reasonable cause to believe" that providing notice "may" "seriously jeopardize an investigation." This is a significant infringement on personal liberty.

Notice is a key element of Fourth Amendment protections. It allows a person to point out mistakes in a warrant and to make sure that a search is limited to the terms of a warrant. Just think about the possibility of the police showing up at your door with a warrant to search your house. You look at the warrant and say, "yes, that¹s my address, but the name on the warrant isn¹t me." And the police realize a mistake has been made and go away. If you¹re not home, and the police have received permission to do a "sneak and peak" search, they can come in your house, look around, and leave, and may never have to tell you.

Another very troubling provision has to do with the effort to combat computer crime. The bill allows law enforcement to monitor a computer with the permission of its owner or operator, without the need to get a warrant or show probable cause. That¹s fine in the case of a so-called "denial of service attack" or plain old computer hacking. A computer owner should be able to give the police permission to monitor communications coming from what amounts to a trespasser on the computer.

As drafted in the Senate bill, however, the provision might permit an employer to give permission to the police to monitor the e-mails of an employee who has used her computer at work to shop for Christmas gifts. Or someone who uses a computer at a library or at school and happens to go to a gambling or pornography site in violation of the Internet use policies of the library or the university might also be subjected to government surveillance ­ without probable cause and without any time limit. With this one provision, fourth amendment protections are potentially eliminated for a broad spectrum of electronic communications.

I am also very troubled by the broad expansion of government power under the Foreign Intelligence Surveillance Act, known as FISA. When Congress passed FISA in 1978 it granted to the executive branch the power to conduct surveillance in foreign intelligence investigations without meeting the rigorous probable cause standard under the Fourth Amendment that is required for criminal investigations. There is a lower threshold for obtaining a wiretap order from the FISA court because the FBI is not investigating a crime, it is investigating foreign intelligence activities. But the law currently requires that intelligence gathering be the primary purpose of the investigation in order for this lower standard to apply.

This bill changes that requirement. The government now will only have to show that intelligence is a "significant purpose" of the investigation. So even if the primary purpose is a criminal investigation, the heightened protections of the Fourth Amendment won¹t apply.

It seems obvious that with this lower standard, the FBI will try to use FISA as much as it can. And of course, with terrorism investigations that won¹t be difficult, because the terrorists are apparently sponsored or at least supported by foreign governments. This means that the fourth amendment rights will be significantly curtailed in many investigations of terrorist acts.

The significance of the breakdown of the distinction between intelligence and criminal investigations becomes apparent when you see the other expansions of government power under FISA in this bill. One provision that troubles me a great deal is a provision that permits the government under FISA to compel the production of records from any business regarding any person, if that information is sought in connection with an investigation of terrorism or espionage.

Now we¹re not talking here about travel records pertaining to a terrorist suspect, which we all can see can be highly relevant to an investigation of a terrorist plot. FISA already gives the FBI the power to get airline, train, hotel, car rental and other records of a suspect.

But under this bill, the government can compel the disclosure of the personal records of anyone ­ perhaps someone who worked with, or lived next door to, or went to school with, or sat on an airplane with, or has been seen in the company of, or whose phone number was called by -- the target of the investigation.

And under this new provisions all business records can be compelled, including those containing sensitive personal information like medical records from hospitals or doctors, or educational records, or records of what books someone has taken out of the library. This is an enormous expansion of authority, under a law that provides only minimal judicial supervision.

Under this provision, the government can apparently go on a fishing expedition and collect information on virtually anyone. All it has to allege in order to get an order for these records from the court is that the information is sought for an investigation of international terrorism or clandestine intelligence gathering. That¹s it. On that minimal showing in an ex parte application to a secret court, with no showing even that the information is relevant to the investigation, the government can lawfully compel a doctor or hospital to release medical records, or a library to release circulation records. This is a truly breathtaking expansion of police power.

Let me turn to a final area of real concern about this legislation, which I think brings us full circle to the cautions I expressed on the day after the attacks. There are two very troubling provisions dealing with our immigration laws in this bill.

First, the Administration¹s original proposal would have granted the Attorney General extraordinary powers to detain immigrants indefinitely, including legal permanent residents. The Attorney General could do so based on mere suspicion that the person is engaged in terrorism. I believe the Administration was really over-reaching here, and I am pleased that Senator Leahy was able to negotiate some protections. The Senate bill now requires the Attorney General to charge the immigrant within seven days with a criminal offense or immigration violation. In the event that the Attorney General does not charge the immigrant, the immigrant must be released.

While this protection is an improvement, the provision remains fundamentally flawed. Even with this seven-day charging requirement, the bill would nevertheless continue to permit the indefinite detention in two situations. First, immigrants who win their deportation cases could continue to be held if the Attorney General continues to have suspicions. Second, this provision creates a deep unfairness to immigrants who are found not to be deportable for terrorism but have an immigration status violation, such as overstaying a visa. If the immigration judge finds that they are eligible for relief from deportation, and therefore can stay in the country because, for example, they have longstanding family ties here, the Attorney General could continue to hold them.

Now, I am pleased that the final version of the legislation includes a few improvements over the bill that passed the Senate. In particular, the bill would require the Attorney General to review the detention decision every six months and would allow only the Attorney General or Deputy Attorney General, not lower level officials, to make that determination. While I am pleased these provisions are included in the bill, I believe it still falls short of meeting even basic constitutional standards of due process and fairness. The bill continues to allow the Attorney General to detain persons based on mere suspicion. Our system normally requires higher standards of proof for a deprivation of liberty. For example, deportation proceedings are subject to a clear and convincing evidence standard. Criminal convictions, of course, require proof beyond a reasonable doubt.

The bill also continues to deny detained persons a trial or hearing where the government would be required to prove that the person is, in fact, engaged in terrorist activity. This is unjust and inconsistent with the values our system of justice holds dearly.

Another provision in the bill that deeply troubles me allows the detention and deportation of people engaging in innocent associational activity. It would allow for the detention and deportation of individuals who provide lawful assistance to groups that are not even designated by the Secretary of State as terrorist organizations, but instead have engaged in vaguely defined "terrorist activity" sometime in the past. To avoid deportation, the immigrant is required to prove a negative: that he or she did not know, and should not have known, that the assistance would further terrorist activity.

This language creates a very real risk that truly innocent individuals could be deported for innocent associations with humanitarian or political groups that the government later chooses to regard as terrorist organizations. Groups that might fit this definition could include Operation Rescue, Greenpeace, and even the Northern Alliance fighting the Taliban in northern Afghanistan. This provision amounts to "guilt by association," which I believe violates the First Amendment.

And speaking of the First Amendment, under this bill, a lawful permanent resident who makes a controversial speech that the government deems to be supportive of terrorism might be barred from returning to his or her family after taking a trip abroad.

Despite assurances from the Administration at various points in this process that these provisions that implicate associational activity would be improved, there have been no changes in the bill on these points since it passed the Senate.

Now here¹s where my cautions in the aftermath of the terrorist attacks and my concern over the reach of the anti-terrorism bill come together. To the extent that the expansive new immigration powers that the bill grants to the Attorney General are subject to abuse, who do we think is most likely to bear the brunt of that abuse? It won¹t be immigrants from Ireland, it won¹t be immigrants from El Salvador or Nicaragua, it won¹t even be immigrants from Haiti or Africa. It will be immigrants from Arab, Muslim, and South Asian countries. In the wake of these terrible events, our government has been given vast new powers and they may fall most heavily on a minority of our population who already feel particularly acutely the pain of this disaster.

When concerns of this kind have been raised with the Administration and supporters of this bill they have told us, "don¹t worry, the FBI would never do that." I call on the Attorney General and the Justice Department to ensure that my fears are not borne out.

The anti-terrorism bill that we consider in the Senate today highlights the march of technology, and how that march cuts both for and against personal liberty. Justice Brandeis foresaw some of the future in a 1928 dissent, when he wrote:

"The progress of science in furnishing the Government with means of espionage is not likely to stop with wire-tapping. Ways may some day be developed by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home. . . Can it be that the Constitution affords no protection against such invasions of individual security?"

We must grant law enforcement the tools that it needs to stop this terrible threat. But we must give them only those extraordinary tools that they need and that relate specifically to the task at hand.

In the play, "A Man for All Seasons," Sir Thomas More questions the bounder Roper whether he would level the forest of English laws to punish the Devil. "What would you do?" More asks, "Cut a great road through the law to get after the Devil?" Roper affirms, "I¹d cut down every law in England to do that." To which More replies:

"And when the last law was down, and the Devil turned round on you ­ where would you hide, Roper, the laws all being flat? This country¹s planted thick with laws from coast to coast . . . and if you cut them down . . . d¹you really think you could stand upright in the winds that would blow then? Yes, I¹d give the Devil benefit of law, for my own safety¹s sake. "

We must maintain our vigilance to preserve our laws and our basic rights.

We in this body have a duty to analyze, to test, to weigh new laws that the zealous and often sincere advocates of security would suggest to us. This is what I have tried to do with this anti-terrorism bill. And that is why I will vote against this bill when the roll is called.

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Mercury News Sues Court for Withheld Case Documents (10/29/01)
The Santa Clara County Superior Court¹s restrictions on access to case information on file has led a daily newspaper to sue.

The San Jose Mercury News action against the court system, its manager and the presiding judge centers on a new access restriction that makes it harder to find and review computer-based records than was the case under the prior paper file regime.

David Yarnold, the paper’s executive editor, told the Associated Press that the court "has made it impossible for anyone -- a citizen, a lawyer or a reporter -- to easily search the history of a given case."

Formerly, anyone could use courthouse computers to browse a database summarizing cases, actions and motions listing all parties. But in February, in response to a Mercury News request for a copy of the database, Presiding Judge Richard Turrone and court Chief Executive Officer Kiri Torre said the database contained confidential information and refused to allow its copying for public consumption.

In August the court went further, reducing the electronic access even at the courthouse to a trickle -- the case name or number, legal parties involved and whether it has been decided -- again citing confidentiality as well as a new reason said to justify extraordinary restrictions until next summer: problems converting to a new information management system.

On Tuesday, October 23 the Mercury News filed suit in the U.S. District Court's Northern District in San Jose, contending there is no compelling reason under First Amendment law that access be denied. Yarnold explained that the object of the litigation was simply to "regain access to court dockets that existed before the county converted to an all-electronic system."

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U.S. Attorney General Ashcroft signals FOIA clampdown (10/22/01)
The Justice Department will defend any denial of information under the federal Freedom of Information Act that has a sound legal basis.

That is the gist of Attorney General John Ashcroft’s October 12 announcement reversing the policy of his predecessor, Janet Reno, which insisted that denial of access to information under FOIA must be not only legally defensible based on precedent but advisable because it was "reasonably foreseeable that disclosure would be harmful.

The statement reads:

Memorandum for Heads of all Federal Departments and Agencies

From: John Ashcroft, Attorney General

Subject: The Freedom of Information Act

As you know, the Department of Justice and this Administration are committed to full compliance with the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (2000). It is only through a well-informed citizenry that the leaders of our nation remain accountable to the governed and the American people can be assured that neither fraud nor government waste is concealed.

The Department of Justice and this Administration are equally committed to protecting other fundamental values that are held by our society. Among them are safeguarding our national security, enhancing the effectiveness of our law enforcement agencies, protecting sensitive business information and, not least, preserving personal privacy.

Our citizens have a strong interest as well in a government that is fully functional and efficient. Congress and the courts have long recognized that certain legal privileges ensure candid and complete agency deliberations without fear that they will be made public. Other privileges ensure that lawyers' deliberations and communications are kept private. No leader can operate effectively without confidential advice and counsel. Exemption 5 of the FOIA, 5 U.S.C. § 552(b)(5), incorporates these privileges and the sound policies underlying them.

I encourage your agency to carefully consider the protection of all such values and interests when making disclosure determinations under the FOIA. Any discretionary decision by your agency to disclose information protected under the FOIA should be made only after full and deliberate consideration of the institutional, commercial, and personal privacy interests that could be implicated by disclosure of the information.

In making these decisions, you should consult with the Department of Justice's Office of Information and Privacy when significant FOIA issues arise, as well as with our Civil Division on FOIA litigation matters. When you carefully consider FOIA requests and decide to withhold records, in whole or in part, you can be assured that the Department of Justice will defend your decisions unless they lack a sound legal basis or present an unwarranted risk of adverse impact on the ability of other agencies to protect other important records.

This memorandum supersedes the Department of Justice's FOIA Memorandum of October 4, 1993, and it likewise creates no substantive or procedural right enforceable at law.

An accompanying comment posted on the department’s FOIA Web site states:

A new FOIA policy statement traditionally has been issued by the Attorney General at the beginning of a new Administration. Such statements were issued in May 1977 by Attorney General Griffin B. Bell, in May 1981 by Attorney General William French Smith, and in October 1993 by Attorney General Janet Reno. The Ashcroft FOIA Memorandum continues that tradition and in so doing calls attention to the administration of the FOIA at the highest levels of all agencies.

Additionally, the Office of Information and Privacy (OIP) is disseminating this new FOIA policy memorandum to the principal administrative and legal FOIA contacts at all agencies, with the request that it be further disseminated as widely and expeditiously as possible through FOIA administrative channels within each agency. This dissemination should ensure that the memorandum reaches all FOIA personnel within each agency directly, in addition to through its distribution by each agency head.

OIP also will be both distributing and discussing the Ashcroft FOIA Memorandum at a FOIA Officers Conference to be held on October 18. A second topic to be discussed at this FOIA Officers Conference will be agency implementation of the electronic availability and annual reporting requirements of the Electronic Freedom of Information Act Amendments of 1996.

Lastly, a third topic that will be discussed at this FOIA Officers Conference is one that has become a subject of greatly increased significance since the horrific events of September 11. In light of those events, and the possibilities for further terrorist activity in their aftermath, federal agencies are concerned with the need to protect critical systems, facilities, stockpiles, and other assets from security breaches and harm -- and in some instances from their potential use as weapons of mass destruction in and of themselves. Such protection efforts, of course, must at the same time include the protection of any agency information that could enable someone to succeed in causing the feared harm.

Protection for such records or information, if requested under the FOIA, is available under Exemption 2 of the Act, 5 U.S.C. § 552(b)(2) (2000). Any agency assessment of, or statement regarding, the vulnerability of such a critical asset should be protected pursuant to Exemption 2. S Agencies should be sure to avail themselves of the full measure of Exemption 2's protection for their critical infrastructure information as they continue to gather more of it, and assess its heightened sensitivity, in the wake of the September 11 terrorist attacks.

As for the significance of the policy reversal, several observers with wide familiarity with various federal agencies’ use of FOIA had generally wary reactions.

Steven Aftergood of the Project on Government Secrecy of the Federation of American Scientists remarked, As with many of the Bush Administration's new restrictions on public information, the new policy is only peripherally related to the fight against terrorism. Rather, it appears to exploit the current circumstances to advance a predisposition toward official secrecy.

Michael Ravnitsky, speaking only for myself in a post on the FOI-L listserv to fellow students of FOIA practice, said:

The Reno standard was release technically exempt records if there is no articulable foreseeable harm -- except for certain b (3) statutory or judicial exemptions.

The new Ashcroft standard is, if you deny under an exemption, we will back you up with legal support. The unspoken corollary is that the Ashcroft team says we will help you deny records even if there is no foreseeable harm that could be caused by the release, such as in cases of simple embarrassment.

And I've run into certain agencies that deny in a sort of knee jerk reaction without having any sort of harm in mind when they do so. The SEC's withholding of most of their FOIA Manual at the initial denial stage is a good example.

In the shadow of the Ashcroft memo, look to be denied the mass of records being poured into internal agency INTRA-net sites.

So this is the kind of policy that will encourage more litigation if parties see records being denied for no good reason. I thought the Reno standard was rather efficient because it --in theory -- kept agencies from pursuing what I will call frivolous denials.

By speaking with several folks who participated in last week's briefings of government agency FOIA personnel, I ascertain that DOJ personnel did not provide to those FOIA staff in the trenches much additional clarification regarding the day to day implications of the Ashcroft memo. For this reason, I assume that either a) the DOJ trainers don't really know what the memo means [unlikely since Richard Huff at DOJ both directs the training staff and probably had substantial influence on the Ashcroft memo], or b) the full engagement of the Ashcroft memo will be directed toward higher level actions by FOIA Administrative Appeal authorities such as agency heads and agency general counsel [in my opinion: highly likely].

What we really need to worry about is the upcoming and undoubtedly draconian revision of the Executive Order on National Security Information that will include all of the goodies sought by various interested parties at DOJ and DOD. They want to eliminate ISCAP and ISOO [overall very successful], they want to eliminate Mandatory Declassification Review opportunities for citizens [overall very successful], and they want to protect a large body of non-classified data under the penumbra of classified information.

Rebecca Daugherty of the Reporters Committee for Freedom of the Press saw it this way:

The real effects of the Ashcroft memo will be, I think, on morale and on Exemption 5. It says to FOI officers and specialists not that they are doing a good job of upholding the FOI law when they give stuff out, but that if they can think of any way not to give out information that will stand up in court ­ and not lead to a losing precedent that might cause other records to be given out -- the government will go to any length to support them. Who could have any respect for a job like that?

As a more practical effect the memo will definitely reverse actions on Exemption 5 on internal memos which was, before the Reno memo, the exemption I heard most complaints about. That is an important loss because the instruction to release info gave us some insight into how government decisions were reached.

The Ashcroft memo will not have much effect on other exemptions. The Justice Department, even under the Reno memo, never regarded privacy or commercial protections as discretionary. They were wrong I think, but they were consistent.

Comment: The FOIA Exemption 5 referred to above is roughly equivalent to the deliberative process privilege so frequently used as an exemption from the California Public Records Act. The rationale is precisely to keep the paper trail created in a process of executive decision-making from reaching the public eye, because exposing it publicly would hamper the effectiveness of government.

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Court: Insurance Firms’ Data on Policies Is public (10/22/01)
Reports showing how many auto insurance policies a carrier sells in impoverished neighborhoods are not confidential as trade secrets.

So ruled the California Court of Appeal for the First District in its opinion filed October 17 in State Farm Mutual Automobile Insurance Co. v. Low, Case. No. A093193, (State_Farm_v_Low

Pursuant to Proposition 103 of 1988, the Insurance Code was amended to prohibit the department from approving auto insurance rates that are excessive, inadequate or unfairly discriminatory. Instead, rates must be based on the applicant driver’s safety record, number of miles driven annually, years of driving experience and other personal factors.

The Insurance Code was also amended by Prop 103 to state, "All information provided to the commissioner pursuant to this article shall be available for public inspection, and the provisions of Section 6254(d) of the Government Code and Section 1857.9 of the Insurance Code shall not apply thereto." The referenced sections act as exemptions from disclosure under the California Public Records Act (CPRA).

The case concerns information filed by State Farm with the State Department of Insurance as part of carrier’s Community Service Statement, an annual report required by the department to show, among other things, whether it is discriminating against low-income drivers.

The Community Service Statement reports, with respect to every ZIP Code in which a company sells insurance or maintains agents, such specifics as the number of offices, agents, claims adjusters, direct mail or telephone solicitations for new insurance business, agents and claims adjusters conversant in a language other than English, applications for each line of insurance, and applications for which the insurer declined to provide coverage, as well as the race or national origin and gender of each applicant for insurance.

Also reportable for each ZIP Code is, for an auto insurance company, the total number of insured vehicles and total earned premiums, as well as the total number of new, canceled and non-renewed policies, stated separately for various types of coverage. This information is called the Record A data.

These submitted reports enable the Insurance Commissioner to issue an annual "Report on Underserved Communities," designating by ZIP code the communities that the Commissioner finds underserved by the insurance industry, and also listing certain information for each insurance company doing business in the state, including the number and percentage of total exposures (insured cars) the company has in the underserved communities and in all other communities.

Late in 1999 State Farm sought an injunction to prevent a citizen, David Birnbaum, from disclosing Record A data that the department had inadvertently released to him under the CPRA from State Farm's 1998 community service statement. Then the Southern Christian Leadership Conference of Greater Los Angeles, Inc., and Consumers Union of U.S., Inc. intervened, seeking a court declaration that community service statements submitted by insurers under the regulation are subject to public inspection and not exempt from public disclosure.

State Farm argued that its Record A data is trade secret information and sought to restrain the Insurance Commissioner from releasing any information submitted under a claim of confidentiality or trade secret privilege.

Birnbaum got himself dismissed as a defendant, using an anti-SLAPP motion. The Insurance Commissioner, still defending the case, sought summary judgment to the effect that its disclosures were lawful because State Farm had waived any trade secret rights by filing the information instead of electing to take advantage of other regulations permitting submission of a "Strategic Plan for Underserved Communities" or "Evidence Demonstrating an Existing Presence in Underserved Communities" in lieu of a community service statement.

The commissioner also contended that, in any case, State Farm had no standing to sue to block disclosure. The intervening public interest groups took a more direct attack, also moving for summary judgment but argued both that the Record A data did not constitute a trade secret and, even if it did, disclosure was not only lawful but mandatory.

The trial court agreed with all defendants, concluding that the Record A data was a matter of public record and not a trade secret, in large part because State Farm had not shown the information to have any particular economic value.

The Court of Appeal agreed that the information is releasable as a public record. On the way to that decision the court concluded that the interveners’ argument that the CPRA does not give third parties standing to block release of a record pertaining to them was misdirected, since when the intervention was first allowed, State Farm was already in court seeking declaratory and injunctive relief on its trade secret claim and an information release already made. It was not jumping into a requester’s lawsuit for release of records under the CPRA.

The court found disclosure was mandated under the Insurance Code. In the words of Justice William D. Stein:

In plain language, the first clause of (Section 1861.07, added by Prop 103) proclaims an unconditional and unambiguous rule that all information submitted to the Commissioner under article 10 is available for public inspection. The second clause buttresses that general rule by adding that Government Code section 6254, subdivision (d) and Insurance Code section 1857.9, which would otherwise provide confidentiality for certain insurance data reports, shall not apply to such information. Government Code section 6254, subdivision (d), is sufficiently broad in scope to encompass trade secrets. When a statute announces a general rule and makes no exceptions to that rule, a court is ordinarily not authorized to create an exception or add a qualifying provision not intended by the lawmakers.

But even if the information were a trade secret, Stein said, that privilege would in this case be overcome by the public’s interest in disclosure:

For many years, consumer groups and others have accused the insurance industry of various practices that result in depriving racial minorities and other disadvantaged groups of access to affordable insuranceS The public disclosure of all the information in the community service statements, including where insurers are and are not selling policies, will unquestionably serve the public interest by illuminating the debate over these practices and clarifying the scope of the problem.

On the other hand, Justice Stein said, State Farm has not demonstrated a strong countervailing public interest in nondisclosure. State Farm asserts the hypothetical possibility that a competitor with access to its Record A data could use this information to target its customers in a regional marketing strategy, and it urges that the dominant public policy here is nondisclosure of trade secrets. However, the law is otherwise. Courts have consistently held that the Public Records Act expresses a policy generally favoring disclosure of public records, and the statutory exceptions are to be narrowly construed.

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Newspaper's Sheriff's Log Survey Finds 70% Incomplete (10/15/01)
In Glenn County, standard "police blotter" releases showing crimes, incidents and arrests provided all public information only infrequently, so the newspaper has temporarily stopped publishing the blotter.

So reports the Sacramento Valley Mirror in Artois, a twice-weekly newspaper that is now publishing results from a different kind of public records compliance audit ­ one attempting to answer the question, "How much law enforcement activity, measured by dispatched responses and officers’ writeups, is actually being revealed to the community in conformity with the California Public Records Act?"

That statute allows much secrecy as to the details of police investigations, but lists a menu of data basics presumed to be public absent specific harm to safety or police work. The list acts as a kind of who/where/what/when framework ostensibly supporting prompt press reporting of crimes, incidents and arrests.

Editor and publisher Tim Crews says his approach is to compare the total of electronically logged dispatches with the incidents reported in a summary released to the press.

The discrepancy is so great in the case of some agencies, he says, that he has temporarily ceased printing the activity summaries until the gaps can be explained and greatly reduced.

As explained in the current edition:

"The Valley Mirror requested and paid for (paper) copies of all calls for service received by in a 30-day period, some 908 pages. These calls were for the Glenn County Sheriff's Office, the Willows Police Department, the Orland Police Department, Glenn County Animal Control and miscellaneous medical and fire 911 calls.

"Of the 285 calls qualified as log items, 70 percent failed. That 70 percent failure rate is a major embarrassment to Glenn County Sheriff Bob Shadley, who has long promised by the book compliance with all aspects of law enforcement administration."

In the sheriff’s absence a department official told the Valley Mirror that part of the problem might be the anomalies in the evolving computer system. But Crews treats that notion skeptically. "While there is little doubt that continuing reprogramming may cause problems for some dispatchers, the police log entries are crafted from the CAD (computer aided dispatch) records and the officers' Form 101 basic reports." Crews told CFAC he has heard that some people processing the information in the department now and then tell others not to enter some reports in releasable form because "Tim doesn’t need to see that."

The Willows Police Department documentation showed an only slightly better completeness rate ­ about 32 percent ­ despite Crews’ recent litigation ending in an agreement to stop withholding information. But the Orland Police Department showed a remarkable 98 percent compliance rate, Crews noted.

Another irony is that Sheriff Shadley has in some ways been extraordinarily forthcoming with information, listing releasable information on the county’s Web site in a "daily news log" ( See_Daily_Log_Here

The question now appears to be whether that log is as inclusive as it should be, and if not, why not.

Crews said the audit work has only begun, and credits his new associate editor for public records, Scott Nelson, for the painstaking analysis.

"A newspaper's reporting can only be as sound as the information it gathers. Part of Mr. Nelson's mission is to help us ensure that the information we receive is free of mendacity and prevarication," Crews said.

Crews says that other news organizations interesting in having Nelson analyze the thoroughness of what they get from law enforcement agencies should contact him (Crews) at roguescribe@thegrid.net .

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Legislator’s records access audit shows schools lagging (10/8/01)
Senator Bill Leonard’s survey sought top executive salary data from cities and school districts in San Bernardino County.

Like a growing number of nonprofit organizations and newspapers in California and elsewhere, the veteran lawmaker decided to test compliance with the California Public Records Act. Unlike the other groups, however, he kept the test request simple. A volunteer intern asked all cities and school districts in the county to provide a copy of the employment contract of the city manager or superintendent respectively.

The eight cities all provided the information, and within 10 days, but the reaction of the 11 school districts was mixed. Only two, the intern reported, did not ask why the information was sought and produced it within 10 days. Six asked the intern, a college student, why he wanted the information, and he said he was doing a college research project.

One district, Colton Joint Unified, refused to provide a copy at all, until receiving a letter from Leonard’s office. The refusal was then laid to a misunderstanding.

Leonard explained his audit as a concern with public participation in public affairs. In comments to the Los Angeles Times he remarked, "Our government only functions with a well-informed citizenry. Having access to public records is central to that. I think everybody is better off knowing what their government is doing."

Leonard said, he thinks cities observed the law better than school districts because public records requests usually go though city clerks, who are trained in its requirements.

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Governor Signs Bill on "Customer-Friendly" CPRA Access (10/1/01)
As of next January 1, government agencies helping people make smart and effective public information requests will be not just nice ­ but the law.

AB 1014, signed by Governor Gray Davis late last week, adds the following provision to the California Public Records Act, as a new Government Code Section 6253.1: 6253.1.

"(a) When a member of the public requests to inspect a public record or obtain a copy of a public record, the public agency, in order to assist the member of the public make a focused and effective request that reasonably describes an identifiable record or records, shall do all of the following, to the extent reasonable under the circumstances:

(1) Assist the member of the public to identify records and information that are responsive to the request or to the purpose of the request, if stated.

(2) Describe the information technology and physical location in which the records exist.

(3) Provide suggestions for overcoming any practical basis for denying access to the records or information sought.

"(b) The requirements of paragraph (1) of subdivision (a) shall be deemed to have been satisfied if the public agency is unable to identify the requested information after making a reasonable effort to elicit additional clarifying information from the requester that will help identify the record or records.

"(c) The requirements of subdivision (a) are in addition to any action required of a public agency by Section 6253.

"(d) This section shall not apply to a request for public records if any of the following applies:

(1) The public agency makes available the requested records pursuant to Section 6253.

(2) The public agency determines that the request should be denied and bases that determination solely on an exemption listed in Section 6254."

Author Lou Papan (D-Millbrae) told legislators that the bill was a partial response to the public records disclosure compliance audit done by CFAC and the Society of Professional Journalists in the spring of 2000, which showed that even when requested to provide records clearly and affirmatively open to the public, a variety of local agencies in California gave citizens an initial turndown more than three times out of four.

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Court: Routine Traffic Stop Information Not Open to Public (10/1/01)
Documentation of even the most routine interactions between police and those they question can be kept confidential.

So ruled the California Supreme Court in its unanimous opinion, filed today, October 1, in Haynie v. Superior Court (County of Los Angeles), Case No. S089115.

In May, 2000, the California Court of Appeal concluded that when police stop a motorist out of misplaced suspicion triggered by an informant's tip, then release the driver and passengers after a brief confrontation, any records relating to the stop or what led to it are not exempt from disclosure as investigative documents. But, said the court, if the driver files a citizen's complaint about his treatment, the paperwork then generated is a different story.

Elgin Haynie, plaintiff in the case, had the misfortune of driving a van with three passengers shortly after Los Angeles County Sheriff's deputies on patrol heard a citizen's description of a similar vehicle in the neighborhood, into which several men with guns had just entered. One deputy later said he saw Haynie and his passengers behaving furtively, and pulled the van over.

The passengers were female, there were no weapons and the stop was obviously mistaken, but in the meantime Haynie became "argumentative," and was briefly handcuffed. He was then uncuffed and the officers left without further official attention, only to return shortly thereafter and find Haynie "attempting to inflict injury on his wrists by striking the pavement." The officers called for a supervisor and a paramedic and some photos were taken to establish that no serious injury had occurred.

That all occurred on July 1, 1999. Eleven days later, Haynie's lawyer contacted the department, identified the deputies in the incident, and sought a variety of paper records and tape recordings documenting the informant's tip, patrol car radio traffic, statements made at the stop, and even Haynie's later statements to the departmental investigator following up on his citizen's complaint.

The department denied the requests, characterizing the information sought as exempt as investigative records of a law enforcement agency, as relating to citizen complaints against as peace officer, or both. When Haynie sued, the county shifted its grounds to a combination of law enforcement investigation and pending litigation exemptions, dropping its reliance on the peace officer personnel file exemption. The trial court essentially upheld the county's position.

On appeal, the Second District agreed that the investigative exemption would apply to any records generated by Haynie's complaint after the incident, including a tape recording made of his debriefing by a sheriff's investigator.

But since there was no "concrete prospect of enforcement" involved in the van stop, any records pertaining to that incident before Haynie made his complaint would be available and not protected as part of an investigative file. Nor would the pending litigation exception apply, since no records created at the time of the stop were in anticipation of a lawsuit.

The Supreme Court, however, reversed, reaffirming two points it made several years ago and establishing a third for the first time.

First, records created by law enforcement agencies themselves for criminal operations purposes ­ even the records of complaints that trigger inquiries about possible criminal occurrences ­ are by definition exempt from disclosure whether there is any "concrete prospect of enforcement" or not. The only records that must relate to a matter having a "concrete prospect of enforcement" are those that are not exempt in themselves but may be conditionally exempt when "compiled" by a law enforcement agency as part of its investigation.

In short, if police have an active law enforcement interest in a matter, otherwise public records they accumulate as part of their investigation (or at least the copies held by police) may become exempt from disclosure pending completion of the enforcement action. But records created by police as part of their own investigative work are by definition exempt from disclosure, no matter how routine and whether or not there is a concrete prospect of enforcement.

Second, the list of data points that police agencies must normally disclose concerning crimes, incidents and arrests ­ the information described in Government Code Section 6254 (f), subdivisions (1) and (2), does not mean that the department’s records themselves must be open to inspection or copying. The right of access is to information from police records, not access to the records themselves.

The case reaffirms that the press and public have no nforceable right to view, listen to or copy such items as crime, incident or arrest reports, 911 tapes or recordings of police stops. Much information from these records must be provided in some form, but the form is a matter of the department’s discretion.

As to these first two points, Justice Marvin Baxter’s opinion for the court essentially restates, with some elaboration, conclusions first reached by the court in the 1993 case, Williams v. Superior Court, 5 Cal.4th 337.

The novel point established c