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2002

Newspaper sues for court administrative data (12/23/02)

Court: Civil service panels can't expose officers (12/10/02)

Court: D.A.'s rationale for not prosecuting is secret (12/9/02)

Burton renews pursuit of constitutional sunshine (12/3/02)

Homeland Security Act preempts California access (12/2/02)

 

Air traveler protesting unpublished law on photo ID (11/25/02)

Weekly wins access to judges' cellphone numbers (11/8/02)

Daily wins access to murder case search warrants (11/8/02)

Court unseals records on Winona Ryder's past (11/8/02)

A.G.: Counties can charge more for records copies (11/6/02)

Sunshine State lives up to its name in recent vote (11/5/02)

Gadfly's challenge gets ballot summary rewritten (10/28/02)

L.A. County reports progress on sunshine reform (10/28/02)

A neglected phenomenon: Security via disclosure (10/2d/02)

A.G.: No general law city funds for hosting lunches (10/23/02)

Government to Livermore Lab staff: Dummy up (10/21/02)

Sunshine ordinance leaders and college journalist
receive CFAC's Beacon Awards (10/18/02)

CFAC gives Gov. Gray Davis its 2002 Black Hole Award (10/14/02)

Union-Tribune renews fight against plea secrecy (10/14/02)

More to be disclosed about arbitrators, doctors (10/14/02)

Voter registration data access to be studied more (10/14/02)

E-mail expressly included in public records law (10/14/02)

Court: Census data not exempt from federal FOIA (10/8/02)

Davis signs bill on corporate records (10/7/02)

Birth and death indices (9/23/02)

Closed sessions on terrorist threats (9/23/02)

CPRA review, closed session leaks (9/16/02)

California ranked 3rd in "e-government" (9/16/02)

State policies on court e-records charted (9/16/02)

SCA 7 dies in Assembly despite wide support opinions (9/3/02)

Bill gives citizens right to AG opinions (9/3/02)

Bill would give AG an enforcement role (8/26/02)

Court: Agreement may override CPRA (8/26/02)

LA Times' Inland Valley Voice supports CFAC suit (8/20/02)

Assembly Republicans deny SCA 7 a hearing (8/20/02)

ANALYSIS: New rationales for old secrecy instincts (8/6/02)

Seized 'Birdman' manuscript to be sold (8/6/02)

CFAC: Release bids on water privatizing (7/29/02)

A.G.: Logging industry data disclosable (7/29/02)

Opposition to vital statistics bill growing (7/22/02)

Court: No records suits against requesters (7/15/02)

Child suicide cases continue in secrecy (7/15/02)

Dawning concept: Transparency works (7/15/02)

Looming concept: Secrecy comes first (7/15/02)

SCA 7 deadline looms while insurance industry moves to gut
the Sunshine Amendment (7/15/02)

Sunshine Amendment passes Senate 32-0 (7/1/02)

CPRA denials by state agencies sought (7/1/02)

CFAC opposes bills on vitals, SLAPPs (6/24/02)

SCA 7 passes out of second committee (6/24/02)

SCA 7 to be amended for 6/20 hearing (6/17/02)

Federal court file sealing challenged (6/17/02)

Long FOIA fight sheds light on Reagan (6/10/02)

Birth index bill gutted, to be reworked (6/10/02)

SCA 7 Passes First Committee, Faces Diverse Opposition (6/03/02)

Medical Board: Settlement Sunshine Due (6/03/02)

L.A. Supervisors Hear Sunshine Riposte (6/03/02)

Vital Statistics Bill Calls for Prior Restraint (6/03/02)

SCA 7 Passes First Committee, Faces Diverse Opposition (6/03/02)

CFAC's Francke Advises LA Supes on Sunshine Act(5/28/02)

Homeowners Threaten Suit Against Water Company (5/28/02)

Governor and Opponent Support SCA 7 Concept (5/20/02)

Newspaper Brings Suit to Obtain Cell Phone Records (5/20/02)

SCA 7 Set for First Hearing Next Tuesday (5/13/02)

Oakland Discipline Records Suit Stymied (5/13/02)

Bill on Vital Statistics Secrecy Worsens (5/6/02)

Congressman Leads Anti-Secrecy Charge (4/29/02)

Bill Would Require ID, Reason for Access (4/29/02)

Bill Would Extend Access Law to E-mail (4/29/02)

SCA 7's First Committee Hearing Delayed (4/22/02)

Sunshine Amendment Set For Hearing (4/15/02)

CFAC Opposes Bill on Sale of Indexes (4/15/02)

California Access Gets Low Grade (4/15/02)

Court: Tenant Eviction Record from Court Not Enough (4/8/02)

Ontario Releases Airport Study after CFAC Demand (4/1/02)

Bill Would Create Hyper-secrecy for "Public Safety" Data (4/1/02)

CFAC's Demand for Ontario Consultant Study Draws Rejection (3/18/02)

Bill Would End Charging Requesters for Suppressing Information (3/11/02)

California Congressman Quietly Rebuffs Ashcroft's FOIA Stance (3/11/02)

Three New Bills Would Reduce Access to Personal Information (3/4/02)

S.F. Chronicle Fighting for Access to Malpractice Settlements (3/4/02)

Bill Would Add Jail Guards to Protected Personnel List (3/4/02)

Court: Unsealing 'Trade Secrets' in Credit Card Case Was Proper (2/25/02)

California Common Cause Supports Constitutional Sunshine Bill (2/18/02)

Bill Looks to Creation of One Net for Crime, Terrorism Tracking (2/18/02)

Agency Lobbyists Air Concerns about Sunshine Amendment (2/11/02)

Latest on SCA 7 The Constitutional Sunshine Amendment Bill (2/04/02)

State Bar's Revised Rule Clarifies Whistleblower Policy (2/04/02)

Burton Asks Publishers' Help for SCA 7 (1/28/02)

CFAC Launches Website for Sunshine Constitutional Amendment (1/28/02)

Burton Introduces CFAC Sunshine Constitutional Amendment (1/28/02)

Medical Board Sets Forum on Reduced Doctor Disclosures (1/7/02)

Jailed Texas Writer Freed; Legislation May Follow (1/7/02)



Court: D.A.'s rationale for not prosecuting is secret

LOS ANGELES (12/9/02) -- A district attorney's conclusions as to why evidence is insufficient to support prosecuting a police officer are not open to public scrutiny.

 

The same goes for any decision not to prosecute, holds the California Court of Appeal for the Second District in its opinion in Rackauckas v. Superior Court, Case No. G030680.

 

The case was prompted by a public letter sent by an Orange County Deputy District Attorney to the Huntington Beach Police Department, announcing the conclusion that a D.A.'s investigation into two instances of alleged misconduct by Huntington Beach Police Officer Edmund Kennedy found "a lack of sufficient evidence to support a filing of criminal charges."

 

The Los Angeles Times requested all letters of this kind, and later narrowed the field to letters sent after the investigation was concluded. When this request was denied it sued for not only letters by "all records generated" by the district attorney's office concerning Officer Kennedy after July 19, 200, the date of the public letter to the department, which it characterized as the date at which the investigation had been completed.

 

In response, as noted by the court, the district attorney conceded that it had sent the department a non-public letter but claimed that it was

 

"exempt from disclosure under section 6254, subdivision (f) as part of its investigative file. The district attorney usually prepares a closing report to the presenting police agency regarding its conclusions '[w]hen we have completed our review of police misconduct cases. . . .' (The attorney author) declared that he prepared the nonpublic letter 'as part of' the investigation and that it contained 'my legal opinions, thoughts, impressions and conclusions. That document is part of the District Attorney's investigatory file regarding Officer Kennedy.' (His supervising attorney) declared that disclosure of the nonpublic letter would have a 'chilling effect' on future police misconduct investigations."

 

The Orange County Superior Court ordered release of the records, which the district attorney challenged before the Fourth District Court of Appeal. That court's opinion concludes that the "closing letter" is part of, not subsequent and distinct from, the exempt investigative documents under Government Code Section 6254, subdivision (f):

"The Times attempts to distinguish (prior case law finding law enforcement investigative records to be exempt from disclosure) by characterizing the undisclosed July 19 letter as a post-investigation record, presumably prepared after the district attorney decided not to prosecute.

"We follow the plain language of the statute, which contains no such distinction. As the (district attorney's) declarations establish, the undisclosed letter directly relates to a "definite and concrete" investigation of Officer Kennedy, and is exempt from disclosure on its face. Its author stated that he prepared the letter as part of the investigation to convey his 'legal opinions, thoughts, impressions and conclusions'...

"The undisclosed letter had no purpose other than to report (the author's) thoughts, opinions and conclusions. It properly (and exclusively) related to the investigation and legitimately belonged in the investigatory file. What other use could it serve? It remains exempt subject to the terms of the CPRA. If the Times wishes to redraft the language of the exemption, it should direct its efforts to the Legislature, not the judiciary."

The court also asserted several policy reasons why such "closing letters" should not be made public:

"Police investigations contain a vast amount of raw or half-baked data, gleaned from witnesses of varying degrees of reliability, veracity and bias. Much of it is hard to digest, and could prove ruinous to personal reputations, careers, or relationships if released to the general public in unvarnished form...

"One would hope that the investigators would feel free to candidly comment and communicate upon what they have learned through the investigations, without fear of the chilling effects of disclosure upon them or their sources...

"Candor is especially needed at the close of an unsuccessful or inconclusive investigation. A case, while promising, may not be strong enough to meet the burdens of proof beyond a reasonable doubt without additional corroborating evidence or more forthcoming witness cooperation. If anything, public policy encourages a frank and outspoken closing report unimpaired by a concern for appearances."

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Court: Civil service panels can't expose officers

SAN DIEGO (12/10/02) -- City and county civil service commissions may not, over the objection of a peace officer, disclose the officers' personnel records in open session.

 

So concludes the California Court of Appeal for the Fourth District in its opinion San Diego Police Officers' Association v. City of San Diego Civil Service Commission, Case No. D038685.

 

The court concludes that state law restrictions -- principally Penal Code Section 832.7 -- confining access to peace officer personnel files to a court-screened discovery process in civil or criminal litigation also deem the records "confidential" in all other contexts, including civil service proceedings.

 

The result is that the civil service commissions of both the city and county of San Diego must cease their practices of presenting material from officers' personnel records in public session over the officers' objections.

 

In reaching this result the court distinguished another case in which the personnel secrecy rule was held not to have been violated by a local agency's hearing procedures:

 

"County's reliance on San Francisco Police Officers' Assn. v. Superior Court (1988) 202 Cal.App.3d 183 is also misplaced. In that case, the San Francisco police officers' association challenged a rule permitting the individual who complained about a police officer's conduct to be present at the confidential investigation hearing and to have access to the decision and materials. In rejecting this challenge, the court emphasized that the investigation hearings conducted by the San Francisco commission are considered part of the factfinding process, and any records that are part of the peace officer's personnel file, or become part of the personnel file, are considered confidential and the complainant would not have access to these materials. This conclusion is fully consistent with our holding here."

 

The court also noted that it was not determining how its decision affected open meeting issues:

 

"We emphasize that our decision is limited to the relief sought in the petition, which is a declaration that section 832.8 personnel records are confidential in the context of disciplinary appeal hearings. To the extent that other issues were raised in the appellate briefs, most notably whether disciplinary appeal hearings must be closed, those issues are beyond the scope of this appellate decision... We conclude the allegations state a valid cause of action and provide the basis for declaratory relief. The nature and scope of any such declaratory relief is for the trial court in the first instance."

 

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Newspaper sues for court administrative data

SACRAMENTO (12/23/02) -- When a county's court system has its financial affairs administered by the county finance department, do they become open to scrutiny?

 

That is the central question in a petition to the California Court of Appeal for the Third District filed Friday, December 20 by counsel for the Sacramento Valley Mirror, a twice-weekly newspaper published in the Glenn County Community of Artois.

 

Last spring, prompted in part by curiosity over use of cell phones by the tiny (two-judge) superior court staff, Valley Mirror publisher Tim Crews also asked the county for "all claims and records of financial transactions for the operation of the Glenn County Courts in [the County's] possession for the years 1999 through 2001."

 

In jurisdictions as small as Glenn, the county does all financial housekeeping for the court system, and Crews believed that this fact triggered public access under the California Public Records Act (CPRA), which applies to county departments generally but not -- with a narrow exception -- to records of court administration.

 

After preliminary skirmishing, Crews took these issues to court in July, and an assigned visiting judge ordered access to the cell phone information but not to the court financial information in general. Judge William A. Skillman of Sierra County took the position that pursuant to the Trial Court Funding Act (TCFA), the shift from county to state funding of local court systems meant that the CPRA could not be used to get the information. As summarized in the pending petition:

 

"With respect to the denial of access, (Judge Skillman) stated in pertinent part that because, following the enactment of the TCFA of 1997, the 'county only minimally funds the court, the court and not the county should determine whether, when and how the court's financial records should be released.'

 

"(Judge Skillman) cited no exemption from the disclosure requirements of the CPRA, nor did he explain how the shift in court funding from the counties to the state, an entity equally subject to the CPRA, transformed public records into non-public records under the CPRA. Moreover, (Judge Skillman) failed to explain why the County as a public entity subject to the CPRA and, specifically, the County Director of Finance, who along with his staff manage and administer state and county funds through the county treasury, are not subject to the disclosure requirements of the CPRA.

 

"At most, (Judge Skillman) stated that under a contract between the County and Respondent Court, the County Financial Director was 'designated the Court's Financial Officer' when administering court funds and therefore the documents he uses are 'court records.'"

 

In the petition for an order directing access to the records, Valley Mirror counsel Duffy Carolan of Davis Wright Tremaine in San Francisco argues to the contrary on several grounds:

• if the county maintains and uses court information in providing the court with administrative services, that fact alone opens the material to public access under the CPRA;
• the county director of finance is not, in fact or in law, the court's financial officer;
• even if he were to some extent a court official, the role would be at most a dual one, since "it is simply not possible to be beholden solely to the courts when allocating between allowable and unallowable court costs. If the County Director of Finance mistakenly deems an expense allowable under the complicated statutory scheme governing allowable costs relating to the courts, then that mistake directly impacts the remaining County funds in the county treasury"; and
• in view of the foregoing, "if access under the CPRA is denied, then the public will never know whether the County Director of Finance and his staff are properly allocating between the various accounts in the county treasury based on the documents actually used to allocate the funds."
  
  

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Burton renews pursuit of constitutional sunshine
SACRAMENTO (12/3/02) -- Senate President pro Tem John Burton today announced he has reintroduced legislation to make open government a constitutional right.

 

SCA 1, the first constitutional amendment to be introduced in the newly opened 2003-2004 session of the legislature, mirrors a similar bill that passed the Senate earlier this year but was blocked in the Assembly.

"People have the right to know, but too often that right gets played around with until it becomes meaningless," the San Francisco Democrat said.

"This measure gives the public and the press the real access they deserve to government information, while at the same time preserving Californians' rights to privacy. I am introducing this measure as SCA 1 to reinforce what a priority this is."

SCA 7 would, if passed by a two thirds vote in both the Senate and Assembly, place on the 2004 statewide ballot for voter approval a proposed amendment to the California Constitution that would:

--provide that access to information concerning the conduct of the people's business is a fundamental and necessary right of every person in the state;

--provide that the people have a right to attend and be heard in meetings of public officials and to obtain copies of records associated with those meetings;

--maintain current privacy protections; and

require that if a government body requests to limit access to information it would have to prove that withholding the information is necessary to protect public safety or private property, to ensure the fair and effective administration of law or to preserve public funds and resources. In addition to providing proof of harm, the government body would have to show that the harm could not be averted by a reasonable alternative to withholding the information.

"We worked hard last year to remove opposition to this proposal, and will continue to work with those who have concerns," Burton said.

"But make no mistake, it's time for a sweeping change in how public access is treated, and that means putting strong protective language in the state constitution."

The California Newspaper Publishers Association and the California First Amendment Coalition are returning as sponsors of the measure, and have resumed talks with representatives of Attorney General Bill Lockyer and of various regulated business sectors in order to address remaining objections to the bill.


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Homeland Security Act preempts California access

WASHINGTON, D.C. (12/2/02) -- The new Homeland Security Act limits access not only under the federal FOIA but also under California's Public Records Act.

 

Embedded in the law creating the Department of Homeland Security is a controversial "Critical Infrastructure Information Act of 2002," inserted over the objections of a minority of Senators who protested how deeply it cut into the Freedom of Information Act.

 

Just how much difference this effect will make on Californians' use of the CPRA is unclear because of a variety of factors, including the degree to which private industries submit confidential business information to the Homeland Security Department and the degree to which such data are thereupon conveyed to state and local officials.

 

The industry sectors encompassed are very broad and include those subject to both federal and state regulation in the interests of public safety and consumer protection -- at least those in the telecommunications, energy, financial services, water, and transportation markets and possibly more.

 

A company would become subject to the secrecy provisions with respect to any of its "information not customarily in the public domain," including not only its physical and financial assets but also its protected hardware, software, network and other information technology that it "voluntarily submitted" to the Homeland Security Department, related to the security of these assets.

 

That security scope would include insights into a wide variety of present or possible vulnerabilities -- knowledge of which would be valuable not only to terrorists but to facility neighbors, consumers and investors -- that might be, so to speak, filed under Risks and What to Do about Them:

• "actual, potential, or threatened interference with, attack on, compromise of, or incapacitation of critical infrastructure or protected systems by either physical or computer-based attack or other similar conduct (including the misuse of or unauthorized access to all types of communications and data transmission systems) that violates Federal, State, or local law, harms interstate commerce of the United States, or threatens public health or safety;
• "the ability of any critical infrastructure or protected system to resist such interference, compromise, or incapacitation, including any planned or past assessment, projection, or estimate of the vulnerability of critical infrastructure or a protected system, including security testing, risk evaluation thereto, risk management planning, or risk audit; or
• "any planned or past operational problem or solution regarding critical infrastructure or protected systems, including repair, recovery, reconstruction, insurance, or continuity, to the extent it is related to such interference, compromise, or incapacitation."
  

If the company's submission of such information to the department were for "analysis, warning, interdependency study, recovery, reconstitution, or other informational purpose," then access to that information by either the public or even other government agencies for any purpose short of criminal prosecution would be severely limited.

 

In particular, says the new law, the information:

"shall be exempt from disclosure under section 552 of title 5, United States Code (commonly referred to as the Freedom of Information Act);
 
"shall not be subject to any agency rules or judicial doctrine regarding ex parte communications with a decision making official;
 
"shall not, without the written consent of the person or entity submitting such information, be used directly by such agency, any other Federal, State, or local authority, or any third party, in any civil action arising under Federal or State law if such information is submitted in good faith;
 
"shall not, without the written consent of the person or entity submitting such information, be used or disclosed by any officer or employee of the United States for purposes other than the purposes of this subtitle, except:

--in furtherance of an investigation or the prosecution of a criminal act; or when disclosure of the information would be

--to either House of Congress, or to the extent of matter within its jurisdiction, any committee or subcommittee thereof, any joint committee thereof or subcommittee of any such joint committee; or to the Comptroller General, or any authorized representative of the Comptroller General, in the course of the performance of the duties of the General Accounting Office.

"shall not, if provided to a State or local government or government agency - be made available pursuant to any State or local law requiring disclosure of information or records;otherwise be disclosed or distributed to any party by said State or local government or government agency without the written consent of the person or entity submitting such information; or be used other than for the purpose of protecting critical infrastructure or protected systems, or in furtherance of an investigation or the prosecution of a criminal act; and does not constitute a waiver of any applicable privilege or protection provided under law, such as trade secret protection.
 
In short, once the Homeland Security Department receives such information, submitted under a statement as perfunctory as, "This information is voluntarily submitted to the Federal Government in expectation of protection from disclosure as provided by the provisions of the Critical Infrastructure Information Act of 2002," the data can be transmitted to state or local agencies without becoming subject to public disclosure no matter what state law might otherwise provide. On the other hand, it is fairly clear that information in state or local files acquires the Homeland secrecy stamp only if it has been transmitted from the Homeland Security Department.

The law states:   "Nothing in this section shall be construed to limit or otherwise affect the ability of a State, local, or Federal Government entity, agency, or authority, or any third party, under applicable law, to obtain critical infrastructure information in a manner not covered by (the dissemination restrictions), including any information lawfully and properly disclosed generally or broadly to the public and to use such information in any manner permitted by law."   This distinction suggests that state and local agencies may need to develop a tagging procedure to designate information acquired from the department to which access is restricted under the new law, if the department itself has not already done so.

The law gives the department just 90 days from the date of enactment to come up with procedures for receiving, securing and storing such data, including mechanisms for labeling it to assure that state and local agencies that might share it understand the access restrictions and what data they apply to.   Another headache for the embryonic department is one already hinted at by the vagueness of the color-coded alerts issued by its predecessor argency: how to issue useful alerts without disclosing too much, when "too much" now may include a range of specifics that might make the significance of a warning much clearer:

"The Federal Government may provide advisories, alerts, and warnings to relevant companies, targeted sectors, other governmental entities, or the general public regarding potential threats to critical infrastructure as appropriate. In issuing a warning, the Federal Government shall take appropriate actions to protect from disclosure -

• the source of any voluntarily submitted critical infrastructure information that forms the basis for the warning; or
• information that is proprietary, business sensitive, relates specifically to the submitting person or entity, or is otherwise not appropriately in the public domain."
  

There are no stated penalties for state or local employees who disclose such information contrary to law, but their federal counterparts are exposed to criminal prosecution for deliberately doing so:

"Whoever, being an officer or employee of the United States or of any department or agency thereof, knowingly publishes, divulges, discloses, or makes known in any manner or to any extent not authorized by law, any critical infrastructure information protected from disclosure by this subtitle coming to him in the course of this employment or official duties or by reason of any examination or investigation made by, or return, report, or record made to or filed with, such department or agency or officer or employee thereof, shall be fined under title 18 of the United States Code, imprisoned not more than 1 year, or both, and shall be removed from office or employment."

   Comment: While the scope of the affected information could be vast, the secrecy effect on the California Public Records Act is not likely to be novel. That statute already exempts from disclosure any information made confidential by independent state or federal law. But otherwise, how much vital corporate information has been paradoxically lost to Americans in the pursuit of security, and whether the tradeoff has been worth it, may take years to begin to calculate.

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Air traveler protesting unpublished law on photo ID

SAN FRANCISCO (11/25/02) What law, asks John Gilmore, requires travelers to produce photo identification as a precondition to boarding a commercial aircraft?

 

He's asking hard -- suing Attorney General John Ashcroft, a cluster of federal transportation regulators and two airlines in federal court -- and demanding that they disclose the government rules that are said to "require" photo ID display for plane boarding, or cease the demand, or both.

 

Gilmore, a Silicon Valley businessman, civil libertarian, and philanthropist who's been protesting the practice since the Clinton Administration, suspects that there is no federal requirement that ID be produced -- only that it be asked for -- and that other, undisclosed governmental and business reasons exist for airlines' treating the display of ID as a legal prerequisite to boarding.

 

Gilmore says he has just as much concern for safe air travel as anyone else, but notes how easy it is, especially for genuine terrorists, to counterfeit even the most convincing photo identification.

 

"People in the US have a right to travel and associate without being monitored or stopped by their government, unless they are actually suspected or convicted of a crime, and unless that suspicion is reasonable," he notes on his website explaining the suit.

"Clearly it is not reasonable to suspect every American of being a criminal bent on hijacking an airplane.  There is no evidence against the vast majority of Americans, and a multitude of evidence that most people harbor no desire or intent to hijack airplanes.  Yet they are being identified, tracked, and searched nevertheless.  This policy violates decades and centuries of court decisions about the rights of innocent Americans.  The mere demand for an ID is a search, which the Fourth Amendment protects us from.

"Also, the ID requirement is not part of any law passed by Congress, or any regulation published by the Executive Branch.  Yet somehow it is being imposed on every traveler.  The USSR was full of "secret" laws and directives, which abrogated the fundamental rights that had been written in the published laws and constitution.  I believe that a law which the government is unwilling to publish cannot be enforced, and there are many lawyers who agree with me."

His goals in taking the matter to court, he says, are:

• "that I and everyone else in America will once again be able to travel without being forced to identify themselves.
• "to prevent the government from imposing secret "decrees" on Americans without actually publishing them as laws or regulations.
• "that by succeeding, I'll help redirect government anti-terrorism efforts away from 'feel-good' measures that don't actually help, such as ID checks, religious or cultural profiles, and confiscation of tweezers, into measures that are more likely to protect us."

Gilmore describes himself as "the fifth employee of Sun Microsystems, an early author of open source software, and co-creator of the Electronic Frontier Foundation, the Cypherpunks, the DES Cracker, and the Internet's 'alt' newsgroups."

On November 13 and 15 the federal officials and Southwest Airlines, respectively, moved to dismiss the case. Gilmore says he will be filing his reply by the end of the month.


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A.G.: Counties can charge more for records copies
SACRAMENTO (11/6/02) Counties may charge more than just the direct costs of duplication for providing copies of documents under the California Public Records Act.   So concludes an opinion (No. 01-605) issued by Attorney General Bill Lockyer's office, interpreting a statute that allows counties to recover indirect costs, by setting an average fee or otherwise reflecting "the amount reasonably necessary to recover the cost of providing any product or service" (Government Code Section 54985).  

Providing copies of public records pursuant to the CPRA is arguably a legal duty rather than a "service," and that was the argument the opinion by Deputy Attorney General Marjorie E. Cox, which treats the document copy as a "product," and also notes that the Legislature exempted, in Section 54985 itself, only a short list of specified public documents from the indirect cost fee authority.  

The CPRA limits the amount chargeable to copies of records to either a "statutory fee" if any, or otherwise the "direct costs of duplication." The first phrase has been interpreted to mean either a monetary amount set the Legislature or the result of an administrative fee-setting authority granted by the Legislature, and the opinion considers that Section 54985 is an example of such legislation.  

On the other hand, the opinion notes two limiting conditions. First, fees chargeable by counties under Section 54985 are limited to "the amount reasonably necessary to recover the costs of providing" the copy, and that statute allows "the county auditor to conduct a study and to determine whether the fee or charge is reasonable" if the reasonableness of a fee increased by the county board of supervisors is disputed. Second, fees in any amount can be charged only to those who obtain copies; "a 'reasonably necessary' fee for a copy of a public record would have no effect upon the public' s right of access to and inspection of public records free of charge."        

     Comment: A third limit on arbitrary fee-setting under this scheme is that Section 54986 requires, for any fee established after 1983, a formal procedure involving a hearing and ordinance adoption or amendment by the board of supervisors:

"54986. (a) Prior to either approving an increase in an existing fee or charge or initially imposing a new fee or charge pursuant to Section 54985, the board of supervisors shall hold at least one public meeting, at which oral or written presentations may be made, as part of a regularly scheduled meeting. Notice of the time and place of the meeting, including a general explanation of the matter to be considered, and a statement that the data required by this section is available, shall be mailed at least 14 days prior to the meeting to any interested party who files a written request with the clerk of the board of supervisors for mailed notice of the meeting on new or increased fees or charges. Any written request for such mailed notices shall be valid for one year from the date on which it is filed unless a renewal request is filed. Renewal requests for such mailed notices shall be filed on or before April 1st of each year. The board of supervisors may establish a reasonable annual charge for sending those notices based on the estimated cost of providing that service. At least 10 days prior to the meeting, the board of supervisors shall make available to the public data indicating the amount of cost, or estimated cost, required to provide the product or service or the cost of enforcing any regulation for which the fee or charge is levied and the revenue sources anticipated to provide the product or service or the cost of enforcing any regulation, including general fund revenues.
(b) Any action by a board of supervisors to levy a new fee or charge or to approve an increase in an existing fee or charge pursuant to Section 54985 shall be taken only by ordinance."

  Journalists may well encounter the effects of Section 54986 when they seek copies of autopsy reports. Los Angeles County, for example, reportedly charges a flat $74 for them, said to be justified as an average.


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Weekly wins access to judges' cellphone numbers
WILLOWS (11/8/02) Glenn County handles cell phone bill payments for the courts and therefore must release names and numbers of judges issued the devices.   So concluded Superior Court Judge William Skillman, assigned from Sierra County, in a case brought by Sacramento Valley Mirror editor and publisher Tim Crews.  

Early this year Crews wanted to know which court employees had been issued cell phones, and what the numbers were to call them -- information which, regarding other county employees, he had already published for general information value.   But the court administration balked, taking the position that such information was not accessible because the judicial branch is not subject to the California Public Records Act.  

On the other hand, Crews argued, the court officials' Nextel contract was administered by the county finance department, which paid the bills. It was that department he asked for the data, and that department was subject to the CPRA.   When Crews, represented by Duffy Carolan of Davis Wright Tremaine in San Francisco, sued to get the information, he also complained of foot-dragging of various kinds, itemized in his own story in the current Valley Mirror. Judge Skillman agreed that the county had violated the law in:

• pressuring Crews to reveal what he planned to do with the information;
• requiring him to put all records access requests in writing; and
• taking months even to make a "determination" as to whether it considered the information publicly accessible, instead of the 10 days (sometimes extended to 14 more days) to do so.

Crews, who was also awarded attorney's fees for the effort, says in his report of the case that the issue was far more than just a few phone numbers:   "Although The Mirror prevailed, great damage has been done. The county's defiant attitude has made getting records much more difficult and has had the impact of slowing or stopping legitimate news stories. The county's attitude has also prejudiced the public on the matter of what it is entitled to see and know."
     Comment: Crews and Carolan are members of the board of directors of the California First Amendment Coalition.


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Daily wins access to murder case search warrants
BAKERSFIELD (10/30/02) A judge unsealed search documents in a case where a former district attorney's investigator is charged with murdering an assistant DA.   Kern County Superior Court Judge Charles P. McNutt had earlier sealed, with no hearing, six search warrants and related documents in the investigation, and sealed his sealing order also.  

One of the searches was conducted at the home of Chris Hillis, the suspect in the murder of Assistant District Attorney Stephen M. Tauzer. The brutal slaying, investigators believe, was linked to Tauzer's relationship with Hillis' adult son Lance, who died in an auto accident August 7 in El Dorado County, where he was undergoing drug rehabilitation.  

According to a story by Robert Price in the Bakersfield Californian, which was preparing to sue to force unsealing of the records, "Chris Hillis had disagreements with Tauzer over Tauzer's involvement with Lance Hillis."

"Tauzer stepped in to gain leniency for Lance Hillis in at least two criminal cases. Chris Hillis wanted his son -- who had been caught using drugs numerous times while on probation -- sentenced to jail, and the Kern County Probation Department concurred in court.

"But Tauzer asked Superior Court Judge Lee Felice to order more drug treatment for the young man, who gave Tauzer's address as his own at the time. Felice ruled in favor of Tauzer's request, sentencing the younger Hillis to a treatment center."

It was the Attorney General's office, which is handling prosecution of the case because of the close involvement of the Kern District Attorney's office, that asked Judge McNutt to seal the records on October 22, when Hillis was arrested, and that decided to ask them to be unsealed when the newspaper protested. A hearing had been set for Friday, November 8 on the Californian's petition to have the documents unsealed.

Price's story quotes Thomas Burke of Davis Wright Tremaine in San Francisco, the newspaper's attorney:

"It is our hope that the attorney general's decision .... is also a sign that the veil of secrecy that has been placed over this case is being lifted. If not, I'm confident The Bakersfield Californian will be back in court."

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Court unseals records on Winona Ryder's past
LOS ANGELES (11/8/02) -- The judge presiding in Winona Ryder's shoplifting trial suppressed evidence that she had been similarly suspected three times before.   As reported by Linda Deutsch of the Associated Press, Superior Court Judge Elden Fox denied a prosecutor's attempt to introduce evidence of three prior occasions when the actress had been stopped by security guards when exiting upmarket clothing stores in Manhattan and Beverly Hills with apparel she had not purchased.  

The incidents in 2000 and 2001 would undermine any defense argument that Ryder's walking off with more than $5,500 in merchandise from Saks Fifth Avenue in Beverly Hills last year was a case of misunderstanding, Deputy District Attorney Ann Rundle told the judge.   But Fox ruled out introduction of the materials, including two store videotapes Rundle said were similar to the one in the current case, on grounds that presenting them to the jury would prove less than they would cause prejudice to Ryder's presumption of innocence.  

The evidentiary clash was disclosed after the trial when Fox released transcripts of the closed hearings concerning the material, under an order obtained from the California Court of Appeal, secured by the Associated Press, the Los Angeles Times and the Los Angeles Daily Journal.   Ryder is set to be sentenced December 6, at which point the probation officer's report and recommendation will be considered and will be accessible to the public for 90 days. But, according to a report by Martha Groves in the Los Angeles Times, the original copy of that report has already turned up missing from a locked file cabinet at the Probation Department's office at the Santa Monica courthouse. As the story notes:  

"The report covers such information as marital and financial status, prior arrests, medical history, 'facts of the offense' and the Probation Department's sentencing recommendation."

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Sunshine State lives up to its name in recent vote
TALAHASSEE (11/5/02) -- California sponsors of SCA7 may have missed the boat this year, but constitutional protection for open government is back in business in Florida.   Had the California measure, sponsored by the California First Amendment Coalition and the California Newspaper Publishers Association, been approved by the Senate and Assembly in two thirds votes by late June, it would have appeared on the November 5 ballot for voter reaction. That did not occur, and supporters hope that a re-launched bill in January will gain passage and be on the next statewide ballot in 2004.  

But meanwhile, reports the Brechner Center for Freedom of Information in Florida, that state's voters went to the polls last week and solidly backed reforms to their unparalleled constitutional provisions for open meetings and records.   Sandra F. Chance, director of the center, told colleagues nationwide in a November 6 e-mail:

"In a landslide victory for open government, Florida voters overwhelmingly approved an amendment to the state's Open Meeting and Open Records Constitutional provision in yesterday's election. Almost 3.5 million voters approved the new amendment which makes it more difficult for the state's legislators to pass new exemptions to Florida's government-in-the-sunshine laws. New exemptions must now pass by a two-thirds majority of the legislature, rather than by simple majority.

"The amendment received 76.5 percent of the vote.

"This is a major victory in a state where our legislators seem to have forgotten the voters' commitment to open government. In addition, the measure was opposed by the powerful Florida Chamber of Commerce. Support for the Amendment was spearheaded by the newly formed Florida Sunshine Coalition."


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A neglected phenomenon: Security via disclosure
WASHINGTON, D.C. (10/25/02) The end of the serial sniper hunt points up the role played by disclosure of government information in support of true safety and security.

So notes one full-time critic of official cryptomania, Steven Aftergood, in his weekly e-mail bulletin, Secrecy News.

 

Aftergood, who heads the Project on Government Secrecy of the Federation of American Scientists, notes in a bulletin article , "Not only did public access to official information enable an alert trucker to identify the fugitives' vehicle, but it was apparently a 'leak' that made the key difference."

 

The brief article goes on to remark the dawning insight (if not consensus) that in matters of national security as well, much information gathered by intelligence agencies is a source of power only to the extent that it is widely available to the governed as well as the governors.

 

    Comment: Aftergood's point sheds light on the hazards of what might be thought of as the Old Paradigm, in which the government seldom if ever shares certain "investigative" or "intelligence" information with the public -- because to do so would inform the enemies of law, order, justice and public safety, as well as compromising "resources and methods," the exclusive possession of which is all that keeps the agency in business. Contrast that with the advantages of what may be a New Paradigm, in which a massively wired public may be trusted to process and use information in its own defense far more efficiently than the piling up of one more secret and bureaucratically turf-jealous apparat upon another. The serial sniper defendants were literally caught napping by a fellow citizen awake to the right information at the right time. Is it just possible that "homeland security" is not likely to be the product of a new bloated federal institution but instead the byproduct of more, not less, trust of the people whose homes are said to be in peril? But what government official will dare to say to the public, "If you knew what we know...you'd be safer"?

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A.G.: No general law city funds for hosting lunches

SACRAMENTO (10/23/02) A general law city's public funds may not be spent to reimburse its officials for wining and dining non-officials, even on public business.

 

Or, to put it as does the recently published opinion from Attorney General Bill Lockyer's office (No. 02-711),

 

"Public funds of a general law city may not be expended to reimburse city officials for their expenses in purchasing meals for third parties, such as constituents, legislators and private business owners, at meetings held to discuss legislation or other matters of benefit to the city. If the charter so authorizes, public funds of a charter city may be expended for such purposes."

 

This conclusion is relevant to open government issues because at least one general law city -- Claremont -- refused, when last asked, to disclose whom the city manager has hosted to restaurant meals charged against his official credit card. The city's position was that this information is exempt from disclosure under the California Public Records Act, because it would hamper the "deliberative process."

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Gadfly's challenge gets ballot summary rewritten

LAWNDALE (10/28/02) -- Persistent city council watchdog Fred Siegel persuaded a court to rewrite a misleading summary of a ballot proposition on eminent domain.

 

As reported in today's Los Angeles Times, Superior Court Judge David Yaffe agreed with Siegal that the summary for Measure N on the November 5 ballot did not give voters adequate and relevant information about what they were being asked to approve.

 

The original wording was:

 

"To provide the ability to create local jobs; attract business; generate revenue to repair streets, potholes; expand anti-drug and gang programs; improve parks, libraries, senior services without increasing taxes; shall the City Council be directed to amend the General Plan and shall Ordinance No. 920-02 be adopted repealing the municipal code chapter 2.74 to allow use of eminent domain to eliminate blight in commercial and industrial (not residential) zones only within the redevelopment project area?"

Judge Jaffe's more illuminating, but less tendentious version:

"(1) Shall Ordinance No. 920-02 be adopted to do the following: repeal in its entirety Chapter 2.74 of the Lawndale Municipal Code, which prohibits the redevelopment agency from using its power of eminent domain to acquire property which is zoned for residential purposes or developed with residential structures of 4 units or less? And (2) Shall the City Council be directed to amend the General Plan to permit the use of eminent domain to eliminate blight only in commercial and industrial, but not residential zones, within the redevelopment project area?"

The article shows how Siegel came to resist the eminent domain measure, as one of many points of resistance he has maintained as a close monitor of city council activity over the years.

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L.A. County reports progress on sunshine reform

LOS ANGELES (10/28/02) -- Los Angeles County government is making definite steps toward greater transparency in terms of open meetings and records, it says.

 

Chief Administrative Officer David E. Janssen, in an October 22 report to the board of supervisors, noted:

 

"The Board has taken numerous actions this year to further open the government process to make it easier for members of the public to understand and be aware of actions that may impact them. At its July 16, 2002 meeting, the Board instructed my office to review proposals that had been implemented regarding open meetings, assess how the policies are working and suggest if any changes are necessary."

 

Janssen's report covers progress to date on:

• posting of departmental communications to the board on the Internet;
• conforming to the Brown Act any meeting of deputies for three or more supervisors, at least concerning topics to be presented to the board within 30 days;
• ensuring that departments respond to public records requests in conformity with a countywide policy;
• posting, within 24 hours, of board meeting minutes and video segments;
• placing a video monitor of board meetings for viewing by overflow crowds in the lobby;
• providing video feeds to allow live broadcasting of board meetings; and
• posting backup materials for pending meeting agendas on the board's Web site.

 

Janssen also recommends reporting the roll call vote of each non-consent agenda item after it is taken, calling out the agenda number and identifying board members who cast ayes, nays and abstentions; and requiring the announcement of actions taken during closed-door sessions, not only in the statement of proceedings, but also on the next board agenda.

 

Karen Ocamb, recent recipient of CFAC's Beacon Award for her leadership in organizing and representing a Los Angeles County Sunshine Coaltion, thanked county officials for their work to date, but noted some unfinished business:

"I see that the Board is trying to comply. You've improved detail on board agendas on closed session litigation discussions by adding names and the case numbers. Also--when there was a mistake--the Public Information Officer sent out an immediate correction the next day with no attempt at cover-up - though it did indicate that there's still a bit of unfamiliarity with open meeting procedures.

"But problems remain.

• This CAO report was not posted online under the agenda item as a supporting document.
• While the executive office will grant access to records of claims against the county, you can only get a copy if you already know the claimants name. Why is the county database of all county claims not made available to the public?
• There is no master list of county contracts available to the public - and there should be. How else can the public monitor compliance with, say, the living wage and other laws? Or how a private company is spending public money?
• Just as there is no central information office to handle public records complaints, there is no central number to find information about lawsuits. And then, if you find out the name of the attorney, what kind of information you get depends on the kindness of the county employee.

"The biggest problem - from my perspective - is that it has been six months since you ordered implementation - and while the CAO's report looks promising - it still mostly offers FUTURE implementation - with NO unformity, NO accountability, and NO consequences for failing to comply. I would imagine that you are sick of this as well.

"Please note that the CAO report says, 'Absent complaints, we assume the public is not encountering difficulties in getting copies of public documents.'

"This is an incorrect assumption. For instance - while looking for THIS report, I went to the Board Agenda. Then I found the 'Reports' button under the Executive Office. I have Adobe (meaning Acrobat Reader) but was unable to open the documents. It didn't occur to me to go to the County's website - and I know a little more about this than the general public.

"On behalf of the Coalition - I strongly urge you to adopt an ordinance that includes employee orientation, training of administrators, accountability, and enforcement. I also request that you create an ombudsperson - perhaps the person who wrote this report - with two subordinates, one of whom speaks Spanish and the other, Chinese. It is terrible that public documents are basically English-only. How many of your constituents are therefore denied their rights?

"The ombudsperson would also be able to help non-profits - such as the HIV/AIDS group Amassi, which spoke before you on another matter - find information about RFPs.

"I suggest - as a way to handle this - you find and train current employees. You can then make arrangements with existing contractors to translate and assist."


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E-mail expressly included in public records law

SACRAMENTO (10/14/02) -- A bill signed by Governor Gray Davis on September 26 includes e-mail messages as "records" under state freedom of information law.

 

AB 1962 by Assemblyman Dennis Hollingsworth (R-Temecula) defines "transmitting by electronic mail or facsimile" as constituting a "writing" under the Evidence Code and therefore a "record" for purposes of the California Public Records Act.

 

The bill also expressly includes fax documents and photocopies, and as noted in the most thorough discussion of the measure in the bill analysis from the Senate Judiciary Committee,

"The new definition of 'writing' would include photocopies of any document (as differentiated from a photostated or photographed copy, which use different technologies), a document created in a word processor or computer and a print out of that document, and a computer print out of personnel records kept in the magnetic tape of a hard drive inside a networked computer. While it is not obvious even from this proposed definition, a 'writing' would also include a CD and a DVD."

  Comment: There has not been extraordinary controversy over whether e-mail is subject to the Public Records Act, but just enough confusion to lead some public agencies to permit their servers to be purged of unsaved messages after a relatively short period -- a destruction routine at odds with Government Code Section 6200, which makes it a crime for the custodian of a public record to "remove" or "destroy" it. This practice led attorney Richard D. Ackerman, of the U.S. Justice Foundation, to sue the City of Corona in 1999, as noted in an earlier FLASH report, and then to persuade Assemblyman Hollingsworth to introduce AB 1962.

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Sunshine ordinance leaders and college journalist receive CFAC's Beacon Awards

SAN JOSE (10/18/02) -- The California First Amendment Coalition presented its Beacon Award today to two people leading the campaign for local sunshine ordinances and a community college journalist who demanded her student government association follow open government laws.

 

Bruce Brugmann, editor and publisher of the San Francisco Bay Guardian, was cited for his own program of "sunshine" awards to local citizens, his newspaper's annual freedom of information issue in mid-March, and his leadership in lobbying for the adoption of the local sunshine ordinance, the 1994 major revisions of the Ralph M. Brown Act and the current drive for a constitutional amendment supporting open government. See Brugmann Beacon citation

 

The award, intended to salute extraordinary conduct advancing, defending or using freedom of information or expression, was presented to three recipients after lunch at OpenGov02, CFAC's annual conference held this year at San Jose State University. Brugmann's award was presented by San Mateo Superior Court Judge Quentin Kopp, who as a State Senator carried the 1994 Brown Act revisions bill.

 

Kopp, who has known Brugmann for more than three decades, noted that he was also one of the small group of journalists that founded CFAC in 1988.

 

CFAC board member Barbara Blinderman also presented a Beacon Award to Karen Ocamb, a freelance journalist who in the past year became organizer and lead spokesperson for the Los Angeles County Sunshine Committee. That group has been working to persuade the most powerful local government body in the state -- the Los Angeles Board of Supervisors -- to adopt its own sunshine ordinance.

 

Ocamb said she was accepting the award on behalf of the journalists and others active in the Los Angeles Sunshine Coalition, a subsidiary of the LA Press Club. See Ocamb Beacon citation

 

CFAC Executive Director Kent Pollock presented a Beacon Award to Hilda Delgado, an East Los Angeles Community College journalist, whose efforts to obtain agendas and minutes of the college's Associated Student Union were met with refusals from ASU officers. She contacted the LA District Attorney's Office, the California Newspaper Publishers Association and CFAC for assistance.

 

When she was finished, the records were released and the student officer that had refused to release the records was impeached.

 

"I have been teaching students about the Brown Act and FOI for 29 years now," said her journalism advisor and longtime CFAC member Jean Stapleton. "Many students understand it well enough to know and be angry when the law is violated. A few have filed FOI requests. But I have never known a student to be so thorough in learning the law and so tenacious in applying it as Hilda Delgado." See Delgado Beacon citation

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Government to Livermore Lab staff: Dummy up

LIVERMORE (10/21/02) In the late '70s the government tried to gag The Progressive. Now it wants its own nuclear physicists and engineers to keep mum on Iraq.

 

As reported in the Secrecy News bulletin of the Federation of American Scientists for October 11:

"The first time that the U.S. government ever imposed prior restraint on a U.S. publication was in 1979 when it sought to block publication of Howard Morland's 1979 Progressive Magazine article on 'The H-Bomb Secret.'

"Now, over two decades later, some of the central points of contention have been declassified and disclosed in the form of a 1979 exchange of correspondence between the eminent Hans Bethe, who opposed publication of the Morland article, and Livermore physicist Ray E. Kidder, who favored it."

The current issue of Secrecy News notes:

"Scientists at Lawrence Livermore National Laboratory are under orders from the Department of Energy to evade public inquiries concerning Iraqi weapons of mass destruction, the threat of catastrophic terrorism, and related issues.

"Yet the importance of such expert participation in public debate was illustrated by the recent dispute over the significance of Iraqi efforts to acquire 60,000 'high strength aluminum tubes.' In an October 7 speech, President Bush cited the attempted Iraqi purchase of the aluminum tubes as 'evidence .. that Iraq is reconstituting its nuclear weapons program.' That assertion is rejected by many DOE scientists and other experts, who argue that the tubes could have other, non-nuclear applications."

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CFAC gives Gov. Gray Davis its 2002 Black Hole Award
For persistent hostility to free speech and open government reform
The California First Amendment Coalition announced today that Governor Gray Davis is the recipient of the organization's 2002 Black Hole Award in recognition of his persistent hostility to free speech and the improvement of access to government meetings and records.

"Secrecy has permeated the Davis administration's actions on everything from the budget to his handling of the energy crisis, when the governor had to be forced by a court to obey the California Public Records Act," CFAC President Rich McKee said. "He has not been a friend to those who advocate for government openness. He is truly the prince of darkness when it comes to government transparency."

Through a series of vetoes, Governor Davis has routinely blocked legislation-including bills that passed the Legislature unanimously-that would have greatly improved compliance with open government laws and protected free speech.

In fact, when legislation might result in shedding more light on issues he would prefer remain without public scrutiny, Governor Davis has responded in a manner that makes it abundantly clear that he opposes and will veto any attempt to:

Allow the attorney general to provide the public with a second opinion on the lawfulness of public information denials

Allow any government attorney to seek enforcement of the law against a superior official who could not otherwise be prevented from engaging in corrupt activity

Allow journalists the same access to the California prison system that was available to them for more than two decades without incident

Details of Davis' actions that earned him the 2002 Black Hole Award are included in a bill of particulars available on the Internet at ../blackhole.html.

Additionally, Davis' secrecy surrounding energy negotiations circumvented the public's right to know how its government is spending money and finding solutions to crisis. And his own office has been exempted from even the cursory examination his administration did to assess how well state government is complying with the California Public Records Act. (See ../blackhole.html)

In the past, CFAC has given its black hole award to such recipients as the cities of Vallejo, Claremont and Inglewood and the board of supervisors and district attorney of San Bernardino County.

The award will be presented at OpenGov02, CFAC's open government annual conference being held this weekend at San Jose State University. The Davis administration was asked to respond to the award's allegations, but declined, sending instead a form letter regretting that he could not attend and sending the governor's "best personal wishes for a successful conference."

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Union-Tribune renews fight against plea secrecy

SAN DIEGO (10/14/02) The San Diego Union Tribune is pressing its case against plea bargain secrecy in federal court to the Ninth Circuit, U.S. Court of Appeals.

 

In papers filed with that court Friday, the newspaper asks that two orders of the local district court be vacated. One is the lower court's September 6 refusal to allow the newspaper to challenge its practice of marking criminal defendants' plea agreements and related documents as "exhibits" and thereby allowing them to be returned to the U.S. Attorney's office where they are inaccessible to the public.

 

The other is the court's September 30 decision permitting the sealing of a number of plea agreement records in a particular drug-related case, where a defendant in a $50 million money laundering conspiracy prosecution was sentenced to a little less than three years imprisonment in return for certain assistance to the government whose nature was never fully disclosed.

 

The newspaper's petition to the Ninth Circuit notes that criminal plea agreements are presumed to be public and can be removed from access only upon case-by-case determinations that the public interest demands such secrecy:

 

"The United States Supreme Court and this Court have ruled that the press and public have a presumptive right of access to criminal judicial records in general, and to plea agreements specifically, under the First Amendment. This constitutional protection cannot be trumped by a court practice that thwarts plea agreements from ever being filed as court records, as to do so would render the First Amendment a nullity and irreparably harms the public's right to monitor the plea bargaining process in this judicial district. Such a practice also circumvents the First Amendment guarantee of a meaningful hearing in opposition to secrecy before a plea agreement is found to be not disclosable. Bedrock law precludes judicial records from being kept secret unless a court, after carefully considering the interests of the parties and the public, finds that nondisclosure is strictly and inescapably necessary to protect a more compelling interest than the public's right to know."

 

The newspaper also argues that the Ninth Circuit's corrective attention is warranted because of the novel audacity in the court's routine practice:

 

"The district court's refusal to file plea agreements is also a question of first impression, raising important issues of constitutional magnitude. This Court's (and other courts') decisions mandate that the public's constitutional right to monitor the criminal plea agreement process be open to public scrutiny. Absent review of the district court's 'nonfiling' policy, the legality of such a practice will continue unchecked, impermissibly reversing the presumption of openness, as it is physically and financially impossible for challenges to be brought in every criminal case filed in this judicial district. The Union-Tribune is also unaware of any other court that has a policy of not filing plea agreements."

 

The newspaper points out that, as in California state courts, most federal criminal prosecutions end in bargained guilty pleas rather than trials.

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More to be disclosed about arbitrators, doctors

SACRAMENTO (10/14/02) Bills signed by Governor Gray Davis will shed more light on the work of those who arbitrate consumer actions and practice healing in California.

 

AB 2656 by Assembly Ellen Corbett (D-San Leandro) applies to key figures involved in the many situations where consumers, in contracting for a service or merchandise item, agree to have any disputes submitted to arbitration rather than suing in court. Under the bill, signed September 30, a private arbitration company filling this role will, with respect to cases arbitrated after January 1, 2003, be required to "collect, publish at least quarterly, and make available to the public in a computer-searchable format ... accessible at the Internet Web site of the ... company, if any, and on paper upon request, all of the following information regarding each consumer arbitration within the preceding five years:

• "The name of the nonconsumer party, if the nonconsumer party is a corporation or other business entity.
  
• "The type of dispute involved, including goods, banking, insurance, health care, employment, and, if it involves employment the amount of the employee's annual wage divided into the following ranges: less than one hundred thousand dollars ($100,000), one hundred thousand dollars ($100,000) to two hundred fifty thousand dollars ($250,000), inclusive, and over two hundred fifty thousand dollars ($250,000).
  
• "Whether the consumer or nonconsumer party was the prevailing party.
  
• "On how many occasions, if any, the nonconsumer party has previously been a party in an arbitration or mediation administered by the private arbitration company.
  
• "Whether the consumer party was represented by an attorney.
  
• "The date the private arbitration company received the demand for arbitration, the date the arbitrator was appointed, and the date of disposition by the arbitrator or private arbitration company.
  
• "The type of disposition of the dispute, if known, including withdrawal, abandonment, settlement, award after hearing, award without hearing, default, or dismissal without hearing.
  
• "The amount of the claim, the amount of the award, and any other relief granted, if any.
  
• "The name of the arbitrator, his or her total fee for the case, and the percentage of the arbitrator's fee allocated to each party."

As noted in a Senate committee analysis of the bill:

"AB 2656 was prompted by the Assembly Judiciary Committee's recent informational hearings regarding mandatory consumer arbitrations and the private arbitration industry. One problem noted was the 'repeat player' whereby a repeat defendant such as a corporate defendant may, consciously or not, receive preferential treatment or rulings from arbitrators who rely on being selected by the corporate defendant to earn a living as an arbitrator. Proponents assert that the bill is designed to reduce incentives to favor corporate parties, and to help address mounting public skepticism about the fairness of such arbitrations.

"Proponents also assert that problems of unfair processes are more acute today than ever because mandatory pre-dispute arbitration clauses have proliferated in consumer contracts ranging from credit cards and telephone service to home loans, health care and consumer goods."

The Governor also signed, on September 29, SB 1950 by Senator Elizabeth Figueroa (D-Fremont), directing the state medical boards overseeing physicians, podiatrists and osteopaths to begin providing the public with considerably more information about settlements entered into by their respective licensed doctors, involving $30,000 or more.

By next July the Medical Board of California is required to designate all practice specialties as being in either a "low-risk" or "high-risk" category in the senses relevant to insurance companies. The bill states, accordingly:

"All settlements in the possession, custody, or control of the board shall be disclosed for a licensee in the low-risk category if there are three or more settlements for that licensee within the last 10 years, except for settlements by a licensee regardless of the amount paid where (i) the settlement is made as a part of the settlement of a class claim, (ii) the licensee paid in settlement of the class claim the same amount as the other licensees in the same class or similarly situated licensees in the same class, and (iii) the settlement was paid in the context of a case where the complaint that alleged class liability on behalf of the licensee also alleged a products liability class action cause of action.

"All settlements in the possession, custody, or control of the board shall be disclosed for a licensee in the high-risk category if there are four or more settlements for that licensee within the last 10 years except for settlements by a licensee regardless of the amount paid where (i) the settlement is made as a part of the settlement of a class claim, (ii) the licensee paid in settlement of the class claim the same amount as the other licensees in the same class or similarly situated licensees in the same class, and (iii) the settlement was paid in the context of a case where the complaint that alleged class liability on behalf of the licensee also alleged a products liability
class action cause of action.

"The board shall not disclose the actual dollar amount of a settlement but shall put the number and amount of the settlement in context by doing the following:

• "Comparing the settlement amount to the experience of other licensees within the same specialty or subspecialty, indicating if it
  is below average, average, or above average for the most recent 10-year period.
  
• "Reporting the number of years the licensee has been in practice.
  
• "Reporting the total number of licensees in that specialty or subspecialty, the number of those who have entered into a settlement
  agreement, and the percentage that number represents of the total number of licensees in the specialty or subspecialty."

As noted in a Senate committee analysis of the bill:

"The author states that a review by the National Conference of State Legislatures revealed that ten other states (Arizona, Connecticut, Florida, Georgia, Idaho, Rhode Island, Tennessee, New York, Virginia, and Massachusetts) all disclose medical malpractice settlement information. The Medical Board of California convened a Public Information Disclosure Committee last year to investigate the issue of what information about a physician should be disclosed to the public, and in what format. Earlier this year, MBC adopted the recommendations of the disclosure committee, and recommended that legislation be pursued to disclose settlement information.

"The author argues that without settlement information, the current information disclosed by MBC can be misleading -- making it appear on MBC's web site that a physician has a clean track record, even when the physician has repeated histories of multi-million dollar malpractice settlements. The author notes that every other stakeholder in the medical community has access to settlement information except for consumers, including MBC for enforcement purposes, hospitals, medical groups, health insurance plans, and medical malpractice insurance carriers."

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Voter registration data access to be studied more

SACRAMENTO (10/14/02) Governor Gray Davis vetoed a measure to give commercial vendors access to confidential voter data -- but signed a bill calling for further study.

 

Currently, the listing on a voter registration card of the voter's home address, telephone number, and e-mail address, among other personal data, is generally confidential and exempt from disclosure under the California Public Records Act, and available only for election, scholarly, journalistic, political or governmental purposes.

 

The bill vetoed on September 27, AB 1713 by the Assembly Committee on Elections, Reapportionment and Constitutional Amendments, would have made these data available to "certified election data vendors" to be listed by the Secretary of State, but otherwise undefined in the bill.

 

That measure's entire language was dropped into a gutted unrelated bill four days before the end of the session and heard in committee only once, as noted by Davis in his veto message:

 

"While I recognize the need for legitimate access to voter information files, there is a more important need, which is to adhere to the rules of the democratic process and ensure that the public has an adequate opportunity to participate. The confidentiality of voter registration information is very important and changing the laws that protect this information deserves more public scrutiny than AB 1713 received.

"To that end, I have signed AB 2832 (Shelley), which would create a task force to study this matter, make recommendations and adopt uniform guidelines governing the protection of voter registration information. The issue of 'certified election data vendors' is one that could easily and more appropriately be addressed by this task force."

AB 2832 by Assemblyman Kevin Shelley (D-San Francisco), signed September 26, requires the Secretary of State to appoint a task force of seven members with experience in campaigns, administration of elections, public interest organizations, law enforcement, and other relevant backgrounds to study and recommend "appropriate standards applicable for safeguarding voter file information in view of the different database formats and security procedures used by the various counties."

The task force must file its report with the Secretary of State and the Legislature by January 1, 2004, and that official must within that year adopt uniform guidelines based upon the task force recommendations.

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Court: Census data not exempt from federal FOIA

PORTLAND (10/8/02) How many poor, transient and otherwise neglected people does the federal census "undercount" -- within particular congressional districts?

 

This question, which has vexed demographers and political professionals for decades, has been given serious study by the federal government in the last two censuses. Methods of educated guesswork to estimate the undercount have resulted in the Census Bureau's release of overall figures at the national level showing how many may have been missed, in terms of ethnic minorities, women and other subcategories.

 

But when two Oregon Congresswomen, Margaret Carter and Susan Castillo, used the Freedom of Information Act to ask the bureau for undercount estimates for their districts, the bureau balked, and finally cited the deliberative process privilege. The U.S. District Court, relying on a ten-year old Ninth Circuit case brought by the California Assembly, held that the privilege did not justify withholding the adjusted numbers because they were neither predecisional nor deliberative.

 

On appeal, a three-judge panel of the Ninth Circuit affirmed the district court's judgment in Carter v. Department of Commerce, Case No. 02-35161. The court essentially found the government's arguments already answered in the California Assembly case.

 

Judge Alfred T. Goodwin observed for the court, in reaction to an argument sometimes employed by California public agencies resisting release of challenged data:

 

"Finally, we reject DOC's argument that Exemption 5 applies because disclosure will chill future adjustment decisions. The thrust of its 'chilling effect' argument is that DOC will be less likely to adjust census data in the future if forced to disclose the adjusted data generated during Census 2000 because it will not want to be forced again to release unreliable data to the public. But this argument did not permit nondisclosure in Assembly. ("[I]naccuracy is not a basis for FOIA exemption." ). ... any concerns with public confusion caused by release of erroneous information could be allayed by warning FOIA requesters that the information is unofficial and disclaiming responsibility for 'any errors or gaps' . Accordingly, DOC's 'chilling effect' argument does not permit nondisclosure under FOIA here." 

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Davis signs bill on corporate records
SACRAMENTO (10/7/02) Governor Gray Davis has signed a bill making it easier to get access to records of private companies performing public functions.   AB 2937 by Assemblyman Kevin Shelley (D-San Francisco) amends one of the alternative definitions of "local agency" in the California Public Records Act to include either nonprofit or for-profit corporations whose boards are subject to the open meeting requirements of the Ralph M. Brown Act.  

The adjustment was sought because the existing language embraces only nonprofit boards. That exclusive focus led a trial court last year to conclude that the records law could not be used to gain access to documents of a private medical corporation that was the alter ego of a public health care district in Riverside County.  

The information was sought by The Press-Enterprise newspaper, which sued late in 2001 to obtain an employee roster and salary data from a corporation formed in a joint venture by a hospital district to run the district's facilities. While the corporation insisted that, as such, it is not subject to the California Public Records Act, the newspaper argued that under various authorities, the corporation is quasi-governmental.

Valley Health System is a public hospital district with facilities in Hemet, Moreno Valley and Menifee. In 1998 it contracted with a private corporation, KPC Global Care, to create a third entity, also corporate in structure, called Valley Health Care Management Services (VHCMS). That group has since operated the district's medical facilities.

The KPC in the district's partner's corporate name is Dr. Kali P. Chaudhuri, whose largest enterprise, KPC Medical Management, declared Chapter 11 bankruptcy late in November 2001, closing 38 clinics and leaving 2,000 employees without jobs and 300,000 patients without its services.

While that meltdown did not inherently affect VHCMS, that management company's status as the creature of a hospital district -- headed by the district's former chief executive officer -- led the newspaper to consider the compensation arrangements matters of public interest. Marcia McQuern, then publisher and editor, called the district "a very important institution in the San Jacinto Valley," and as for its corporate managers, "We think they ought to be operating with the public aware of what they're doing."

The newspaper's legal position was that VHCMS has financial data directly affecting the hospital district's decision-making process, a fact which made the information of public interest. Under the Ralph M.Brown Act, the newspaper contends, the governing body of a private corporation created by a public agency to perform a function delegated by that agency is subject to open meeting and at least some public records requirements.

But the superior court, ruling last year, noted that the language of the Brown Act applied only to "nonprofit" boards in this situation.

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Birth and death indices  
It came as little surprise that the Governor signed the bill his administration sponsored -- SB 1614 by Senator Jackie Speier (D-Hillsborough) -- which removes from public records access the "comprehensive" indices of births and deaths maintained by the State Registrar of Vital Statistics, and any comparably comprehensive index kept by a local registrar or county recorder.   Instead, birth index data available to the public will consist simply of first, middle, and last name, sex, date of birth, and place of birth, and open death record indices will show only those data plus place of death, date of death, and father's last name.   Even these stripped-down indices will be accessible only to those who prove their own identity and sign a form under penalty of perjury including:

• "The proposed use of the birth or death record indices.
• "A disclaimer crediting any analyses, interpretations, or conclusions reached regarding the birth or death record indices to the author and not to the State Department of Health Services.
• "Assurance that technical descriptions of the birth or death record indices are consistent with those provided by the State Department of Health Services.
• "Assurance that the requester shall not sell, assign, or otherwise transfer the birth or death record indices.
• "Assurance that the requester shall not use the birth or death record indices for fraudulent purposes."
  
  

 

Closed sessions on terrorist threats
Just yesterday Davis signed AB 2072 by Assemblyman Dennis Mountjoy (R-Monrovia), which will affect state agency bodies governed by the Bagley-Keene Open Meeting Act.

 

For a pilot period ending January 1, 2006, the bill allows these bodies to hold closed sessions to consider "matters posing a threat or potential threat of criminal or terrorist activity against the personnel, property, buildings, facilities, or equipment, including electronic data, owned, leased, or controlled by the state body, where disclosure of these considerations could compromise or impede the safety or security of the personnel, property, buildings, facilities, or equipment, including electronic data, owned, leased,
or controlled by the state body."

 

As safeguards, such a closed session would be authorized only upon a two thirds vote of the members present, and the bill would require the body to reconvene in open session and report "the general nature of the matters considered, and whether any action was taken in closed session." The body would also be required to submit written notification of these matters to the Legislative Analyst, who would be required to retain the notification for at least years.

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CPRA review, closed session leaks
But as of noon today, 12 hours short of the deadline for the Governor's action, it was not known whether he had signed or vetoed AB 822 or AB 1945 . The former would allow the attorney general to review and publish opinions concerning state or local agencies' denials of access to information under the California Public Records Act, and the latter would address the consequences for members of local bodies or employees who deliberately leak information from sessions lawfully closed under the Brown Act.

The latter bill, which began as an attempt to make leaks prosecutable as misdemeanors, ended up as a statement that confidences shared in properly closed sessions under the Brown Act must not be disclosed, but also clarifying that the law nevertheless permits:

• "making a confidential inquiry or complaint to a district attorney or grand jury concerning a perceived violation of law, including disclosing facts to a district attorney or grand jury that are necessary to establish the illegality of an action taken by a legislative body of a local agency or the potential illegality of an action that has been the subject of deliberation at a closed session if that action were to be taken by a legislative body of a local agency," or
• "expressing an opinion concerning the propriety or legality of actions taken by a legislative body of a local agency in closed session, including disclosure of the nature and extent of the illegal or potentially illegal action," or
• "disclosing information acquired by being present in a closed session under this chapter that is not confidential information."
  

 

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California ranked 3rd in "e-government"

PROVIDENCE, R.I. (9/16/02) -- The state of California placed third in a Brown University survey, "State and Federal E-Government in the U.S., 2002" with a score of 54.8%.

 

The authors of the survey released today noted, "California's portal page allowed the user to personalize the homepage, selecting user-preferred on-line state services and category links, as well as relevant state news. Portions of this website were also available for browsing on handheld Personal Digital Assistants (PDAs).."

 

Today's report in the New York Times noted one significant variant the study found from state to state: the cost to citizens to obtain e-access: "While government Web sites are providing better information over all, state officials are imposing more fees for that information."


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State policies on court e-records charted

WASHINGTON, D.C. (9/16/02) -- The Center for Democracy and Technology detects a "quiet revolution" in public access to court information using digital technology.

 

The center's new report, entitled "A Quiet Revolution in the Courts: Electronic Access to State Court Records," finds that more state and county courts are turning to the Internet as a tool to handle caseloads and to open judicial proceedings to the public.

 

"The trend represents a quantum leap in the openness and thus the accountability of the judicial branch at the local level where most cases arise," comments the center's summary.

 

"However, as the state courts dramatically increase the amount of information available online, they are contending with difficult and yet unresolved issues of cost, equity, and especially privacy."

 

The report includes a state-by-state summary of law providing and restricting access, as well as links to the on-line offerings of various local courts, for example Riverside County Superior Court.

 

That Web site, according to a report by Mike Kataoka of the Press-Enterprise, "was launched in July and, with little promotion, had thousands of hits" by mid-August.

Kataoka noted that "in the past, case information was offered only at the courthouse or through an online subscription service.

"The expanded site should make information more accessible for people who use the court system, said Jose Octavio Guillen, executive officer of the Riverside County Superior Court. That includes self-represented litigants, jurors, people dealing with traffic tickets and job applicants.

"The case information component enables Internet users to track civil, criminal, family law and probate cases by entering a name. The same remote access had been available for several years through a dial-up system that charged a start-up fee.
Guillen said the county offers as much, if not more, case information via the Internet as any California court."

 

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SCA 7 dies in Assembly despite wide support
SACRAMENTO (9/3/02) -- SCA 7, the Sunshine Amendment to the California's Constitution, died quietly last week after a chronic bout with partisan politics and an extraordinary array of last-minute opponents seeking its demise.

The bill, sponsored by CFAC and CNPA, would have allowed Californians to vote on a measure that provided for the strongest state open government provision in the nation.

Senate President John Burton, SCA 7's primary author, immediately announced that he would introduce SCA 1 next session in his continuing quest to improve state open government laws.

"We will continue to strongly support the passage of a fundamental constitutional right to open government for all Californians," said CFAC President Rich McKee. "The current lack of openness by many local government entities is shameful and often illegal. We're lucky to have a leader like Sen. Burton who has the conviction and perseverence to get the job done."

In the end, SCA 7 was killed by opposition from the insurance industry, the California Chamber of Commerce and--finally but fatally-by reservations expressed by Attorney General Bill Lockyer.

SCA 7 stalled in the Assembly after passing the state Senate without a single dissenting vote. Assembly Republicans refused to allow the measure to proceed by refusing to agree to a rule waiver necessary for the bill to be heard.

Sen. Burton reacted angrily to the Assembly Republican roadblock: "I guess the Assembly Republicans have joined the secrecy lobby," Burton told the Associated Press. "I thought the Republican mantra was supposed to be 'less government,' not 'less open government.'"

But the Assembly Republican maneuver was just one more roadblock on a path littered with barriers thrown up by SCA 7 opponents whose ranks included the California League of Cities; California State Association of Counties; the insurance industry; California Chamber of Commerce; American Electronics Association; California Association of Sanitation Agencies; California Law Enforcement Association of Records Supervisors; California Municipal Utilities Association; California Redevelopment Association; City of Moreno Valley; Los Angeles District Attorney's Office and the University of California.

Officially supporting SCA 7, in addition to CFAC and CNPA, was the American Federation of State, County and Municipal Employees AFL-CIO; California Chicano News Media Association; California Common Cause; California Land Title Association; California Soiciety of Newspaper Editors; Green Party of California; League of Women Voters of California; Los Angeles Press Club; National Writers Union; San Francisco Bay Area Local 3; Sierra Club of California; and the northern and southern California chapters of the Society of Professional Journalists.

Newspapers large and small throughout the state also gave hearty support to the effort, publishing nearly sixty editorials urging legislators to pass SCA 7 and let the people decide how open their government should be.

As the legislative session ended, negotiations over the language in SCA 7 had eliminated much of the opposition's concerns and still accomplished the measure's core values. But Attorney General Lockyer's opposition to the concept of a constitutional right to open government became the final blow to efforts by CFAC and CNPA to negotiate a successful path for SCA 7.

Lockyer opposes any fundamental right of access to government in the constitution that would provide a basis for challenging either over-secretive laws on their face or over-secretive practices as applied, according to Deputy Attorney General Will Brieger. The attorney general's position stunned SCA 7 supporters since this outright opposition didn't emerge until the final days of the legislative session and was never mentioned during months of language negotiations with attorney general representatives.

"I'm amazed the AG is taking this position," said CFAC General Counsel Terry Francke. "We just have to talk him out of sticking with this line."

Francke and CNPA General Counsel Tom Newton both believe opponents to a constitutional right to open government can be neutralized with a few compromises that don't damage the amendment's primary goals.

The business community, for example, is concerned that a public agency may not be able to guarantee businesses perpetual protection for information the government obtains from a business in order to regulate it. Francke and Newton both believe language can be crafted to eliminate this concern.

And mid-level government workers expressed concern that their job evaluations and performance appraisals would be subject to public scrutiny under SCA 7's provisions. Francke and Newton believe this concern can be eliminated by defining positions subject to SCA 7 as "senior appointed officials who have substantial responsibility for, or control over, the conduct of governmental affairs."

These and other compromises will be discussed with Sen. Burton before next year's SCA 1 is introduced. Then the effort to obtain a fundanmental constitutional right to open government for all Californians will continue.

"Hearing our opponents' arguments did nothing but strengthen our resolve to succeed," said CFAC Executive Director Kent Pollock. "It is heartening to know that there is still extraordinary legislative support for the concept and that Sen. Burton has the courage and wisdom to continue the effort next year."

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Bill gives citizens right to AG opinions
SACRAMENTO (9/3/02) -- A bill giving the attorney general's office the power to review sunshine law complaints by citizens and providing penalties for open government law violations passed the legislature in the final moments before adjournment and is now headed to the governor's desk where similar legislation has twice been vetoed.

Under current law, only public officials can request and obtain attorney general opinions. But AB822 provides citizens who have been denied a public record or access to a public meeting with the same ability. Attorney general opinions are not binding under law, but courts have given AG opinions much weight in ruling on open government cases.

The bill, AB822 by Assembly Member Kevin Shelley (D-San Francisco), was originally introduced as a utility bill to address funding of public transportation. It was then gutted and amended to deal with discipline of government contractors, then amended again to focus on adult day health centers, and finally stripped out and amended once more in August to require the Attorney General to review denials of access to information under the California Public Records Act.

AB822's principal co-authors are Sen. John Burton (D-San Francisco), Sen. Bruce McPherson (R-Santa Cruz) and Sen. Debra Bowen (D-Redondo Beach). It passed in a form essentially identical to a bill by Senator Byron Sher (D-Palo Alto) vetoed in 1999 by Governor Davis on cost grounds in 1999. Davis had already vetoed an earlier version by Sher that might have left a Governor's denial of access to records open to second-guessing by the AG.

AB 822 authorizes the attorney general's office not only to issue opinions reviewing particular agency actions but also to sue agencies when necessary to enforce the law. And it will give such policing powers to the AG concerning not only denials of access to public records but also violations of open meeting laws, conspicuously including the Ralph M. Brown Act.

According to the Legislature's analysis of AB822:

"The bill would provide that any person who is notified of a denial of a request for public records may appeal to the Attorney General pursuant to specified procedures within 20 days of the date of denial and in cases where the agency fails to provide any response under these provisions. By creating new duties for local agency officials, the bill would impose a state-mandated local program.
"The bill would also require the Attorney General to issue a written decision within 20 working days of the date that the written request and written response or lack of response of the agency is received by the Attorney General and would provide that the time
limit for the Attorney General to respond is directory and not mandatory. The bill would require the Attorney General to maintain copies of the opinions issued pursuant to these provisions, to publish the opinions annually in a special volume, and make them available on the Internet.
"The bill would also allow the superior court, in its discretion, to impose a fine on the agency of not more than $100, as specified, for each day that the agency's action resulted in the denial of the plaintiff's right to copy or inspect the record in question, not to exceed a total of $10,000, if the court finds that in declining to comply with a request to inspect or copy a record under the act, the agency acted in bad faith or with knowledge that the request sought nonexempt records."

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Bill would give AG an enforcement role
SACRAMENTO (8/26/02) In the Legislature's final days it will be asked to give the Attorney general's office the power to review and address sunshine law complaints.

AB 822 by Assembly Member Kevin Shelley (D-San Francisco), a utility bill originally introduced to address funding of public transportation, then gutted and amended to deal with discipline of government contractors, then again to focus on adult day health centers, was stripped out and amended once more last week in the Senate to require the Attorney General to review denials of access to information under the California Public Records Act.

In that form, the bill was essentially identical to a bill by Senator Byron Sher (D-Palo Alto) vetoed by Governor Davis on cost grounds in 1999. Davis had already vetoed an earlier version by Sher that might have left a Governor's denial of access to records open to second-guessing by the AG.

AB 822 is being amended once more this week to make the AG's role even stronger. The new language will authorize that office not only to issue opinions reviewing particular agency actions but also to sue agencies when necessary to enforce the law. And it will give such policing powers to the AG concerning not only denials of access to public records but also violations of open meeting laws, conspicuously including the Ralph M. Brown Act.

Once amended to that effect in the Senate, AB 822 would require only a majority vote of concurrence back in the Democrat-dominated Assembly in order to go to the Governor's desk. Governor Davis could always veto it again, but there is some reason to believe that few if any opponents will ask him to do so, and that Attorney General Bill Lockyer will go on record urging passage.

The AB 822 initiative is a last-minute attempt, engineered by Democrat leadership in both houses, to salvage some substantial and prompt improvement in open governement policy even if, as it appears, SCA 7 dies in the Assembly because Republicans will not allow a rule waiver to let it be heard or because neither Assembly Democrats nor Lockyer are ready for fundamental constitutional reform, or both.

Work continues on SCA 7 language, however, in case the unforeseeable might allow it to he heard and passed by this Saturday's midnight deadline, and in any event because if it does die the author and sponsors -- the California First Amendment Coalition and the California Newspaper Publishers Association -- are committed to renewing the constitutional amendment drive next January when the Legislature begins a new session.

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Court: Agreement may override CPRA
LOS ANGELES (8/26/02) The government can't simply agree with someone not to allow access to public records -- unless that someone is a litigating partner.

So ruled the California Court of Appeal for the Second District in its opinion filed August 22 in Armenta v. Superior Court (James Jones Co.).

The case involved a qui tam (bounty hunter) lawsuit brought jointly by a private individual and the Los Angeles Department of Water and Power (LADWP) against several vendors for selling the department and a host of other muncipal water agencies valves, fittings and other bronze plumbing hardware that allegedly permitted an unsafe level of lead to leach into drinking water, and would also result in premature deterioration of the parts themselves.

Private plaintiff Nora Armenta, a former employee of one of the vendors, and LADWP agreed to prosecute the action together under the False Claims Act. One clause in their collaboration agreement bound them to respect the confidentiality of any work product they jointly produced. Later, there were a variety of consultant studies ordered and shared jointly (although paid for by LADWP), plus studies done exclusively by the department and not shared with Armenta.

LADWP finally sought to settle with the vendors, and as part of the agreement proposed releasing the consultants' studies to them. Armenta and certain water authorities reisisted release of this material, citing the joint prosecution agreement, and in particular the confidentiality pledge for studies done and shared between those prosecuting the action. The trial court agreed with LADWP that the California Public Records Act (CPRA) prevents public agencies from ever agreeing with a non-government party to keep records confidential.

The appellate court disagreed. The department took the position that the only exemption from disclosure available under the CPRA to protect the consultants' studies was found in Government Code Section 6254 (b), which applies to records "pertaining to pending litigation," but which lapses when the public agency settles the case. But, wrote Presiding Justice Vaino H. Spencer for the court:

"Both LADWP and the court overlooked another exception to mandatory disclosure. Subdivision (k) of Government Code section 6254 states that ''nothing in this chapter shall be construed to require disclosure of . . . [r]ecords the disclosure of which is exempted or prohibited pursuant to federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege." In other words, certain documents can be protected as work product under subdivision (k) even though they are not protected under subdivision (b). ...

"The existence of the exception embodied in Government Code section 6254, subdivision (k), establishes that nothing in the Public Records Act obligated LADWP to disclose documents pertaining to its testing of water distribution parts when those documents comprised work product. While LADWP' s counsel could waive her own work product privilege with respect to those documents, she could not waive the privilege jointly held by Armenta. ...

"As LADWP recognizes, the joint prosecution agreement binds it to the extent provided by law. As long as the Public Records Act does not compel disclosure, LADWP is bound by the joint prosecution agreement."

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Assembly Republicans deny SCA 7 a hearing
SACRAMENTO (8/20/02) -- A bill to make open government a fundamental constitutional right appears dead because the Assembly Republican Caucus would not permit it to be heard.

SCA 7, co-sponsored by the California First Amendment Coalition and the California Newspaper Publishers Association, has been the subject of intense negotiations over the past week involving representatives of Attorney General Bill Lockyer and Assembly Speaker Herb Wesson (D-Culver City).

Those discussions were focusing on a major redrafting of the bill to introduce a novel "teeth" element: the Attorney General's authority to review and even go to court to litigate denials of rights of access to public meetings and records.

But that work on new content is mooted at least for this year by the refusal of the Assembly Republicans to consent to rule waivers that would permit the bill to be heard in the Assembly.

A few Senate bills have been granted rule waivers, but Assembly Republican Floor Leader Dave Cox of Fair Oaks reportedly told the Associated Press that since SCA 7 missed the chance to be on the November ballot and could not be presented to voters for approval until 2004 in any event, there would be ample opportunity in the 2002-2003 session to address a re-introduced bill without rushing it through the Assembly.

This session is set to recess on August 31.

Even without the rules roadblock, SCA 7 was under such serious attack by private industry interests -- whose opposition would probably be enough to deny the measure sufficient Republican support in the Assembly -- that CFAC and CNPA were negotiating on a substantial rewrite to eliminate the target of these attacks.

That provision would require agencies, in order to deny access to a government record or meeting, to make a "particularized finding" that harm to a vital public interest would necessarily follow from providing the access.

The Attorney General countered with an offer, as a substitute for all provisions in SCA 7, to support constitutional creation of a state commission on open government to hear complaints of violations and enforce the sunshine laws.

This approach was in effect rejected, however, by Bill Cavala, who advises the Assembly Democrats on policy and political matters, and who said Speaker Wesson and others would be much more receptive to review by the Attorney General, a concept approved unanimously by lawmakers in SB 48 in 1999, but vetoed by Governor Davis.

In discussions still ongoing today, that approach would have been broadened in two significant aspects, aside from being constitutionally established. Unlike SB 48, it would have permitted Attorney General review of open meeting as well as public records complaints, and it would have authorized the Attorney General not only to issue opinions on the lawfulness of agencies' denials, but also to go to court to obtain enforcement orders when agencies disregarded the opinions.

On the other hand, Deputy Attorney General Will Brieger, acting as lobbyist on the measure, said his office opposed including any expression of a constitutional right of access to meetings and records. The only acceptable compromise, he was indicating as of today, was the enforcement authority, leaving the legislature and courts constitutionally free to adopt whatever law they pleased limiting access to meetings and records.

This position is unacceptable to the co-sponsors of SCA 7, for whom elevating open government to the status of a fundamental constitutional right has always been the core point.

But such details appear academic, and meanwhile the measure's principal author, Senate President pro Tempore John Burton, lost no time issuing a press release berating Assembly Republicans for the rule waiver denial.

"I guess the Assembly Republicans have joined the secrecy lobby," Burton is quoted as saying.

"I thought the Republican mantra was supposed to be 'less government,' not 'less open government.' But given their inaction on the budget, I can almost understand their wanting to keep the public in the dark about what they're doing."

     Comment: Only immediate and resounding pressure from the press and those especially influential with Republicans would reverse today's development. If the situation is irreversible, the result is extremely dispiriting but not desperate. It took Burton and former Senator Quentin Kopp two bills over nearly three years a decade ago to overcome a veto and achieve major revisions in the Ralph M. Brown Act. Burton appears ready to lead the attempt again in the next session. But for those who pinned their aspirations on the change SCA 7 could make, there is no more vivid evidence of the collateral damage resulting from the budget standoff, which has not only put the state in arrears on its financial obligations but has subjected its policy-making process to the worst excesses of partisan inside gamesmanship. The budget impasse has been carefully buffered to avoid gouging the pocketbooks of important constituencies. But as for most policy issues, it has become more important to blame others for failure than to share credit for success.

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LA Times' Inland Valley Voice supports CFAC suit
UPLAND (8/20/02) -- CFAC's lawsuit attempting to force the city of Upland, which owns a controlling majority of the San Antonio Water Company, to hold water meetings publicly gained editorial support last week from the Los Angeles Times. The editorial concludes: "Richard McKee, president of the California First Amendment Coalition, said the company 'is clearly part of Upland -- how someone can think they can make decisions with public money in private, I can't figure that out.' Neither can we. The company should comply.

Online petition seeks to stop SB1614
SACRAMENTO (8/19/02) -- A petition is currently being circulated online to stop SB1614 from being enacted into law. SB1614 would preclude state agencies from providing comprehensive birth and death indices to private entities even though the state has sold these indices to companies that then charge a fee for access. To sign the digital petition, click here.

Compromise reached on NJ open records law
TRENTON, N.J. (8/20/02) -- A compromise with the McGreevey administration on the state's public records law reaches the right balance between the need for open government and security concerns, advocacy groups and media representatives said. See Story

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ANALYSIS: New rationales for old secrecy instincts
"A year after the terrorist attacks temporary emergency actions have evolved into fundamental changes in the public's right to know," writes Mary Graham in the September issue of The Atlantic.

 

Seized 'Birdman' manuscript to be sold
LONDON (8/6/02) Most people are unaware that Robert Stroud, the famous federal inmate known as The Birdman of Alcatraz, was the author of two detailed books that were seized and suppressed by the Bureau of Prisons during his life, saved from shredding by his attorney 40 years ago, and have been unintentionally kept under wraps by that attorney ever since. (See Story)

 

OpenGov02 early registration approaches
SAN JOSE (7/29/02) Early registration deadline for CFAC's OpenGov02, the conference for people passionate about government transparency, is Aug. 15, so be sure to go to www.opengov02 for conference details.

This year's conference, to be held Oct. 17-19 at San Jose State University, features experts in the field of law, journalism and civic activism who will share their expertise and experiences with conference participants. Keynote speakers include Los Angeles Times Executive Editor John Carroll, Chief Justice of California Ronald George, and California Voter Foundation founder Kim Alexander.

There will also be dozens of sessions by other experts, and over 33 hours of MCLE credits have been applied for with the California Bar Association. To see a listing of OpenGov02 presentations, CLICK HERE.

"This is shaping up to be a terrific event," said CFAC President Richard McKee. "The program has something for everyone, from civic activists to attorneys and professional journalists."

OpenGov02 will also feature spotlight speakers such as Lee Tien, of the Electronic Frontier Foundation; Bill Chamberlin, Director of the Marion Brechner Citizen Access Project in Florida; and CFAC's Rich McKee. And there'll be a great debate between CFAC General Counsel Terry Francke and Arielk Calonne, chair of the California League of Municipalities' city attorneys committee.

To save money, be sure to REGISTER for OpenGov02 before Aug. 15.

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CFAC: Release bids on water privatizing
SACRAMENTO (7/29/02) The California First Amendment Coalition is asking Stockton officials to release proposals to privatize the city's water and waste treatment systems.

Proposals from three bidders were received July 1 but are being withheld from the public.

A report in Saturday's Stockton Record notes that Mayor Gary Podesto will ask the city council at tomorrow's meeting to create "a committee of business and civic leaders charged with reviewing the bids of three companies seeking to run the city's water utilities.

"The request, Podesto said, is a concession to residents who have asked that the public have more input into an evaluation process currently being conducted behind closed doors."

The award, in what the city describes as its largest contract in history, is due to be made on November 12, after a report from the citizens' committee and public hearings.

CFAC's letter takes issue with several rationales that city officials have offered for not making the proposals public, including that they are too technically complex for the community to understand before the consultant analyzes them, and that allowing the competing bidders to see one another's proposals would make it harder for the city to negotiate the best final deal.

 

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A.G.: Logging industry data disclosable
SACRAMENTO (7/29/02) The State Board of Equalization may release data from otherwise confidential records on timber and log sales without identifying the source.

So concludes an opinion published by the office of Attorney General Bill Lockyer last Thursday.

In opinion number 01-901, in response to a query by the board, the conclusion is that it "may publicly disclose information that its staff has compiled regarding timber and log sales transactions if the information is provided in a source-neutral, summary fashion that does not identify or make ascertainable specific timber or log sales transactions or the parties involved in such transactions."

The opinion notes that the confidentiality requirement for information submitted by logging operators under the Timber Yield Tax Law is to protect proprietary data of the taxpaying operator against competitors:

"The prohibition is thus intended to protect the privacy rights of timber owners, preventing business competitors and others from obtaining information furnished to the Board concerning their business affairs and operations. The Board's administration of the Timber Yield Tax Law is thereby facilitated by making sure that the information it receives from timber owners is accurate due to the Legislature's confidentiality mandate. By not disclosing the information furnished by the timber owners concerning their business affairs, the prohibition is satisfied in light of its evident purpose. This purpose is protected when different information, statistical data created by the Board's staff, is disclosed to the public where the identities of the individual timber owners, their sales transactions, and business operations are not ascertainable."

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Opposition to vital statistics bill growing
SACRAMENTO (7/22/02) -- Opposition is mounting against Sen. Jackie Speier's so-called "vital records" bill that would keep birth and death record indices confidential and exempt from disclosure under the California Public Records Act.

Under SB1614, which would exempt the indices from disclosure under the California Public Records Act, members of the public may "view" an edited version of them, but only after certifying under penalty of perjury not to use the information viewed to commit a crime. Vital records would still be available to government and law enforcement agencies but these agencies would be prohibited from selling or releasing these indices, except as authorized by law.

So far, at least 19 groups from adoptee rights organizations to genealogical societies and news groups have signed off in opposition of the bill. One of the more vocal opponents, "Bastard Nation," an adoptee rights organization, has launched an on-line petition seeking signatures from those opposed to the measure. Within 24 hours of going on-line, the group received 158 signatures, mostly from the adoption community. As of today that number has exceeded 1,100. So far Jean Uhrich, a Sacramento-based organizer with Bastard Nation, numbers 18 other groups as members of an informal "Round Table" opposing the measure.

This mixed medley includes the Association of Korean Adoptees - Southern California; Bay Area Birthmothers Association; California Bankers Association; California First Amendment Coalition; California Newspaper Publishers Association; California Society for Clinical Social Work; California State Genealogical Alliance; Data Control; FAIR - Families Adopting in Response; Federation of Genealogical Societies; Genealogical and Historical Council of Sacramento Valley; Holt International Children's Services; Merlin Information Services; National Council of Birthmothers; PACT - An Adoption Alliance; Post-Adoption Center for Education and Research; and Probate Researchers.

Opponents contend that the bill threatens the core principles of the state's Public Records Act and that it would unnecessarily restrict the public's right to access basic vital records. They also contend that there is no evidence that vital records indices which include names, dates of birth and mother's maiden names have been used in crimes such identity theft, fraud or terrorism. They note that legitimate users of the information include journalists, genealogists, adoptees, bankers, licensed investigators and insurance companies.

However, backers of the measure say they are merely acting before trouble strikes. Supporters say that the information could be easily used to steal people's identity or perpetrate fraud. They contend that identity theft, a growing crime nationwide, could be facilitated through use of the records.

The bill, which has undergone multiple amendments, sailed through the Senate Judiciary Committee with a 4-1 vote and passed the Senate Floor in a 21-16 vote, mostly along party lines. It faces an uncertain future in the Assembly.

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Court: No records suits against requesters (7/15/02)
SAN FRANCISCO: California state and local agencies may not sue public records requesters in preemptive actions forcing them to defend their requests. So ruled the California Supreme Court in its opinion filed today in Filarsky v. Superior Court, case no. S091308.

Writing for the unanimous court, Chief Justice Ronald George stated,

"Permitting a public agency to circumvent the established special statutory procedure by filing an ordinary declaratory relief action against a person who has not yet initiated litigation would eliminate statutory protections and incentives for members of the public in seeking disclosure of public records, require them to defend civil actions they otherwise might not have commenced, and discourage them from requesting records pursuant to the Act, thus frustrating the Legislature's purpose of furthering the fundamental right of every person in this state to have prompt access to information in the possession of public agencies."

The decision reverses a ruling by the California Court of Appeals for the Second District, which concluded that the city of Manhattan Beach was in conformity with the California Public Records Act (CPRA) in suing Steve Filarsky, an attorney, seeking a declaratory judgment that it need not release the records he sought concerning the hiring of a police captain. The Second District agreed with the city that Filarsky exposed himself to being sued in this manner when he continued to argue with the city after being told the records were exempt from disclosure.

But the high court concluded that allowing the carefully limited declaratory relief provisions of CPRA, or even the more general approaches to declaratory relief outside the Act, to be used by the government was an abuse of discretion. The court expressly reserved for a future case, however, the question of whether a third party, concerning whom information is being requested from a government agency, may go to court seeking an order blocking release.

     Comment: Supplementing Filarsky's oral argument before the supreme court, Kelli Sager of Davis Wright Tremaine in Los Angeles appeared for the California First Amendment Coalition as amicus curiae. The city's position was supported by amici curiae League of California Cities and California State Association of Counties. "This is a tremendous victory for the public," said CFAC President Rich McKee. "The court clearly confirms the legislative intent that public records should be made available upon request without bureaucratic or legal delays."

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Child suicide cases continue in secrecy (7/15/02)
LOS ANGELES: Despite a 3-year old law intended to allow more public scrutiny of the circumstances leading to the deaths of children under the authority of the juvenile courts and supervision of the county child protective service agencies, these institutions continue to make the process difficult, expensive or impossible-even when the death is ruled a suicide.

As noted in a July 8 report by the Los Angeles Daily Journal, "The 17-month search for an explanation why a 9-year-old child killed himself in Los Angeles County illustrates the difficulties faced by child advocates in a system wracked with secrecy." The story by Cheryl Romo, a companion piece to her account of the 9-year-old's mysterious death, notes that since last December her newspaper has filed eight petitions with the Los Angeles Superior Court, citing the Lance Helms Sunshine Act, seeking information on the murders or suicides of children in the juvenile court dependency system or supervised by the Los Angeles Department of Children and Family Services. Despite the Daily Journal's request for expedited rulings on the access petitions, as of last week "the court has permitted no access, and seven of the petitions are pending." In the eighth case, in which an 11-year-old committed suicide with a gun in his own home, a deputy county counsel representing the department asked the court that "privileged or confidential information contained within the juvenile case file not be disseminated."

Presiding Juvenile Court Judge Michael Nash denied the access petition and sealed his order to that effect, contending that no law compelled him to explain himself, despite the Helms Act's requirement that access denials must be made "only upon a showing that release of the juvenile case file or any portion thereof is detrimental to the safety, protection, or physical, or emotional well-being of another child who is directly or indirectly connected to the juvenile case that is the subject of the petition." Judge Nash later clarified that he had made a determination to that effect, but continued to decline an explanation.

     Comment: Despite its disclosure-favoring title, the Lance Helms Sunshine Act is deliberately structured to permit the adults left standing around the suicide, murder or criminally negligent death of a young ward to create a rationale for continued secrecy-citing the privacy of at least one other child "directly or indirectly connected." Moreover, as a probably unique exception to the law of access to information in state courts, the rationale for denying access need never be disclosed.

As the California Court of Appeal commented last year in Pack v. Kings County Department of Human Services, affirming a continued seal on why records were withheld under the Helms Act, "We also recognize the frustration likely felt by appellants who have been told their presumptive right to access will not be honored in this case but at the same time have not been told why this is so, beyond a recitation of some statutory phrases and a few factual generalities which together probably communicate nothing more than that appellants will not get Jaime's files 'because we said so,' and without detailed explanation of the substantial evidence which supports the juvenile court's order. We can only respond by pointing out that 'because we said so' is about all that can be said in most cases arising under (the Helms Act)."

 

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Dawning concept: Transparency works (7/15/02)
WASHINGTON, D.C "During the last decade, 26 countries have enacted new legislation giving their citizens access to government information. Why? Because the concept of freedom of information is evolving from a moral indictment of secrecy to a tool for market regulation, more efficient government, and economic and technological growth." So says an article by Thomas Blanton in the July-August issue of Foreign Policy.

The most recent major entry is Mexico's Federal Transparency and Access to Public Government Information Law, unanimously approved by the Parliament in April and signed by President Fox in June, to be effective next May. A descriptive summary of this law as well as that of 30 other nations is found in David Banisar's survey, "Freedom of Information and Access to Government Records Around the World." Mexico's good intentions are being signaled by release of "more than 80 million documents from the now-defunct Federal Security Directorate, the Foreign Secretariat, the Federal Attorney General's Office, and the National Immigration Institute from 1948 to 1985, (which) will give Mexicans an unprecedented window into the campaign by past governments against leftist guerrillas and militants," says Marion Lloyd in the Boston Globe, including material on the notorious massacre at the Plaza del Tlatelolco in 1968, where government agents are thought to have killed about 300 student protesters and wounded hundreds more.

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Looming concept: Secrecy comes first (7/15/02)
WASHINGTON, D.C.: Meanwhile the U.S. Congress, bucking the international tide, is considering the neutering of a considerable sector of the federal Freedom of Information Act (FOIA) as a step essential to "homeland security." The "homeland" novelty can be understood best by contrast with "national" security, under whose aegis most documents that would show what the government has done, is doing and proposes to do in the foreign policy and military sectors are exempt from FOIA if not downright classified. The "homeland" security analog would exempt from FOIA information about private companies, supplied by them under the label of "vulnerability." Under a provision of the Homeland Security Act of 2002, now pending in the Senate, the American Society of Newspaper Editors says, the concern for real security could backfire:

"Section 204 makes virtually every FOIA exemption proposed in the past decade look relatively benign. Its reach is so broad that a private company could virtually share any information with the government, state that it relates to infrastructure vulnerabilities or a vulnerability from terrorism, and never have that information, or even the fact of its existence, see the light of day, as it is highly unlikely that a claim of 'vulnerable to terrorism' will be second-guessed by the courts. In the interest of protecting security, the efforts of private industry and government to fix potential security problems would go unchecked; residents of local communities would have no knowledge that they were in any danger, nor any idea of the remedial actions being taken and their status, whether such actions are proving effective, or how residents can protect themselves in the event that a remedy is not achieved and an attack occurs."

ASNE announced last week that it had joined the Society of Professional Journalists, College Media Advisers, Criminal Justice Journalists, Government Accountability Project, Journalism Education Association, National Newspaper Association, Newspaper Association of America, Radio-Television News Directors Association, Reporters Committee for Freedom of the Press, Society of Environmental Journalists in asking that Congress reject this provision, as it is "ripe for misuse and abuse." ASNE supplies a background paper on the significance of Section 204 and the joint letter sent last Wednesday, and asks Californians who share its concerns to convey them to Senators Boxer and Feinstein.

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SCA 7 deadline looms - insurance industry moves to gut the Sunshine Amendment (7/15/02)
SACRAMENTO: It is now clear that SCA 7 cannot be on the November 5 ballot this year. Even the most optimistic stretch of possible deadlines to July 18 will not accommodate the fact that the bill will not be heard in its first Assembly committee until the week of August 5 at the earliest. But if it does obtain the required two thirds Assembly vote (and Senate concurrence) by August 31, it will be secure for addition to the next statewide ballot, which is now the March 4, 2004 primary.

Meanwhile, the American Insurance Association is opposing SCA 7, the Constitutional Sunshine Amendment, seeking an exemption for information gained by the government from any private person or business in the past, and for information submitted to the government by a private person or business in the future under a confidentiality agreement. AIA's letter of opposition was submitted to the Senate Constitutional Amendments Committee on June 21. It did not prevent the committee's passage of the bill, or the full Senate's 34-0 approval the following week. But it did prompt Senator Ray Haynes (R-Riverside), committee chairman, to seek the assurance of Senator Jon Burton (D-San Francisco), the bill's principal author, that steps would be taken to protect private companies' "trade secrets." But the letter asks for protection far beyond trade secrets, i.e., information whose value to its owner is directly dependent on its not being known to competitors. Instead, it proposes to remove from public access essentially all private sector disclosures to government regulators-especially those submitted under a pledge of secrecy.

     Comment: Unlike SCA 7's other overt opponents to date, the AIA spends political money. According to the Secretary of State, its contributions in 2001 (a non-election year) included $50,000 to the campaign of Tom Calderon, a Montebello Assemblyman, for the post of insurance commissioner; plus $25,000 to the California Democratic Party, $50,000 to its Republican counterpart, and about $191,000 overall. "This is not a matter of guarding against wrongdoing by businesses. If a regulator's review of a business reveals wrongdoing, it should and will prosecute that wrongdoing appropriately," AIA's opposition letter asserts. That position ignores the fact that former Insurance Commissioner Charles Quackenbush refused to provide information to the Legislature concerning his regulation of certain companies faulted for their treatment of policyholders in the aftermath of the earthquake. It was ultimately an insurance department attorney, risking her career, who supplied lawmakers with market performance reports showing that four major insurance companies could have faced huge fines for their alleged treatment of homeowners' claims stemming from the Northridge earthquake. Instead of pursuing the fines, Quackenbush settled the liabilities by allowing the firms to contribute much smaller amounts to several designated nonprofit organizations, resulting in political credit to him but no compensation for the policyholders. As to the more persuasive point that insurers and other companies may be compelled to show regulators competitively sensitive information to prove they were complying with the law, any necessary confidentiality is already accounted for in SCA 7's allowance for withholding certain information in the interests of the fair and effective administration of the law. Confidentiality agreements per se neither need nor deserve express constitutional protection, especially since secret regulation can be a mixed blessing at best. The request for such a permissive write-your-own secrecy ticket assumes that only secrecy can guarantee the fair and effective administration of the law, and that transparency never would. In also precluding a retrospective look at how fair and effective regulation has been under past administrations, irrespective of how harmless to current competition, the AIA's formula is one likely to relieve both regulators and regulated industries from accountability.

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County appeals records release order (7/8/02)
SANTA ANA: The Orange County Board of Supervisors has decided to appeal a superior court order that District Attorney Tony Rackaukas's office release to the Los Angeles Times a letter it had sent to the Huntington Beach Police Department, explaining why it found insufficient evidence to file criminal charges against an officer in the department. According to a report in the Times, the city paid a $25,000 settlement to a 21-year-old pizza deliveryman who was punched and kicked in the stomach two years ago by an off-duty policeman who later said he had felt threatened when the young man drove by his house and honked his horn. The day after this confrontation, Officer Edmond Kennedy threw to the ground a 17-year-old who had made a rude gesture to him after being ordered to throw away his cigarette lighter. His department assigned Kennedy discipline in both incidents but also referred the matter for criminal investigation. A copy of the resulting letter was ordered released to the newspaper by the Orange County Superior Court.

 

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Sunshine Amendment passes Senate 32-0 (7/1/02)
SACRAMENTO: SCA 7, the bill to place a fundamental right to open government in the California Constitution,  passed the Senate Friday, June 28 by an 80 percent margin on  a vote of 32-0. The eight Senators listed as absent, abstaining   or not voting were Costa, McClintock, Morrow, Ortiz, Poochigian,  Sher, Speier and Vincent. The bill is in the Assembly, expected to be set for its first hearing in the Assembly Committee on Governmental Organization shortly.

A major development is the on-record support for the bill now expressed by the American Federation of State, County and Municipal Employees (AFSCME), the state's largest non-educational public employee union. This support helps establish that, contrary to the persistent criticism of local government agency opponents in particular, SCA 7 poses no privacy threat to public employees.

Comment: The Assembly G.O. Committee's very large (24) member count equates to 30 percent of the house and will be a good predictor of SCA 7's eventual success on the floor-if it gets that far. The large number also makes it more likely that most CFAC members have an Assembly representative on the committee, a point that can be readily checked. Your member needs to hear about your support for SCA 7 now, especially by phone or brief letter.

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CPRA denials by state agencies sought (7/1/02)
SACRAMENTO: Assemblyman Bill Leonard (R-Rancho Cucamonga) wants to hear any complaints your may have with denials of access to public records by state (not local) agencies. Leonard has an unusual prominence in defending both speech and open government rights. He is the author of the Leonard Law, which gives students in all high schools, public colleges and universities, and even their private counterparts the framework for suing to protect themselves from punishment for their exercise of constitutionally protected expression.

He is also a co-author of SCA 7, and has done his own public records access audit of local agencies in San Bernardino County. In turning his attention to the responsiveness of state agencies to California Public Records Act, Leonard asks you as soon as possible to pass on your anecdote-what you asked for, the agency's response-to Brian Cayton, his assistant: brian.cayton@asm.ca.gov. The results will be used for a new audit or perhaps corrective legislation.

   Comment: If you'd like to be among the first to learn what Assemblyman Leonard does with this information, ask to subscribe to his e-mail letter or otherwise to be given an update.

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CFAC opposes bills on vitals, SLAPPs (7/1/02)
SACRAMENTO: The California First Amendment Coalition has gone on record opposing the latest version of a bill to make indices to birth and death records secret, and also another bill to deny the protection of the anti-SLAPP motion to businesses sued for statements they make on their own activity as it affects public issues. Both SB 1614 (Speier) and SB 1651 (Kuehl) were to have been heard today in the Assembly Judiciary Committee, but that hearing was canceled. CFAC's letter opposing the Speier bill argues that its clampdown on the vital statistics indices is neither a necessary nor a relevant response to concerns about identity theft. The letter opposing the Kuehl bill calls that measure overkill as well, and suggests a more focused approach to what the sponsors view as frivolous appeals filed by business defendants to stall the progress of pro-consumer lawsuits.

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SCA 7 passes out of second committee (6/24/02)
In a hearing postponed from last Thursday because of the absence of a member, the Senate Committee on Constitutional Amendments today passed, on a 4-0 vote, the CFAC-sponsored bill to place on the ballot a state constitutional amendment creating a fundamental right to open government. Principal author Senator John Burton (D-San Francisco) assured the committee-from which Senator Tom McClintock (R-Thousand Oaks) was absent-that the concerns of Committee Chair Ray Haynes (R-Riverside) for protecting private parties' trade secrets would be carefully considered. The measure now goes to the Senate Appropriations Committee, where a Rule 28.8 waiver of hearing is expected, and then to the Floor.

    Comment: Unless the Legislature sets it back (rumors say it will), this Thursday, June 27 is the deadline for constitutional amendment bills to clear both houses in order to be placed on the November 5 ballot, and that deadline will clearly not be met. Haynes' cautions about trade secrets apparently mirror those of the insurance industry-the first time a private group has expressed concerns about SCA 7. Although that industry not among the first sectors one thinks of as being solicitous to protect trade secrets, these firms are closely watching a California Public Records Act decision by the First District Court of Appeal, now set for review by the California Supreme Court. Among the issues for review is the appellate court's conclusion that mandated reports by a carrier to the Insurance Commissioner showing how many auto insurance policies it sells in impoverished neighborhoods are not confidential as trade secrets.

Bakersfield paper sues for pay data (6/24/02)
After reporting the surprisingly high pay earned by some Kern County firefighters-due in large part to overtime-the Bakersfield Californian has now sued for access to records showing precisely who earned what.



Court: Student privacy law not for suits (6/24/02)
"The question presented is whether a student may sue a private university for damages under (the Civil Rights Act) to enforce provisions of the Family Educational Rights and Privacy Act of 1974, which prohibit the federal funding of educational institutions that have a policy or practice of releasing education records to unauthorized persons. We hold such an action foreclosed because the relevant provisions of FERPA create no personal rights to enforce " -Chief Justice William Rehnquist for the U.S. Supreme Court June 20 in Gonzaga University v. Doe .

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SCA 7 to be amended for 6/20 hearing (6/17/02)
The CFAC-sponsored constitutional sunshine amendment is undergoing several changes.

The amended version, in which form the bill will go to the Senate Constitutional Amendments Committee for hearing this Thursday, June 20, are responses to continued demands for clarification from various opponents.

Co-sponsored by the California First Amendment Coalition and the California Newspaper Publishers Association, the bill retains its original thrust in:

Declaring as a fundamental right under the California Constitution the people's ability to attend, observe and be heard in the meetings of elected and appointed officials and to inspect and get copies of records made or obtained in the course of official business, including information on the professional qualifications or official performance of elected officers and other officials with substantial responsibility for or control over governmental affairs;

Allowing the Legislature to pass laws limiting such access only to protect personal privacy, public safety or private property, to ensure the fair and effective administration of justice, or to provide for the preservation of public funds and resources; and

Requiring officials who apply these restrictions (other than ones to protect privacy) to justify why they do so at the time of denying access.

Amendments already taken to the bill as of its first hearing in the Senate Governmental Organization Committee include those that:

Require that litigation directed solely to obtain information concerning the official performance of police and other peace officers use the same court-supervised screening procedures now governing discovery motions employed in criminal or civil cases, but add that information gained in such disclosure litigation would not be admissible in lawsuits for damages or criminal prosecutions;

Expressly state that nothing in the new access rights would supersede the right to privacy guaranteed in Article I, Section 1 of the California Constitution;

Recognize the authority of the California Judicial Council to make rules paralleling those of the Legislature to protect the same interests, with respect to administrative meetings and records in the state court system, but clarify that SCA 7 access does not apply to court proceedings and their records (since trials, hearings and their records are already subject to access principles under constitutional and other law); and

Clarify that existing limits to access in state law will continue in force until amended, repealed or declared inconsistent with SCA 7 by the courts.

The current amendments are mostly fine-tuning and streamlining of the foregoing changes, and do the following:

Rearrange and condense several of the prior amendments;

Scale back the detailed provisions concerning access to peace officer performance information, eliminating language concerning the plaintiff's burden to show how the records sought are material to the employing department's supervision, and also eliminating the provision barring use of such information in lawsuits or prosecutions;

Allow the Legislature and Judicial Counsel to produce laws and rules limiting access to information to protect "personal privacy" instead of limiting access to any information about individuals submitted to or obtained by a government agency;

Change the phrase (indicating one of the interests for which limitations on access can be maintained) from "the fair and administration of justice" to "the fair and effective administration of law";

Allow agencies to deny access to a meeting or record where the information sought is a confidential communication between client between client and lawyer conveyed to obtain or provide legal advice or representation; and

When there is no client-lawyer confidentiality or personal privacy involved, require the agency in limiting access to make "particularized findings that a specified harm to the public interest cannot be averted by reasonable alternatives, and

that such denials shall not be "broader in scope or duration than necessary to avert the specified harm." This language is substituted for the previous requirement for "particularized findings that there is a substantial probability of serious harm to the public interest that the denial avert, and that this harm cannot otherwise be averted by reasonable alternatives, and shall be no broader in scope or longer in duration than necessary to avert the identified harm."

The resulting amended bill, if passed by the Constitutional Amendments Committee, would then proceed to the Senate Floor, where it must pass by a two-thirds vote. At this point it appears unlikely that SCA 7 could then pass the Assembly, or even be presented to the first Assembly Committee, by June 27. That date is the deadline set in the Legislature's Joint Rules for final passage of constitutional amendments intended to be placed on the November 5 statewide ballot. If SCA 7 were to fail to qualify with that rule, the next statewide ballot on which it could appear would be on March 5, 2003.

Comment: In any event it would be very helpful, if you would contact your Senator urging an Aye vote on SCA 7 when it reaches the full Senate for a vote.

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Federal court file sealing challenged (6/17/02)
CFAC has joined two newspapers in faulting casual secrecy in the U.S. District Court in Los Angeles.

In question is the court's persistent practice, now reflected in a Draft General Order, allowing the U.S. Attorney to file documents under seal without any justification for doing so.

While the court clerk has announced a new policy, effective next Monday, of requiring those wishing to file documents under seal to submit an application and proposed order (both under seal), the underlying practice has a number of troubling aspects, according to letters sent in recent months to court officers.

Written by attorneys Kelli Sager and Alonzo Wickers, Jr. for The Press-Enterprise in Riverside, an April 10 letter to Chief District Judge Consuelo B. Marshall noted that under controlling case law, the sealing of documents filed with the court must be justified by a showing by those requesting it that sealing serves a specific compelling interest, that that interest would probably be harmed without sealing, and that no alternatives to sealing would adequately protect that interest. The court itself must make specific findings on the record agreeing, based on these factors, that sealing is justified.

"This court's practice," the lawyers wrote, "does not comport with these constitutional mandates." They then asked Judge Marshall to issue an order to correct the situation, which they noted had resulted in several mysterious and frustrating experiences for the Press-Enterprise. In three corruption prosecutions since last fall against former public officials in San Bernardino County, a reporter has found the defendants' plea bargained agreements under seal, (despite, in two cases, contrary assurances by the judge involved), and has had to hire counsel formally to petition for unsealing. Only after querying the U.S. Attorney's office did the newspaper learn that the acceptance of documents under seal with no formalities or court orders had been a practice of some long standing, despite the absence of any published policy to that effect.

On May 1, the attorneys sent a second letter for The Press-Enterprise, this time to Clerk of Court Sherri Carter, expressing concerns about a draft general order supposedly responsive to the first letter. They criticized it as allowing easy sealing of certain presumptively sensitive documents, for example "cooperation plea agreements" such as those apparently reached in the San Bernardino corruption cases, without a case-by-case determination as to whether sealing was constitutionally justifiable. Other categories for which little or no public information would be required would be search warrant, grand jury and other material concerning pending criminal investigations; pleadings in criminal cases incorporating taxpayer information from the IRS, unless the information is sought exclusively for use at trial. Also, it addressed sealing on an all-or-nothing basis, instead of providing for narrowly focused confidentiality to allow access to anything whose public knowledge would not be harmful. Likewise troubling was the permitted blanket sealing of all pleadings in prosecutions "involving" juveniles, without any inquiry into harm or the lack of it. Finally, the draft order authorized sealing for an unlimited period of time, instead of limiting it to that period during which release would mean probable harm.

On May 23 the attorneys wrote Carter a supplemental letter, this time on behalf of the Los Angeles Times, highlighting two additional aspects of current practices that they said flew in the face of constitutional and common law:

"First, the Times is concerned that sealing orders, even when they are issued, often are not docketed or made available to the public in any form. Second, docket reports in this District don not provide the public with any information about the nature of the documents that are filed under seal. The filing of a sealed document customarily is reflected on the docket report simply as 'Notice of Documents Filed Under Seal,' without any description of the document. These two practices effectively deprive the public of a meaningful opportunity to challenge sealing orders, and thus infringe the public's First Amendment and common law rights of access to court documents."

In CFAC's letter, sent in support of the newspapers' efforts, Executive Director Kent Pollock told Judge Marshall:

"The public has a right and a need to monitor its system of justice, but public scrutiny of the courts is severely curtailed when records of plea bargains and other details are systematically kept under seal. The resulting secrecy undermines the court's credibility by eliminating the public's ability to scrutinize and understand its system of justice."

The court district announced late last week that a new Local Rule 79-5 concerning Documents Presented for Filing Under Seal is due to take effect next Monday, June 24, it states:

"L.R. 79-5 Confidential Court Records

"L.R. 79-5.1 Filing Under Seal - Procedures. No case or document shall be filed under seal without prior approval by the Court. If a filing under seal is requested, a written application and a proposed order shall be presented to the judge along with the document submitted for filing under seal. The original and judge's copy of the document shall be sealed in separate envelopes with a copy of the title page attached to the front of each envelope. Conformed copies need not be placed in sealed envelopes.

"L.R. 79-5.2 Confidential Court Records - Disclosure. No sealed or confidential record of the Court maintained by the Clerk shall be disclosed except upon written order of the Court.

"L.R. 79-5.3 Procedure for Disclosure of Confidential Court Records. An application for disclosure of sealed or confidential court records shall be made to the Court in writing and filed by the person seeking disclosure. The application shall set forth with particularity the need for specific information in such records. The procedures of L.R. 7-3 et seq. shall govern the hearing of any such application."

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Long FOIA fight sheds light on Reagan (6/10/02)
A reporter's decades-long struggle for FBI records yields documents that show former governor Ronald Reagan's involvement with the FBI's surveillance and harassment of campus activists at UC Berkeley in the 1960s.

"The Campus Files," an investigative San Francisco Chronicle series that began June 9, reports on Reagan's actions and is based in large part on information assembled after more than two decades of Freedom of Information Act (FOIA) requests Chronicle reporter Seth Rosenfeld, resistance by the FBI and litigation to enforce disclosure.

The Chronicle's summary of this process reveals, among other things, that:

"The FBI spent more than 15 years and $1 million trying to suppress records revealing its unlawful covert activities at the University of California and its campaign to fire then-UC President Clark Kerr.

"In 1981, Chronicle reporter Seth Rosenfeld, then a journalism student at UC Berkeley, sent the FBI a Freedom of Information Act request for 'any and all' records on more than 100 people, events and groups involved in controversies at UC over academic freedom, civil rights and national policy.

"The FOIA requires federal agencies to release public records in a timely way, so people know 'what their government is up to.' But the bureau refused to comply with the request. Only after a protracted legal fight that reached the U.S. Supreme Court did the FBI agree to release the withheld information.

"Totaling more than 200,000 pages, those papers constitute one of the single largest releases of FBI records under the FOIA. In court, the bureau estimated it cost more than $900,000 to process the request."

The account notes that FBI deletions from requested documents originally cloaked some highly controversial activities:

"The FBI excised much of a July 17, 1969, memo titled 'New Left and Extremist Movements,' on law enforcement grounds. The uncensored memo reveals that a top Reagan aide was discussing the governor's plans for 'the destruction of disruptive elements on California college

"The FBI at first deleted parts of a Jan. 16, 1967, teletype concerning a confidential request from Gov. Reagan for bureau information, claiming the deleted information concerned law enforcement. The fully released memo shows Reagan wanted political information on Kerr and UC regents.

"The FBI initially blacked out most of an Oct. 16, 1958, memo on the grounds that the deleted parts concerned a "law enforcement purpose." The fully released version shows the document actually concerned a plot to get Kerr fired because he was too liberal."

But to get the information, Rosenfeld had to file federal court suits three times over a period of ten years, a complex of litigation in the federal not settled until 1996, and leaving thousands of requested records still in the pipeline. A federal judge observed of the FBI's glacial pace in producing records, "At the FBI's current rate, processing of plaintiff's FOIA request will take 40 years."

Comment: Rosenfeld's career-long doggedness and the Chronicle's special report bring sharp focus to concerns over key policies of the current U.S. Department of Justice and of Attorney General John Ashcroft in particular: The encouragement to federal agencies to resist disclosure under FOIA if any legal theory can be used to justify it; and the recently announced commitment to edge up to, if not cross, the line of constitutionally permissible surveillance and penetration of religious and political groups thought to be fertile grounds for support of terrorism.

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Birth index bill gutted, to be reworked (6/10/02)
Senator Jackie Speier's bill on birth records indexes has abandoned specifics to get into the Assembly.

SB 1614 was amended May 30 to jettison all provisions but a generalized statement of legislative intent "to enact legislation to protect the confidentiality of birth and death record indices." In that form it was passed today by the bare minimum (21-16) on the Senate Floor. A Speier aide told CFAC there will be new content added soon, but the senator told her colleagues on the floor that the bill would be subject to revisitation by both policy and fiscal committees in the Senate.

Previous versions addressed Senator Speier's conviction that the state's production and sale of computerized master indexes to birth and death records facilitate identity theft. The San Mateo Democrat's response was to forbid public access to those "comprehensive" indexes, to limit access to "noncomprehensive" versions by viewing at a computer terminal without copying, and in the most recent version before the May 30 cutback, even proposing to bar those who had purchased index copies legally in the past from transferring their contents to others.

These provisions proved too costly for approval in the Senate Appropriations Committee, and increasingly attracted opposition from such sources as genealogists and adopted persons researching their own natural parentage. An op ed piece submitted to several California newspapers by Anita Walker Field, a board member of Bastard Nation, provides a forceful sample of the arguments against SB 1614's basic rationale.

"Adopted people who want to access the only true record of their births and their identities they too look at the birth and death indices," Field points out.

"And lots and lots of ordinary people - Mr. or Ms. Joe Citizen - who wander into a library and find that it's interesting to pore over old documents. It's fun! Good old American curiosity at work -- curiosity that helps us learn!

"The other hot button being used to get this bill passed is 'confidentiality.' Whose confidentiality, I ask? History is history! Facts are facts! Never forget -- these are public facts and always have been. They are not just events of private concern. The facts contained in the birth and death indices are important to our society as a whole."

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SCA 7 Passes First Committee, Faces Diverse Opposition (6/03/02)
Negotiations continue with a wide array of mostly government representatives over the language of the Constitutional Sunshine Amendment as it continues to wind its way through the legislative process after passing its first committee test by a solid 8-0 vote.

Amendments to SCA 7, the Constitutional Sunshine Amendment, were suggested at a meeting last Friday by a number of opponents whose central concern centers on whether the right to privacy is adequately protected by SCA 7.

Sen. John Burton's top staffer on SCA 7, Rodger Dillon, called the meeting so that Burton and the amendment's sponsors-CFAC and the California Newspaper Publishers Association-could hear objections to the proposal that would allow California voters in November to determine how open their government should be.

Participating in the meeting were representatives from the legislative counsel's office, Senate Privacy Committee, state attorney general's office, UC Davis, Los Angeles District Attorney's Office, the ACLU, police officers unions, the judicial council, the California League of Municipalities and California State Association of Counties. All expressed serious concerns over the legislation, but only the cities and counties have officially taken an opposition position on the measure.

Not unlike Gov. Gray Davis and his Republican opponent, Bill Simon, the organizations said they supported the concept of a constitutional amendment to ensure open government rights, but they disagreed with the legislation's language.

The meeting followed an 8-0 vote by the Senate Government Organization Committee to move the legislation on to the Senate Constitutional Amendments Committee, where a hearing will soon be scheduled.

Sen. Burton (D-San Francisco) told the committee that the amendment was a "work in progress" and said it was "important" to him to keep the measure moving. The committee gave Burton, the Capitol's most powerful legislator and the dominant force in the Senate, what he asked for, voting the measure out without a "No."

The eight senators voting to pass SCA 7 were Committee Vice Chair Ross Johnson (R-Irvine) and Senators James Brulte (R-Rancho Cucamonga), Wesley Chesbro (D-Arcata), Joseph Dunn (D-Garden Grove), Betty Karnette (D-Long Beach), Pete Knight (R-Palmdale), Michael Machado (D-Linden) and Nell Soto (D-Ontario).

Listed as "Absent, abstaining or not voting" were Committee Chair Edward Vincent (D-Inglewood) and Senators Maurice Johannessen (R-Redding), Bill Morrow (R-Oceanside), Jack O'Connell (D-San Luis Obispo) and Don Perata (D-Oakland).

The bill was voted on in an amended version that reflected many requests by potential opponents for clarification and reassurance, but continued to :

--declare a presumption that meetings and records concerning state and local government operations are public, including qualification and performance information about elected and ranking appointed public officials;

--restrict exceptions to those designed to protect personal privacy and private property, public safety, the fair and effective administration of justice, and public funds and resources;

--require officials citing these exceptions (other than privacy) to deny access to make "particularized findings" indicating what unavoidable harm would occur if access were granted; and

--prohibit using an exception any more broadly or for a longer period than necessary to avoid harm to the public or private interest in question.

 

Because of this continued emphasis on the presumption of access, lobbyists for the California League of Municipalities, the California State Association of Counties, the Los Angeles District Attorney's office and several other government entities appeared at the hearing to voice their views that SCA 7 is laudable in concept, but not deferential enough to longstanding protections for information and confidential proceedings.

 

The League of Municipalities, for example, insists among other things that the performance and qualifications of too many influential staff officials would be open to scrutiny, and that the amendment should be prospective only-leaving all current authority for closed meetings and records in place.

 

    Comment: The committee members voting Aye should be thanked and reinforced, and those not voting-for whatever reason-should be asked why by concerned constituents. If this committee were a preview of the whole, eight out of 13 votes is 61.5 percent: not bad by normal rules, but not enough to pass a constitutional amendment bill, which needs 2/3 of each house to reach the ballot.

 

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Medical Board: Settlement Sunshine Due (6/03/02)
The Medical Board of California wants to list doctors' malpractice settlements on the Internet.

The settlements are required by law to be reported to the board, which licenses, disciplines and sometimes de-licences the state's physicians and surgeons.

The board voted unanimously on May 11 (two members abstaining) to ask the Legislature to allow it to disclose all such settlements for the past five years on the Internet.

No settlement information is now disclosed in any manner, although the board does allow consumers to learn, through the Docfinder Page on its Web site, whether a specific licensee has been disciplined or been subjected to a malpractice judgment or arbitration award, a felony conviction, a major hospital disciplinary action or a disciplinary action in another state.

SB 1950 by Senator Liz Figueroa (D-Fremont) has been amended responsive to the board vote. It would require the board's Internet disclosures to include additional information concerning settlement of any "claim or action for damages" for death or personal injury allegedly caused by the physician and surgeon's negligence, error, or omission in practice, or rendering of unauthorized professional services.  As stated by the bill,

"The number and amounts of settlements of these sorts of claims or actions, each in the amount of thirty thousand dollars ($30,000) or more, have been entered into by the licensee during a 10-year period, these settlements in the possession, custody, or control of the board shall be disclosed throughout the term that the licensee holds a certificate to practice, accompanied by the average number of settlements and average amounts for the physician's or surgeon's specialty or subspecialty and disclaimers pursuant to subdivision (c) explaining the reasons that a physician or surgeon might settle a claim of this nature without being at fault."

This provision is also supported by the Consumers Union, the California Public Interest Research Group, the California Nurses Association and the Center for Public Interest Law. The last group states in its support letter,

"Since 1993, the board has disclosed medical malpractice judgments and arbitration awards to the public. Due to the disclosure requirement, however, judgments have been few and far between since then (as documented by the San Francisco Chronicle (January 6, 2002) and the San Diego Union-Tribute (April 29, 2002). Doctors and their lawyers have found numerous ways to evade the disclosure requirement. In 2001, the board received 1,337 malpractice reports. However, only 62 of those were arbitration awards, and only 50 of those were malpractice judgments - meaning all the rest (1,225 to be exact) were settlements, none of which have been disclosed to the public."

On the other hand, the opposing California Association of Professional Liability Insurers argues:

"Settlement of a lawsuit is not an indicator of physician incompetence. Consistently, the carriers see that physicians in surgical specialties, particularly neurosurgeons, cardiac surgeons and obstetricians are sued and settle far more frequently than other specialties. Some of the best practitioners in these high-risk specialties are sued and settle frequently. A California study showed that 17% of obstetricians- more than one in six-has been sued six times or more. An unintended consequence of SB 1950 is that it would create a further disincentive for specialists to take on particularly difficult cases involving a high risk of morbidity or mortality.

"It is wrong to assume that physicians settle only cases with some merit on the plaintiff's side. Many enter into the decision to settle, such as the availability of witnesses, the ability of those witnesses to convey information to a jury, the complexity of the medical issue, the relative sympathy for the plaintiff, the potential for adverse or biased media coverage, the relative economic impact on the physician in being away from his practice during trial, the emotional consequences to the physician in being away from his or her practice during trial, the emotional consequences to the physician in going to trial, and in some cases the exposure of the physician over the policy limits.

"More often than not, the assurance of confidentiality is the overriding factor facilitating settlement of a case. This is even truer when the physician believes the case against him or her is without merit."

The Medical Board's support of the settlement disclosure was prompted at least in large part by a California Public Records Act lawsuit by the San Francisco Chronicle earlier this year in which the board agreed to release settlement information, but was blocked by a restraining order obtained by the liability insurance companies.

SB 1950 passed the Senate last Wednesday on a 35-2 vote and is in the Assembly awaiting assignment to committee.

Comment: As it happens, a Chronicle columnist on medical matters, Dr. Alan Eshleman, wrote a commentary on the issue published on the day after the Senate vote. In "My Permanent Record" he notes how his positive contribution to a patient's care put his name in the chain of responsibility cited in an eventual lawsuit and settlement of which he was reminded only recently-about 20 years after the event-when his medical group had to apply for a new malpractice insurance policy. Dr. Eshleman says his role was to discover a malignant cancer that others had missed, but neither the claim nor its settlement made that distinction clear.

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Supervisors Hear Sunshine Riposte (6/03/02)

A "Sunshine Coalition" got an encouraging hearing from the Los Angeles County Board of Supervisors last week.

The group, an informal network of journalists and other observers of board meetings, has submitted a proposed sunshine ordinance for board adoption, specifying a number of improvements to policies on access to meetings of the board and other county bodies and to public records. The board's initial reaction was to ask the lawyers defending it in a Brown Act lawsuit brought by the Los Angeles Times and Richard Mckee (challenging several alleged violations sparked by a union ballot measure campaign) to act as Special Counsel and write an analysis of the sunshine advocates' proposal.

That report, written by attorney J. Kenneth Brown, got a cool reception from Board Chair Zev Yaroslavsky, who felt its analysis had not answered all the questions that supervisors had about the proposals. The board then gave the proponents, the Los Angeles County Sunshine Coalition (LACSC), the chance to respond to Brown's submittal, and the group invited Terry Francke, general counsel of the California First Amendment Coalition, to appear for that purpose at the board's meeting last Tuesday.

Francke was given a patient (90-minute) reception at the board meeting, submitted a 42-page Response to Special Counsel, and summarized it by providing supervisors with a 12-point explanation of the LACSC's proposals, addressing in particular each item that Brown had found fault with or appeared to slight.

Only one matter prompted immediate resistance from the board: a proposal to provide public access to, and opportunity to comment on, proposed collective bargaining agreements prior to board adoption. Yaroslavsky and Supervisor Yvonne Brathwaite Burke objected that such a procedure would make good faith and practicable bargaining impossible, since by the time such agreements were brought to the board for ratification the county was already legally bound to them by virtue of acceptance by the county's bargaining representatives.

Yaroslavsky found the labor agreement proposal so dubious that he challenged the LACSC to find any other local government body that made such a commitment. LACSC spokesperson Karen Okamb told Yaroslavsky that the proposed ordinance was "living, breathing document, not etched in stone," and that this and other items were subject to further negotiation.

An extended process of that kind seemed likely. Yaroslavsky ordered the matter to be calendared for further discussion at its June 18 meeting, which has since been put back to June 25.

Meanwhile LACSC's general thrust for improved access was supported after Francke's report by the testimony of two known and respected public issue advocates who were returning to the witness table after a number of frustrations in getting public records, already appealed to the board. In particular Cesar Portillo of the AIDS Healthcare Foundation complained, as noted in a report by Okamb, that

"even though the Board of Supervisors had directed County Counsel to take care of his California Public Records Act problem, no one had responded. You will remember that Cesar had to pay $330 for a 7-page CPRA request that took 90 days to fill. After he testified on April 2, the board ordered the problem fixed. Despite an initial contact that day and a follow-up memo sent by Cesar April 3, nothing had been done between then and May 28."

Yaroslavsky, plainly irritated with the continuing lack of response to Portillo's complaint, ordered that a report be presented at tomorrow's meeting showing that the problem had been resolved. If the county could not address such concrete and obvious access obstacles, he said, it would have no credibility in taking on new commitments.

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Vital Statistics Bill Calls for Prior Restraint (6/03/02)
A bill barring release of birth and death record indexes has been amended to cover the private sector.

SB 1614 by Senator Jackie Speier (D-San Mateo) began as a measure to restrict the state's release of such indexes, useful to genealogists and others, for commercial purposes. Speier expressed concerns that the information could be used to facilitate identity theft, although there is little indication that this has been the case.

The bill has been amended several times and now is in the Senate Appropriations Committee, held in the Suspense File as a bill that would require an expenditure of more than $150,000. It was set for committee action today.

As of its May 15 amendments, SB 1614 goes beyond restrictions on what government may release and would prohibit private persons and entities from transferring information they have lawfully acquired. It states, in pertinent part:

"An individual, corporation, or other business entity that has purchased a comprehensive index prepared by the State Registrar from the State Registrar prior to December 31, 2001, may not release any of the information contained therein to a third party. The (Department of Health Services) may assess a civil penalty in the amount of____ dollars ($____) upon any individual, corporation, or other business entity that violates this subdivision."

 

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CFAC's Francke Advises LA Supes on Sunshine Act

CFAC General Counsel Terry Francke told Los Angeles County Supervisors Tuesday that a Sunshine Act proposed by the LA County Sunshine Coalition is a modest proposal when compared to ordinances adopted by several other local governments and that the ordinance should be negotiated and adopted.

Francke appeared before the supervisors to deliver CFAC's legal analysis of the ordinance in the wake of an analysis done for the supervisors by Special Counsel J. Kenneth Brown, who is defending the county is an open government suit brought by CFAC President Rich McKee and the Los Angeles Times.

Brown, who was paid $25,000 to analyze the ordinance, concluded that the Sunshine Act was unnecessary and recommended against its adoption. Francke, whose analysis was provided free of charge, disputed many of Brown's conclusions as being inconsistent with the facts and existing law.

Francke dismissed some criticism that his analysis was not objective because he is an advocate for government transparency.

"I can hardly deny a bias in favor of the Los Angeles County Sunshine Coalition's desire for improved access policies, and my comments should be understood accordingly as those of a sympathetic but independently informed observer." Francke said. "My identification with the interests of the LACSC is, however, no greater than that of Special Counsel Brown with the interests of the Board, and may be less so."

Francke's legal analysis was starkly different from Brown's report, comparing the LA Sunshine Act to existing statewide open government laws as well as to similar local ordinances adopted in San Francisco and Contra Costa County.

"A sunshine ordinance is simply a local regulatory response, authorized by statute, to sensed needs for clarification, particularity and emphasis," Francke's report said. "What immediately strikes one familiar with the existing county ordinances mentioned above is the comparative brevity of the Proposed Act under consideration. To take the extreme example, the San Francisco Ordinance is more than five times the length, in word count, of the Proposed Act, and comprises 44 sections as opposed to the latter's 15. Even the Better Government Ordinance in Contra Costa County, which has not been expanded since adoption, is more than twice the length of the Proposed Act."

He smilingly attributed the ordinance's brevity to the fact that he hadn't been involved in its drafting.

Francke highlighted Brown's finding that there was no need to alter the county's policy on agenda listings for closed session topics despite the fact that some critics have complained about the listings' vagueness.

For example, Francke said, twice the board listed closed session called to discuss the county counsel's performance as simply an evaluation of a "department head." The Brown Act indicates that such a notice should "Specify position title of employee being reviewed."

"Failure to do so suggests a calculated assumptionthat nondisclosure of such specifics would not provoke a lawsuit alleging a failure to provide adequate notice," Francke noted. "Since in the ordinary course of events Brown Act litigation of any kind is vanishingly rare, this assumption is not an unrealistic one, but it unmistakably disregards the intent of the Brown Act."

The Sunshine Act would also require disclosure of litigation settlements and collective bargaining agreements prior to board approval, but Brown's report cautions that a law requiring such disclosure "could be confusing or misleading" since the proposals might change at the last minute. Francke was sharply critical of Brown's position:

"To the extent that such an outcome is a real concern, it would seem easily minimized by labeling the document in question as "draft" or "tentative" and subject to revision prior to final approval. Surely Special Counsel is not suggesting that the public has no legitimate role to play in making its views known on matters that are every bit as consequential for county resources and even county policy as a proposed ordinance or contract. But as the rules now stand, the public is precisely so excluded, and that is the practice that Special Counsel recommends to keep."

The Sunshine Act also requires protection for whistleblowers who disclose to the public information that was "improperly" discussed in closed session, but Brown is opposed to the action and wants such disclosures "subject to retribution, censure or fine" because "whether something was improperly discussed should not be determined by a member of the legislative body since the opinion and perspective of the member may vary as to what is proper or improper."

Francke countered:

" This provision does not propose to immunize improper disclosures-only the disclosure of improprieties. CFAC is unaware of any specific attempts by County bodies to harass or punish those who cry foul on real Brown Act violations. But the best evidence that this proposal may be needed is Special Counsel's conviction that it should not be adopted."

For a pdf file of Francke's complete report, click here.

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Homeowners Threaten Suit Against Water Company
The San Antonio Homeowners Association is threatening to bring a public access lawsuit against the San Antonio Water Company, which was sued earlier this month by CFAC for open government law violations.

According to a Monday Los Angeles Times story , the homeowners association will seek to force the San Antonio Water Co. to rescind some board appointments made during meetings not open to the general public, which is the policy of the water company's board.

The association said it is attempting to avoid filing a lawsuit. "We don't want to sue them. We just like them to address the issues we presented," said Tina Nelson, vice president of the homeowner's association. ""The mayor thinks it is his water company."

The city and water company contend that the water company is a private business even though the city owns a majority of shares in the company and appoints its board of directors.

CFAC filed a lawsuit earlier this month stemming from a March 21 meeting of the water company's board of directors that was closed off to members of the public. It was at that meeting that a new board was appointed. On March 25, CFAC President Richard McKee sent the water company a "cure and correct" letter demanding that actions taken during the March 21 meeting be voided.

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Governor and Opponent Support SCA 7 Concept (5/20/02)
Both Gov. Gray Davis and his Republican opponent, Bill Simon, support the concept of a state constitutional amendment to bolster the public's right to open government, but both stopped short of supporting SCA 7, the Sunshine Amendment to the state constitution.

The two candidates made the statements last week during separate appearances before editors attending the annual California Society of Newspaper Editors convention in Anaheim. At the meeting, CSNE voted unanimously to support SCA 7.

In response to a question, Gov. Davis said he supports "the concept" of establishing a state constitutional right to open government. But he said he could not sign SCA 7 in its present form, and no one corrected him by pointing out that SCA 7 will never go to his desk for approval. If SCA 7 survives the legislative process, it goes directly to the ballot where the people will decide how open their government should be.

In a brief conversation following his appearance, the governor said his staff hadn't had time to fully analyze SCA 7 but that he believed the legislation "needs a lot of work" before it would be acceptable to him.

Simon said he supports a constitutional amendment "similar" to SCA 7, but didn't elaborate on the differences. He enthusiastically told the editors that "openness in government" and "a focus on ideas" are "fundamental" to the administration he would establish in Sacramento.

"A campaign and a government of ideas must be a government that is open to the people," Simon said. "The example that Gov. Davis has set has made it clear to me that secrecy in government has got to stop. Let the sunshine of truth pierce the dark clouds of corruption, conflict and denial."

Editors attending the convention signed the following letter urging the Legislature to pass SCA 7 so the public can vote on the matter:

"The California Society of Newspaper Editors enthusiastically supports SCA 7, the Constitutional Sunshine Amendment, to ensure that government in California is conducted in the open where the public can understand and scrutinize how its elected and appointed officials are performing.

"Decades ago, when the California Legislature passed the Ralph M. Brown Act, it declared, "The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.

"Since then, California's open government laws have been weakened by court interpretations and follow-up legislation. Laws requiring open discussions, release of information to the public, posting of agendas in a timely and accurate fashion and the ability of the public to comment on government actions before they are taken have too often been ignored by the people's representatives.

"In 1998, a legislative task force declared that the California Public Records Act had been "interpreted, reinterpreted and fiddled with to the point that it has become of little appreciable value to the public."

"Journalists have a difficult time obtaining information to accurately reflect the actions of government. And even more importantly, the people who elected government officials too frequently are shut out of the process and unable to participate in government in a meaningful way.

"The Constitutional Sunshine Amendment would strengthen the public's right to access to government meetings and records as a clearly established constitutional provision. Thus, all state laws and administrative regulations would be required to conform to the provisions of the amendment. Also, the Constitutional Sunshine Amendment requires government agencies to publicly explain and justify any exception to open government that the agency intends to claim.

"CSNE urges the Legislature to put the Constitutional Sunshine Amendment on the ballot in November to let the people decide how open their government should be."

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Newspaper Brings Suit to Obtain Cell Phone Records
The Sacramento Valley Mirror has filed a lawsuit in Glenn County to force disclosure of the names and numbers of cellular telephones paid for by the county's court system for its personnel.

The lawsuit asks the court to compel compliance with the California Public Records Act by ordering the county "to produce for inspection and copying the names and business cell phone numbers" of court personnel who have cell phones administered through Glenn County at taxpayer expense.

Sacramento Valley Mirror Publisher Tim Crews said he filed the suit after growing weary of denials for these and other records he believes are obviously public records. Is quest for the records began in early January and has been the subject of a number of discussions by county administrators and the county board of supervisors, but the records have not been released.

Carolan Duffy, of the Davis Wright Tremain law firm, represents The Valley Mirror.

In late January, County Counsel Belinda Blacketer wrote a letter to Crews declaring that "many of these employees' cell phone numbers should not be made public because they are considered an essential function of the departments' operations."

Her letter put forth six hypothetical situations for which access, in her opinion, would not be in the public's interest, three of them essentially the same: Public employees should not be bothered 24 hours a day by members of the public who call their cell phones.

"Another pondered whether the public agency will have to pay overtime for the pain of listening to a citizen caller during the employee's off hours," according to the lawsuit. "And two others posed scenarios where citizen callers lure emergency service employees away from their duties-one even suggested a caller might lure deputies 'to a lonely corner of the county' and 'hurt them.'"

The letter didn't specify any specific exemptions to the California Public Records Act that would preclude release of the information.

"The Mirror and the public are and will continue to be denied access to information regarding matters of fundamental public interest concerning the county's handling of its business as that business relates to the courts unless and until the Court denounces Glenn County's policy and practiceof denying access to the records," the lawsuit contends.

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SCA 7 Set for First Hearing Tuesday
The constitutional sunshine amendment is getting clarified to relieve concerns, needs support letters. The bill will be presented in a hearing of the Senate Committee on Governmental Organization on Tuesday, May 21, beginning at 9:30 a.m. in Room 3191.

It was originally to have been heard on April 23, but was held back to allow amendments to be negotiated in response to concerns expressed by a variety of governmental and other parties. While that process is not necessarily entirely complete, as of today most reservations and requests for clarification seem to have been accommodated in the working amended text.

As spelled out in that text, changes likely to be accepted are as follows:

The judicial branch is expressly accounted for in two ways. The Judicial Council, which is the policy-making body governing the state's courts, is mentioned in parallel to the Legislature as being permitted to adopt limits on access to meetings and records of the court administrative bureaucracy, but only to protect certain specified interests. Secondly, SCA 7 rules and procedures would not apply to actual court proceedings and files, access to which is already governed by other constitutional, statutory and common law provisions as well as rules of court. SCA 7 would apply, however, to court governance entities like the Judicial Council and the Administrative Office of the Courts.

The basic access right would include "information regarding the official performance or qualifications of elected or appointed officials who have or appear to the public to have substantial responsibility or control over the conduct of governmental affairs." This formulation drops the term "fitness" in favor of "official performance" in response to concerns that "fitness" might suggest access to medical files or psychological evaluations or other personal, subjective considerations not affecting performance. The other new language, borrowed from a landmark U.S. Supreme Court case, Rosenblatt v. Baer, defining who is a public official appropriately exposed to greater and more vigorous criticism, helps clarify that ordinary government employees would not be exposed to any new level of public scrutiny.

Access to peace officer personnel files would be subject to whatever procedural requirements the Legislature provides by statute. Currently, that would mean the "Pitchess" motion procedure required to be used by criminal defendants or civil lawsuit plaintiffs seeking such records in court-supervised discovery. In that procedure the court reviews the requested personnel files privately and decides what information is relevant to the requester's need for evidence. The SCA 7 amendment would allow information requesters to sue for such records directly in the public interest, but would require them to show that the information was material to the public interest in "monitoring the supervisory responsibility of the employer" and that lack of the records would "substantially undermine" the public's ability to do such monitoring. If such a public interest suit were successful in obtaining access to information from an officer's file, it could not be used as evidence in a criminal prosecution or a damages suit unless the court decided that the restriction would be a denial of due process.

The constitutional right to privacy already provided by Article I, Section 1 would be expressly mentioned as not being superseded by SCA 7. Private individuals would also be eligible for privacy protection created by the Legislature or Judicial Council, except when they become candidates for electoral office or applicants for positions of substantial authority or influence as defined in the "Rosenblatt" language mentioned earlier. In that case access would be guaranteed not to records showing their "fitness" (medical conditions, etc.) but rather their "qualifications" (experience, education, certification, etc.).

SCA 7 would not automatically cancel or invalidate existing laws or court rules. They would remain effective until repealed, amended or determined by a court to be inconsistent with SCA 7, i.e., unconstitutional.

Minor clarifications include specifying that the public's right is not to "copy" but to "obtain" a copy of public records; that privacy is a constitutional right of "people" whether "citizens" or not; and that the Legislature, in order to protect certain listed interests, may limit access to governmental "meetings and records," not "information."

Comment: One letter, three copies. Four envelopes, four stamps. CFAC members and others seeking a fundamental change in the ranking of open government in the state's priorities can help it happen with those modest resources and a few minutes' time. As an organization, CFAC and its co-sponsor for SCA 7, the California Newspaper Publishers Association, have done all they can, and at this critical juncture there is no substitute for old fashioned citizen letter correspondence (e-mail doesn't work for this). Print and use the template letter

to voice your own views, and note the four recipients: Senator John Burton, the principal author; the first committee consultant, to ensure that your support is noted in the record from now on; and your Senator and Assembly Member, who will be asked to vote on SCA 7 quite soon, if all goes well.

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Oakland Discipline Records Suit Stymied
Sidetracked procedurally from getting all it sought, a newspaper now hopes to recoup attorney's fees.

On May 1 the California Supreme Court declined to review a decision of the First District Court of Appeal that abruptly ended a public records lawsuit on unusual procedural grounds. The appellate court ruled that the Oakland Tribune was tardy in seeking review of a trial court decision-pegging the deadline to a notice from the opposing party rather than from the trial court clerk.

This unique reading of the procedural statute led a wide variety of others using the California Public Records Act, including the California First Amendment Coalition, the California Newspaper Publishers Association, several newspaper companies and the Associated Press, to file an amicus brief supporting the Tribune in seeking supreme court review.

Now that the case on the merits is closed, the Tribune and its parent company, Alameda Newspaper Group, will be fighting for recovery its of attorney's fees, according to a May 3 story May 3 story in the San Francisco Recorder.

The underlying issue is access to records showing what happened to prompt the city of Oakland to suspend a longtime friend of Mayor Jerry Brown for 21 days without pay in connection with an accusation of sexual harassment.

Jacques Barzaghi, a confidant since Brown's days as governor, is on the city payroll and was named in a claim by a former city trade officer who has since settled for a reported $50,000. The woman indicated that Barzaghi paid unwelcome verbal attention to her on a trip the two took to Mexico on city business.

The Tribune sought, and eventually had to sue to get, records concerning just what happened. It obtained some records concerning Barzaghi's suspension, but the newspaper was pursuing an investigative report performed by an outside law firm hired by the city when it hit the procedural snag.

Superior Court Judge Judith Ford had ruled that the report was subject to the attorney-client privilege, and the Tribune was hoping to use discovery to show that the report had been shared with Barzaghi, a fact which it believed would amount to a waiver of the privilege, which ordinarily would encompass only the city itself. But the city took the contrary position and Judge Ford failed to sustain the discovery request. That was the principal issue for review when the court issued its untimeliness ruling.

City Attorney John Russo told the Recorder he would fight any request for fees beyond the point last summer when the Tribune got part of what it sought. The city reportedly has spent about $100,000 of its own in litigating to keep the investigative report under wraps, and the Tribune is said to be seeking at least that much to cover its attorney's fees.

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Bill on Vital Statistics Secrecy Worsens (5/6/02)
Senator Speier's SB 1614 now makes indexes to birth and death records unavailable for copying.

As introduced, the bill would have prevented sale of indexes to these and real property title records unavailable to the public for "commercial purposes."

Senator Speier (D-San Mateo) contends that the previous availability of these indexes for sale by the Department of Health Services facilitates identity theft, although there appears to be no evidence of that phenomenon.

After a series of complex amendments in mid- and late April, the bill now addresses birth and death records indexes only, but allows the public to consult them only by visiting county offices and view them (no copies permitted).

The "noncomprehensive index" format open to public inspection would be developed by the State Registrar to exclude information that could be put to mischievous or privacy-invading use.

Even for this limited access, viewers would be required to sign a form "certifying under penalty of perjury that the information he or she views will not be used for criminal purposes."

Comment: Would a would-be criminal hesitate to commit perjury to acquire the means to commit other crime?

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Congressman Leads Anti-Secrecy Charge (4/29/02)
A Southern California Republican in the last term of his congressional career has introduced a bill to reverse President Bush's order barring release of presidential papers from the Reagan Administration.

The measure, H.R. 4187, was introduced by Rep. Steve Horn of California's 38th Congressional District, which includes a mostly coastal strip from Downey to Long Beach. He chairs the Subcommittee on Intergovernmental Relations of the House Committee on Government Reform.

Rep. Dan Burton of Indiana, chair of the full committee, plus four other Republicans (including Doug Ose of California's 3rd District (Sacramento to Red Bluff), have joined 21 House Democrats in co-sponsoring the measure.

But although Republicans are in the forefront of this bill, which would clarify that neither the White House nor prior Presidents may veto release of the papers of prior administrations, it's been predicted that other more powerful Republicans will probably intervene to protect President Bush-and some of his key advisors. An April 24 article in the online Congressional news service The Hill observes:

"Though the legislation will pass the House Government Reform Committee, it is very likely the chamber's GOP leaders will attempt to kill the measure to avoid embarrassing the president."

The article notes that if the bill were successful, it would

"re-establish the Presidential Records Act of 1978, which called for a president's records to enter the public domain 12 years after the end of that administration. Those who would be impacted by the legislation include Mitch Daniels, director of the Office of Management and Budget, who was the White House political director under Reagan. In addition, Vice President Dick Cheney and Secretary of State Colin Powell, among others, were top advisors to President George H.W. Bush."

Last fall President Bush announced a new White House interpretation of the 1978 law, giving either the sitting chief executive or the former president in question the authority to disapprove release of presidential papers-which include documentation of cabinet and other executive branch offices as well.

Under that authority Bush has ordered withholding of access to some 68,000 pages of confidential communications between former President Ronald Reagan and his advisors.

Rep. Horn, a former president of Cal State Long Beach, was elected to his first congressional term in 1992 and has recently announced that he will not seek reelection.

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Bill Would Require ID, Reason for Access (4/29/02)
Those requesting access to state or local agency information under the California Public Records Act would be required to provide documentation of their identity and purpose under a bill that, for predictable reasons, has prompted so much opposition it may be taken off track for this session.

AB 2941 by Assembly Member Patricia Wiggins (D-Santa Rosa, as amended April 11 would allow a person access to a public record

"provided the following conditions have been met:
(1) The person requesting the information provides proof of his or her identity with one or more of the following forms of personal identification:
(A) California or other state driver's license.
(B) California or other state identification card.
(C) Military identification.
(D) Governmental identification.
(2) The person requesting the information provides documentation of the reason that the information is being requested. Documentation may include any of the following:
(A) Police report or document.
(B) Insurance report or document.
(C) Court report or document."

Wiggins aide Reichel Feicht told CFAC that the bill "may quietly disappear" for more careful examination in an interim hearing this fall, based on objections by the California Newspaper Publishers Association and others.

She said the bill was prompted by the experience of a Wiggins constituent who was involved in a minor vehicular scrape in a parking lot-minor enough that she did not exchange insurance information with the other driver. That person did get her license plate number and with it, her name from the Department of Motor Vehicles. With that information he used other resources to get her address, and was persistent enough thereafter to prompt the constituent to get a restraining order against his attentions, Reichel said.

AB 2941 as introduced therefore focused on releases of information by the DMV, but then was amended to affect all records of all agencies sought by all requesters.

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Bill Would Extend Access Law to E-mail (4/29/02)
|E-mail would be expressly included in the field of documents accessible under the California Public Records Act in a bill introduced February 14 in the Assembly.

AB 1962 by Assembly Member Dennis Hollingsworth (R-Murrieta) would include in the definition of "writings" that are subject to the Act documents in the form of "electronic mail, electronic correspondence, and facsimile transmissions."

It would similarly extend the definition of a "writing" in the Evidence Code.

Attorney Richard J. Ackerman, litigation counsel for the United States Justice Foundation in Escondido, informed CFAC that the bill results from a lawsuit he brought against the City of Corona in late 1999, and that he drafted the bill's language accordingly.

As reported in FLASH at the time, Ackerman filed suit in Riverside Superior Court November 15, seeking a preliminary injunction against destruction of electronic mail until the court could definitively rule on whether such documents must be retained under the same state law requirements as paper records-for cities, under Government Code Section 39040, for at least two years.

Ackerman's concern was twofold: the integrity of the First Amendment right to petition for the redress of grievances and the avoidance of destruction or, as lawyers say, "spoliation" of evidence.

As to the first issue, Ackerman's court papers alleged that city manager Bill Workman had recently "admitted to deleting/destroying e-mail communications relating to traffic snarls and urban development issues," forwarding angry citizens' complaints to the city council and the public works department, then erasing them from his computer -leaving them only in a temporary backup system maintained by the city and automatically purged after 90 days.

Furthermore, the procedure meant that e-mail communications of all kinds-internal as well as external-that might contain information relevant to or at least discoverable in litigation by or against the city had a very short shelf life, and could frustrate the fact-seeking process in lawsuits or other disputes.

"A governmental agency cannot merely hit the delete button on First Amendment petitions or grievances nor on what may constitute evidence in a pending civil action or pending civil administrative review processes regarding development plans and the like," Ackerman argued.

The controversy began when it became known that a number of irate drivers had sent e-mail to the city complaining of severe traffic congestion-an issue material to an already pending class action filed by Ackerman alleging the city's failure to control growth.

The city tried to settle the e-mail suit by offering to update its records retention policies, but Ackerman found several aspects of the proposed new guidelines less than satisfactory. For example, the city drafted a quick-reference guide to staff helping to clarify which records should be presumed subject to retention as official records and which should not. The guide indicated two categories that "may" constitute official records, including:

-- "E-mail providing key substantive comments on a draft action memorandum, if the e-mail message adds to a proper understanding of the formulation or execution of official action," or

-- "E-mail providing documentation of significant official decisions and commitments reached orally (person-to-person, by telecommunications, or in conference) and not otherwise documented in official files."

Ackerman believed such documents not only "may" but do constitute retainable official records. In addition, Ackerman questioned the reference guide's inclusion, in the category of e-mail messages that "do not" constitute official records, "Documents created by employees on work-related topics, such as cover notes and routing slips that merely facilitate the flow of a document from one party to another." He contended that for purposes of documenting chain of custody and other concerns, a record of who sent what to whom, when and with what comments, can be vital.

Finally, Ackerman questioned the proposed retention procedures themselves, under which individual employees would be responsible for judging whether an e-mail constituted an "Official City Record, as defined by the City clerk," and if the definition applied, would be responsible for printing a paper record for storage. Otherwise, employees could continue to delete the messages from their files, to be purged from the central system after 90 days.

The problem with this approach, he noted, was that too many e-mails are likely to be dismissed by individual employees as not worth keeping, and even those permanently kept would be on paper, thus losing the electronic searchability of the original.

Ackerman says the suit was settled when the city agreed to treat e-mails under the same records retention policy as paper documents, regardless of their content.

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SCA 7's First Committee Hearing Delayed (4/22/02)
The first hearing for Senate Constitutional Amendment 7 (SCA 7), originally set for tomorrow, April 23 in the Senate Governmental Organization Committee, has been postponed to a date not yet announced.

Although the measure's principal author, Senate President pro Tempore John Burton (D-San Francisco) did not give a reason for the delay, his staff apparently wants to resolve several concerns from those seeking certain amendments and to deal with objections from others at being included.

The League of California Cities, the California State Association of Counties and various peace officer organizations are known to be seeking amendments to avoid what they see as undesirable effects of the law, which would declare a constitutional right of citizens to attend and be heard in meetings of government bodies and to inspect and obtain copies of public records.

In addition, although it has taken no public stand yet on the issue, the entire judicial branch apparently wants to be excluded from the reach of SCA 7. Under other laws, court proceedings and records are already presumed to be accessible to the public. But SCA 7 would mandate access to a variety of other judicial branch bodies and their records, including the Judicial Council, the Commission on Judicial Appointments, the Commission on Judicial Performance and the State Bar Board of Governors.

Many of these groups' meetings are in fact already public, but not as a matter of state constitutional law. SCA 7 would also for the first time presume access to a bodies providing local judicial administration, including superior court governing bodies, and to records of the state court system's central housekeeping agency, the San Francisco-based Administrative Office of the Courts.

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Sunshine Amendment Set For Hearing (4/15/02)
A bill to give California voters the chance to enact a constitutional right to open government has been set for its first legislative hearing, and CFAC is asking its members to urge legislators to support the measure.

The hearing is scheduled for 9:30 a.m. Tuesday, April 23, before the Senate Governmental Organization Committee, Room 3191, at the state capitol building.

“Now is the time for all CFAC members and other open government advocates to express their support for Sunshine Amendment,” said CFAC Executive Director Kent Pollock. “It's imperative that lawmakers see widespread, grassroots support for the effort if it is to succeed.”

He urged all CFAC members to contact their legislators and members of the Senate Government Organization Committee before the hearing takes place.  “Lobbyists have told us that most committee members will already have made up their minds prior to the hearing, so we’ve got to get support messages to them quickly,” Pollock said.

More information about the Sunshine Amendment, including CFAC answers to concerns expressed by the state’s cities and counties, is available on the Web at SCA7 Opposition Concerns

As of today, neither the League of California Cities nor the California State Association of Counties have submitted official letters of opposition, but the organizations have been circulating statements of concern among their members. You can view those concerns and CFAC responses by clicking HERE.

The bill must receive a super majority in both the Senate and House by June 27 in order to qualify for the November ballot. There has been little official opposition to date, but behind the scenes there has been concerns expressed by cities, counties and some law enforcement factions that the Sunshine Amendment would overturn longstanding government procedures regarding access to government meetings and records.

 CFAC President Rich McKee disputed that contention. “The really significant thing the Sunshine Amendment would do is make it much more difficult for government agencies to abuse open government regulations,” McKee said. “Those agencies that embrace the concept of open government would experience no difference in their operations under the Sunshine Amendment.”

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CFAC Opposes Bill on Sale of Indexes (4/15/02)
The California First Amendment Coalition has announced its opposition to a bill prohibiting state and local agencies from releasing indexes or compilations of vital statistics and other public records for commercial purposes.

The bill is a reaction to Speier’s discovery late last year 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 she said could be exploited by identity thieves.

The bill was set for its first hearing April 23 before the Senate Judiciary Committee, but the hearing was postponed on request from Speier.

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 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 Speier 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 the governor responded by issuing an executive order directing the department to suspend releasing birth and death records to private companies for 45 days. During that period, the department was directed to “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.”

CFAC's SB1614 Opposition Letter observes that:

              • There is simply no evidence that identity thieves use governmental release of public records as a means of acquiring information for criminal purposes.   The most current and complete study of how personal data are stolen cites such practices as literal theft (by friends, relatives, fellow workers or strangers) of wallets, purses or mail, or fraudulent address changes.

            • Thieves are the last types that would buy from a state agency data they can get covertly otherwise, and if they wanted to acquire data from the government under SB 1614, thieves would naturally deny that their purpose was “commercial.”

            • The fact that information could conceivably be used for criminal purposes does not justify removing it from the marketplace. Information from public records has far too many lawful and productive uses to warrant outright suppression.

            • Risk-targeted regulations, rather than access-slaying legislation, could greatly reduce the problems cited as troubling.  For example, requiring financial institutions to switch to passwords other than mothers’ maiden names would provide a reliable substitute.  Or demanding robust identification from those who purchase vital statistics indexes, and requiring them to demand it from those they sell to or share it with, could deter abuses and hold purchasers for resale accountable for abuses downstream.

“In summary,” says CFAC's SB1614 opposition letter, “CFAC opposes SB 1614 in its present form as a curtailment of lawful and productive conduct of honest people based on speculation rather than evidence, and moreover one that can be expected to have little if any disruptive effect on the conduct of those who are, after all, professional liars and thieves.”

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California Access Gets Low Grade (4/15/02)
California’s Public Records Act rates a C minus grade in comparison to state information access laws nationwide and ranks 21st among the statutes of the other 50 states and the District of Columbia, according to a study by the Chicago-based Better Government Association.

The BGA study, compiled by a team of attorneys in an analysis apparently never before attempted, does not address what information is public or private in various states.  Instead, it focuses on the procedural advantages and “teeth” provided citizens to exercise and enforce their state’s access laws, using a point system to score each statute against five criteria of effectiveness.

As noted in the detailed explanation of methodology,

“Among all 51 statutes, the BGA found provisions it feels would best promote the policy of requiring open government records.  However, the BGA was unable to find a statute that exhibited all five of these provisions. In this study, the highest grade that was given out was a ‘B,’ which was earned by Nebraska.

“The following is an example of an ‘A’ statute:

“Response Time: An agency that receives in writing a request to examine any public records shall respond to such a request within seven working days.   The response shall either communicate that access to the record will be granted or that access is denied.

“Appeals: Upon any denial of access to a government record, the requestor may appeal that denial to any of the following: the district court of competent jurisdiction, an open records commission, the Attorney General or the head of agency that has denied access.

“Expediency: A matter on appeal to a district court from a denial of access to a record shall be expedited on the court’s docket and heard within seven days.

“Attorney Fees & Costs: A petitioner who prevails or substantially prevails in a court of law against an agency that has denied access to an open record shall be awarded the costs of litigation and attorney fees.

“Sanctions: Any person who is found in a court of law to have violated the statute may be subject to: A civil fine of $1,000 for the first offense, increasing with each subsequent offense; and shall be guilty of a misdemeanor punishable by a fine or 90 days in jail or both, and may be subject to termination.”

 According to the study’s introductory overview, the idea for the project emerged from the BGA’s assessment of Illinois public records law, which the association found disappointing.  The question then arose just how good or bad that law was in comparison with those in other states.

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Court: Tenant Eviction Record from Court Not Enough (4/8/02)
A commercial service reporting tenant evictions to landlords may face liability for failing to provide context information. So ruled the California Court of Appeal for the Second District in its opinion, filed March 28 in Schoendorf v. U.D. Registry, Inc., Case No. B146918.

Faye Schoendorf was the defendant in two evictions from different rental quarters in Los Angeles County, in 1992 and 1995. The bare outcomes of these municipal court actions were, like thousands of other eviction cases, gathered up from court files by U.D. Registry, Inc. (UDR), a commercial service that provides reports by subscription to landlords leery of bad tenant risks.

The reports showed that both Schoendorf's unlawful detainers were dismissed, with the comments section left blank in the first and in the second containing the words, "profane screaming & threatening others." Schoendorf learned of the information under her name and protested, through two attorneys, that UDR should either remove her from its list entirely or supplement its reporting of her evictions by offsetting facts outside the court record. Failure to do so, she said, was not only unfair but also violated state and federal law on fair credit reporting.

Schoendorf said the 1992 eviction was retaliatory, coming on the heels of her suing the landlord and complaining to the city of cockroach infestations and maintenance neglect that left her dwelling uninhabitable. Her suit led the landlord to pay her $5,000 and agree to dismiss the unlawful detained action, as shown by documents she supplied to UDR. Likewise, the second unlawful detained action was not all that it appeared.

The "screaming" comment was traced to one other tenant who did not get along with Schroeder. Her attorney supplied UDR with copies of declarations and statements from three other neighboring tenants testifying that Schroeder was a "quiet tenant who respected the rights of others." Schoendorf's attorney supplied documentation that not only did she pay rent as owed but also that the landlord refunded her security deposit as a condition of settling the unlawful detainer action.

But UDR insisted that its reporting from the index of civil actions of the municipal court was accurate, and refused to de-list Schoendorf or supplement the listings about her. When she sued for corrective action and for damages as well, UDR persisted in its public records defense, and filed an anti-SLAPP motion. The trial court granted the motion, dismissed the case and later awarded UDR $19,010 in attorney's fees.

On appeal, Schoendorf argued that the trial court erred in finding, in effect, that she had no reasonable likelihood of winning her case, again insisting that state and federal law required UDR to include all relevant facts in its reports to landlords. UDR said it could not be faulted legally for simply and accurately communicating material in the court record.

The Second District disagreed. In the words of Justice Robert M. Mallano:

"We reject UDR' s position for several reasons. For one thing, UDR does not limit its sources of information to the public record and adjudicated facts. As stated, UDR accepts information directly from landlords about good tenants and problem tenants and includes that data in its reports.

"Yet, UDR would have Schoendorf penalized just because her version of the dispute did not become a matter of public record. But, as a practical matter, the civil register of actions reflects very little information provided by either party. The filing of an unlawful detainer and its disposition (for example, 'dismissed') are the only material facts of mention. Short of a judgment in his or her favor, a tenant cannot convey anything even remotely favorable through the register of actions. In this case, for instance, the register did not reflect that the landlord in the first unlawful detainer action may have sought to evict Schoendorf because she reported health code violations to the county. "More important, UDR's reliance on a 'public record' standard is completely at odds with its statutory duties as a credit reporting agency. As Division Four of this court stated in an earlier appeal in a different case:

" 'UDR overlooks its broader obligations under the statutes as a credit reporting agency. Both (state and federal fair credit reporting laws) require "maximum possible" accuracy. This means that a report violates the statutes when it is misleading or incomplete, even if it is technically accurate . . .. ' Congress did not limit the Act' s mandate to reasonable procedures to assure only technical accuracy; to the contrary, the Act requires reasonable procedures to assure "maximum accuracy."

The Act's self-stated purpose is "to require that consumer reporting agencies adopt reasonable procedures for meeting the needs of commerce for consumer credit . . . in a manner which is fair and equitable to the consumer, with regard to the confidentiality, accuracy, relevancy, and proper utilization of such information." Certainly reports containing factually correct information that nonetheless mislead their readers are neither maximally accurate nor fair to the consumer who is the subject of the reports."'" (Cisneros v. U.D. Registry, Inc39 Cal.App.4th at pp. 579-580)

The court noted Schoendorf's allegations that UDR's failure to either supplement or remove her entry injured her credit rating and ability to rent and caused her "severe emotional distress," and concluded that she had "made a prima facie showing of facts that would, if established at trial, support a judgment in her favor. We do not decide what information should have been added to her report, how it should have been worded, or what her remedies might be. We simply find that she made a prima facie showing on the merits of her claims."

The court rejected UDR's defense arguments based on the First Amendment and the privilege for making statements in court proceedings, stating that "UDR does not have a constitutional right to report half-truths," and concluding: "Were we to give the litigation privilege such broad application, it would - like UDR's First Amendment argument - render the (state and federal fair credit reporting laws) meaningless by granting UDR blanket immunity. Thus, we conclude, as have other courts, that nonparticipants and nonlitigants to judicial proceedings are not protected from liability under the litigation privilege."

The court reversed the anti-SLAPP-based dismissal as well as the order granting UDR and its president attorney's fees and costs, and awarded Schoendorf, who had litigated the appellate case in propria personam, her costs on appeal.

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Bill Would Create Hyper-secrecy for "Public Safety" Data (4/1/02)
A measure introduced in the Assembly on February 20 would make home contact data about a wide range of public officials uniquely confidential.

AB 2238, introduced February 20 by Assembly Member Richard Dickerson, has been assigned to the Assembly Public Safety Committee with no hearing date set. Creating residential confidentiality for a sweeping new category of "public safety officials," defined to include not only peace officers but essentially all elected, appointed and employed government actors with any roles that might excite anger, the bill would do the following, as described in the Legislative Counsel's digest of the bill:

Malicious Address Posting: "Existing law prohibits any state or local agency from posting the home address or telephone number of any elected or appointed official on the Internet without first obtaining the written permission of that individual.

"This bill would prohibit any person from knowingly posting the above information of any elected or appointed official or the official's spouse or child on the Internet knowing that person is an elected or appointed official and intending or threatening imminent physical harm to that individual. The bill would include public safety officials within the list of covered officials. This bill would make a violation of these provisions a misdemeanor, and would make the violation a felony if it leads to the bodily injury of the official or his or her spouse or child."

Business Address Use: "This bill would also permit a public safety official, as defined, to use his or her business address or telephone number in lieu of a home address for specified public records, and would prohibit specified people and entities from disclosing the home address and telephone number of public safety officials, or possessing that information. A willful violation of these provisions by specified people would be a misdemeanor, or a felony if the willful violation resulted in bodily injury to the official, his or her spouse or child."

Obstruction of Justice Disclosure: "Under existing law every person who maliciously, and with the intent to obstruct justice or the due administration of the laws, publishes, disseminates, or otherwise discloses the residence address or telephone number of any peace officer, nonsworn police dispatcher, or employee of a city police department or county sheriff's office, or that of the spouse or children of these persons, whether living with them or not, while designating the peace officer or nonsworn police dispatcher or relative of these persons as such, without the authorization of the employing agency, is guilty of a misdemeanor.

"This bill would include with the intent or threat to inflict imminent physical harm in retaliation for the due administration of the laws in the above prohibition, and would include public safety officials, as defined, among the list of those who may not have their information published."

   Comment: The bill responds to the request of a Los Angeles Superior Court Judge, who cites several examples of actual or threatened violence visited on judges and other officials, targeting them at their homes. The timing suggests exploitation of "heightened security" concerns prompted by the attacks of September 11, despite the fact that the majority of those affected were private citizens and that they were not attacked at home.

The most radical provision of the bill affects those who possess home contact information about the covered officials or relative already. It states, in subdivision (d) of proposed new Government Code Section 6254.23, an amendment to the California Public Records Act:

"Every person, business, and association in the state shall remove from their records or data base the home address and telephone information of a public safety official, or his or her spouse or child, unless they have the consent of the public official to have that information, and may insert in its place a business address or telephone number of that public safety official, or his or her spouse or child, upon demand and under penalty of perjury."

On the other hand, the other bill provisions creating specific intent crimes -disclosure of home data on the Internet "intending or threatening imminent physical harm to that individual," or otherwise releasing home data "with the intent or threat to inflict imminent physical harm in retaliation for the due administration of the laws"-are oddly underinclusive. If one does the prohibited acts with the stated criminal intent, why should the protective effect be limited to government officials? The implicit premise-that public officials and agents are uniquely vulnerable to retaliation or terrorism-is belied by every day's headlines.

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Ontario Releases Airport Study after CFAC Demand(4/1/02)
The City of Ontario, which denied the California First Amendment Coalition's request for access to a consultant's study two weeks earlier, has released it.

As reported in FLASH recently, the city staff would not even show copies of what it called the "draft" report to the city council, and called the consultant who wrote it to block release of a copy to an inquiring council member, Debbie Acker. City Manager Greg Devereaux in particular deemed the report confidential work product until he and other staff members worked it into releasable shape.

The California First Amendment Coalition contended, however, that the $86,000 study by a San Francisco consulting firm into the advantages and disadvantages of Ontario International Airport in the market for air cargo was, for purposes of the California Public Records Act, complete and self-contained enough that anyone who cared-certainly including Council Member Acker-should be allowed to see it.

An exchange of letters between CFAC and Ontario's city attorney, John Brown of Best, Best and Krieger in Riverside, made it clear that the city's position was that while the city council has paid for it, the report was not final until the staff said so. Even then, Brown noted, there are "proprietary" parts that would hurt Ontario (which does not own Ontario International) if released to competing airports.

According to a report in the Los Angeles Times, Devereaux called the document released March 27 to CFAC and the council "substantially the same as the earlier drafts," lacking only some references to private companies.

"Previously," the Times reported, "Devereaux had said the draft included information on cargo businesses operating out of (the airport) and their needs.

"'It contained competitive information that could be beneficial to other airports and might have been damaging to those companies,' Devereaux said without elaborating. 'We didn't think that was appropriate.'"

In a meeting with CFAC prior to its board meeting March 13, Brown suggested that the whole controversy was the result of a running feud between Acker and the council majority, which has no problem in being denied the study until staff approves it. Brown also questioned what good it would do to make the competitively sensitive information public.

Later that day, after hearing Acker explain her interest in seeing the full study (her prior professional background was in airport business), the CFAC Board "condemned" the city's position and asked that the matter be referred to its Legal Advisory Committee.

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CFAC's Demand for Ontario Consultant Study Draws Rejection (3/18/02)
Is a consultant’s study bought by a city with federal funds and delivered to the staff something that can be kept confidential as a “draft?”

Yes, says the City of Ontario staff, which won’t even show copies of the report to the city council, and called the consultant to block release of a copy to an inquiring council member, Debbie Acker. City Manager Greg Devereaux in particular deems the report confidential work product until he and other staff members have worked it into releasable shape.

No, says the California First Amendment Coalition, which contends that an $86,000 study by a San Francisco consulting firm into the advantages and disadvantages of Ontario International Airport in the market for air cargo is, for purposes of the California Public Records Act, complete and self-contained enough that anyone who cares‹certainly including Council Member Acker‹should be allowed to see it.

An exchange of letters between CFAC and Ontario’s city attorney, John Brown of Best, Best & Krieger in Riverside, makes it clear that Ontario will not release the study unless ordered to do so. Its justification, says Brown, is that while the city council has paid for it, the report is not final until the staff says so. Even then, Brown notes, there are “proprietary” parts that would hurt Ontario (which does not own Ontario International) if released to competing airports, and also portions that address sensitive security concerns.

In a meeting with CFAC prior to its board meeting last Wednesday (March 13), Brown suggested that the whole controversy was the result of a running feud between Acker and the council majority, which has no problem in being denied the study until staff approves it. Brown also questioned what good it would do to make the competitively sensitive information public.

Later that day, after hearing Acker explain her interest in seeing the full study (her prior professional background was in airport business), the CFAC Board “condemned” the city’s position and asked that the matter be referred to its Legal Advisory Committee.

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Bill Would End Charging Requesters for Suppressing Information (3/11/02)
A bill recently introduced in Sacramento would bar public agencies from charging fees for deleting data from electronic records prior to release.

AB 2397, introduced February 25 by Assemblyman Kevin Shelley (D-San Francisco), is sponsored by the California Newspaper Publishers Association. It adds a single line to the relatively new provisions of the California Public Records Act dealing with access to public information stored on computer: “Nothing in this section shall be construed to authorize an agency to charge the public for segregating or deleting portions of records that are exempted by law.”

As one example of why such legislation is needed, a newspaper recently requested substantial digitized information from the State Department of Social Services, showing how local licensed community care facilities are monitored and what their inspections turned up. After identifying all the records responsive to this request the department told the newspaper:

“The Department contracts with a private company to maintain the FAS database. In conjunction with this request, (you) will be required to pay a fee of $118 per hour, which is the fee under the Department’s current contract for this service. If the contractor is able to commit solely to the (your) request, it will cost $37,760 to complete, working approximately eight weeks on a full-time basis. In addition, two CDSS employees will be needed to assist the contractor. Under Government Code section 6253.9(b)(2), the costs associated with time spent by CDSS employees to compile and extract data to construct the record and assist the programmer are recoverable from (you). The Department estimates the services of one employee will be needed for 120 hours at the rate of $47.80 per hour, while the other employee will be needed for 40 hours at the rate of $41.05 per hour. The combined cost for their services equals $7,378. As a result, the total cost to be paid by (you) to the Department of Social Services, in order for the Department to be able to comply with (your) request, is $45,138.”

Comment: The good news represented by the new law on access to computerized information (carried, incidentally, in an earlier bill by Shelley), is that for the first time it makes possible investigative projects like the one being done by the newspaper. The bad news is that fee policies like this one make such projects prohibitively expensive.

It is one thing to charge a requester any special reprogramming costs to extract data from a database to the specifications of the requester. That work like removing food elements from a prepared menu item to suit the dietary taboos of the diner -- is clearly chargeable to the requester under current law. But charging the diner the cost of removing material the restaurant, for its own reasons, doesn’t want her to have is quite another proposition.

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California Congressman Quietly Rebuffs Ashcroft's FOIA Stance (3/11/02)
Congressman Henry Waxman (D-Los Angeles) sought and got a rebuke to Attorney General John Ashcroft’s Freedom of Information Act policy.

The action may have no legal effect, but represents a symbolic (and bipartisan) Congressional slap at Ashcroft’s directive last fall encouraging federal agencies’ FOIA officers to, in effect, search for and use any legal authority for denying access to records under the federal law.

Every few years the House Government Reform Committee, with oversight on FOIA issues, publishes an update of its popular “A Citizen’s Guide on Using the Freedom of Information Act and the Privacy Act of 1974 to Request Government Records” (current 1999 edition found at bottom of page at http://www.access.gpo.gov/congress/house/house07cr106.html).

Last Thursday, February 7, the committee marked up its draft for the next edition, which in the introduction currently states, "Above all, the statute requires Federal agencies to provide the fullest possible disclosure of information to the public."

Congressman Waxman offered, and Committee Chair Dan Burton (R-Indiana) approved, the addition of the following paragraphs immediately following that statement:

"The history of the act reflects that it is a disclosure law. It presumes that requested records will be disclosed, and the agency must make its case for withholding in terms of the act's exemptions to the rule of disclosure. "The application of the act's exemptions is generally permissive -- to be done if information in the requested records requires protection -- not mandatory. Thus, when determining whether a document or set of documents should be withheld under one of the FOIA exemptions, an agency should withhold those documents only in those cases where the agency reasonably foresees that disclosure would be harmful to an interest protected by that exemption.

"Similarly, when a requestor asks for a set of documents, the agency should release all documents, not a subset or selection of those documents. Contrary to the instructions issued by the Department of Justice on October 12, 2001, the standard should not be to allow the withholding of information whenever there is merely a 'sound legal basis' for doing so."

Meanwhile in the other house, Senator Patrick Leahy (D-Vermont) has asked the General Accounting Office to look into a question several journalists and others have been wondering about: Just what if any real-world effect has the Ashcroft memorandum had?

According to a report from the Reporters Committee for Freedom of the Press, on February 28 Leahy asked the GAO to “assess the impact of the new policy on agency responses to FOI requests, agency backlogs of requests, litigation involving federal agencies for withholding records and fee waivers for requests from news media,” and also “to ascertain whether agencies were accepting electronically filed FOI requests, particularly since the anthrax threat has compromised delivery of mail.”

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Three New Bills Would Reduce Access to Personal Information (3/4/02)
A trio of new measures in Sacramento would, in various ways, make personal data less accessible under the California Public Records Act.

AB 2278

The most straightforward and comprehensive is AB 2278, introduced February 20 by Assembly Member John Campbell (R-Irvine). It would add to the Public Records Act a new exemption from disclosure as Government Code Section 6254.27, stating:

“Notwithstanding any other provision of law, no state agency may release in any public document, or in any other document, to any person or entity, except the individual for whom the information pertains and to other public agencies, the following information:

“(a) An individual's residential address.

“(b) An individual's residential telephone number.

“(c) An individual's mother's maiden name.

“(d) An individual's social security number.

“(e) An individual's place of birth.”

The author’s staff indicates that the bill will be amended to refer only to the mother’s maiden name and the social security number, and that the primary concern was the release of this information for sale.

SB 1614

Senator Jackie Speier’s SB 1614, introduced February 21, is likewise prompted by reports of state agency sales of personal information, but does not make data completely inaccessible, but instead bars the sale for commercial purposes of an “index or comprehensive compilation” of personal data.

Senator Speier (D-Hillsborough) late last year voiced alarm at discovering 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 pointed up the matter 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 Speier also called on Governor Davis to do something immediately to halt the state’s sale of the sensitive data until its impact on privacy could be assessed, and in early December the governor 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 Department of Health Services was ordered 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. It also was ordered to recommend other measures it could take to prevent similar information from being made available.

SB 1614 would add the following language to the Public Records Act as Government Code Section 6253.95:

“(a) (1) Notwithstanding any other provision of law, except as provided in paragraph (2), a state or local agency may not disclose an index or comprehensive compilation of the records described in subdivision (b) for use by any person for a commercial purpose.

“(2) A state or local agency may disclose an index or comprehensive compilation of the records described in subdivision (b) for use by a person for a commercial purpose if the index or compilation is limited to the inclusion of records pertaining only to each person of record who has provided his or her written consent for the information to be released in this format.

“(b) This section applies to all of the following records:

“(1) An index of birth records, as described in Section 102230 of the Health and Safety Code.

“(2) An index of dissolution of marriage, legal separation, and marriage nullification decrees, as described in Section 103205 of the Health and Safety Code.

“(3) An index of death certificates, as described in Section 102230 of the Health and Safety Code.

“(4) An index or comprehensive compilation of instruments affecting the title to real property that are recorded in a county recorder's office, as described in Section 1169 of the Civil Code. “(c) A state or local agency shall revise the forms used to gather information for birth certificates, dissolution of marriage, legal separation, and marriage nullification records, and instruments affecting the title of real property in order to comply with this section.

“(d) For the purposes of this section, "person of record" means a person whose birth is recorded in a birth record, each party to a marriage dissolution, legal separation, or marriage nullification action resulting in a decree, and each party whose interest in real property is recorded in an instrument affecting the title to real property.”

SB 1386

Senator Steve Peace’s SB 1386, introduced February 12, would create a new policy basis for withholding information under the Public Records Act. Incorporated as a legal basis for denying access would be Government Code Section 11019.9, which states:

“Each state department and state agency shall enact and maintain a permanent privacy policy, in adherence with the Information Practices Act of 1977 that includes, but is not limited to, the following principles:

“(a) Personally identifiable information is only obtained through lawful means.

“(b) The purposes for which personally identifiable data are collected are specified at or prior to the time of collection, and any subsequent use is limited to the fulfillment of purposes not inconsistent with those purposes previously specified.

“(c) Personal data shall not be disclosed, made available, or otherwise used for purposes other than those specified, except with the consent of the subject of the data, or as authorized by law or regulation.

“(d) Personal data collected must be relevant to the purpose for which it is collected.

“(e) The general means by which personal data is protected against loss, unauthorized access, use modification or disclosure shall be posted, unless that disclosure of general means would compromise legitimate state department or state agency objectives or law enforcement purposes.

“(f) Each state department or state agency shall designate a position within the department or agency, the duties of which shall include, but not be limited to, responsibility for the privacy policy within that department or agency.”

The apparently intended effect of this grafting would be to impose a new basis for withholding personal information, i.e. that a requested disclosure would not meet the purpose for which the information was gathered: a truism that would cover most data, which are seldom if ever accumulated in order that they be released to the public.

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S.F. Chronicle Fighting for Access to Malpractice Settlements (3/4/02)
The good news was that the Medical Board of California was willing to release malpractice settlements. The bad news was a pre-emptive suit by insurers.

The San Francisco Chronicle is in court against insurance companies after asking the Medical Board of California for reports of medical malpractice settlements that must be filed with the Board by those same insurance companies.

As related to CFAC by Julie D’Angelo Fellmeth, administrative director of the Center for Public Interest Law in San Diego:

“To make a long story short, the Medical Board discloses a number of things about its doctor licensees to the public via its website and over the phone‹however, medical malpractice settlements are not one of them (even though the Board receives reports of them from insurers and from a variety of other mandated reporters).

“Todd Wallack of the Chronicle filed a CPRA request for those reports late last year. After a number of private sessions with its lawyers, and a number of public hearings and debates over its entire public disclosure policy (including the settlements issue), the Board wrote the Chronicle on February 8 that it intended to turn over the requested documents once it has redacted the names of patients from them (which it believes it must do under the Information Practices Act).

“I thought the California Medical Association would sue (on behalf of doctors) to stop the Board -- instead, the insurance companies who pay the settlements have sued in Sacramento Superior Court. They got a temporary restraining order, and the court established an expedited briefing schedule with a hearing on March 8 on a preliminary injunction.

“It is getting to be a messy case legally, because there are so many statutes on Medical Board public disclosure (and they are all inconsistent with each other). It is very likely that the PI will issue. The Chronicle has intervened in the case as a real party in interest.

“Is the standing doctrine so broad that these insurers can file this lawsuit? This is a PRA dispute between the Medical Board and the Chronicle. The Board decided to turn over the information. I can see that a doctor would have standing to sue to prevent allegedly confidential information about him/her from being disclosed‹but an insurance company?”

Comment: Another interesting issue this litigation will raise is the Chronicle’s entitlement to attorney’s fees. Under the Public Records Act it would be entitled to recoup its fees if it had to sue the Medical Board for the settlements, and won. But as an intervenor against the insurance companies, it might not be able to get fees unless the court were to read the Public Records Act expansively. Several years ago a small newspaper asked for police department salaries from a small town and was told they would be released. But then the local peace officer association sued the town to block release. The newspaper had to hire counsel to stave off the injunction, and she did so. But the newspaper “prevailed” over the association, not the city, and was denied recovery of fees.

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Bill Would Add Jail Guards to Protected Personnel List (3/4/02)
AB 2040 by Assembly Member Manny Diaz (D-San Jose) would add “custodial officers”‹jail guards in certain counties that do not use peace officers to staff jails‹to the category of officers concerning which citizen complaints and other personnel information cannot be obtained under the Public Records Act.

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Court: Unsealing 'Trade Secrets' in Credit Card Case Was Proper (2/25/02)
A trial court reasonably decided that a credit card issuer sued in a class action overstated trade secrecy protection in seeking to have its documents sealed.

So ruled the California Court of Appeal for the First District in its February 20 opinion in In re Providian Credit Card Cases, Case No. A094820 (Providian_Cases)

The case is the first known opportunity for the appellate courts to interpret and apply the California Judicial Council’s new Rules of Court (effective January 1, 2001) that disfavor sealing of court documents and require that such secrecy be predicated on strong showings of necessity.

The underlying class action combines a number of suits alleging that several related financial institutions (Providian) wrongly imposed fees and charges on holders of their credit cards. At the outset of the consolidated case the court directed the parties to designate as “Confidential, Subject to Court Order,” any material produced under discovery that they wanted to keep under wraps pending admission into evidence.

Providian responded by labeling numerous of its produced documents accordingly, and the plaintiffs moved that they all be unsealed immediately, protesting that Providian’s move “vastly over-designated” information as worthy of protection. Then the Hearst Corporation, owner of the San Francisco Chronicle, intervened to move that the provisional protective order be reconsidered on public policy grounds. The court denied Hearst’s motion, but referred the plaintiff’s motion to a retired judge, delegating the task of reviewing the purportedly sensitive documents and recommending whether they were, as Providian contended, subject to trade secret protection.

At this point Rules of Court 243.1 and 243.2 took effect, and Hearst renewed its efforts, arguing that the burden now clearly rested on Providian to justify any sealing. Providian responded by submitting declarations by a company executive and a consultant to explain why at least 39 of the 67 exhibits under seal contained “core proprietary information.” The question went back to the refereeing judge, who agreed with Providian as to 14 of the 39 documents, but recommended that the other 25 be unsealed.

The trial judge, however, stated that after reviewing each exhibit and taking the declarations into account, he found that none of the documents should stay sealed.

When Providian appealed, the First District began by ruling that the questions must be decided under the new Rules of Court, and agreed with Hearst’s argument that the trial judge’s factual findings must be upheld if supported by substantial evidence, and that his decision to unseal the records must be allowed to stand unless constituting an abuse of discretion. The factual issues determining the trade secret classification include, the court noted:

-- Whether the information is in fact secret;

-- Whether it derives independent economic value in being known only to its owner;

-- Whether the owner made reasonable efforts to keep it secret; and

-- Whether disclosure would in fact damage the owner.

The court noted an interesting double standard governing how involved it must get, under the Rules of Court, in second-guessing the trial judge on such issues. If it were reviewing a decision to seal records it would be required to review the entire record to determine whether the findings were based on substantial evidence and not an abuse of discretion, and “express findings” would be required from the trial court accordingly. But in reaching a decision to unseal, the court noted, the trial judge was not required to recite express findings, and there was no basis for ruling that it must. The lack of symmetry in the rules was not accidental, the court concluded, and in light of the First Amendment bias against court secrecy, it was “not at all surprising.”

Accordingly, the First District saw its role as analyzing assumptions the trial court likely made and deciding if they were supported by substantial evidence. Applying this approach, the court noted that the contested documents mainly consisted of three categories:

-- Scripts for sales pitch strategies that telemarketers would use, varying responses based on the called party’s responses; and

-- Memoranda from a company executive dealing with marketing approaches but also expressing “blunt criticism” of certain personnel and management practices.

The scripts, the court concluded, were probably deemed disclosable because they contained information sales pitches that as a whole lost their secret status because they were revealed to the public as they were used; and that rationale would not have been an abuse of the trial judge’s discretion.

The memoranda were likely deemed disclosable because the company had not marked them with the prominent secrecy warnings that it had used with other documents intended for close proprietary security.

Two other factors, said the court, supported the notion that the trial judge had not abused his discretion. First, when a company insists that a whole category of documents constitutes trade secrets with no attempt to separate nonsensitive from sensitive material and even resists such an exercise in line-by-line segregation by the court the risk arises that the result will be a decision that the information is just generalized know-how, not particularly sensitive. The all-or-nothing approach may, that is, gain one nothing.

Finally, the potential that the case could involve a “nationwide class of millions” of plaintiffs meant, the court said, that there was “an undeniable force to Hearst’s argument that there is Œgreat and legitimate public interest in precisely how Providian went about trying to sell its various products and services to the public.” This point was backstopped by the more general presumption of public access signaling, as was stated by the California Supreme Court more than a century ago, “a first principle that the people have the right to know what is done in their courts.”

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California Common Cause Supports Constitutional Sunshine Bill (2/18/02)
The state’s most general-purpose public interest group has joined those supporting a bill to put fundamental access rights on the ballot. California Common Cause Executive Director Jim Knox sent a letter Friday, Feb. 15, to Sen. John Burton expressing support for the Constitutional Sunshine Amendment Bill, SCA 7.

Common Cause joins the California League of Women Voters, San Francisco Board of Supervisors, San Diego Democratic Central Committee, California Chicano News Media Association and Los Angeles Press Club as organizations expressing early support for the legislation.

The Common Cause support letter to Sen. Burton states:

“California Common Cause is pleased to support your SCA 7 which would place a measure on the November 2002 ballot to establish the fundamental right of public access to government and the process of policy-making while maintaining the individual’s right to privacy

“Although California Common Cause has been a long-standing supporter for laws such as the Ralph M. Brown Act and the California Public Records Act, it has become evident that invisible government persists. Therefore we stand behind your effort to eradicate closed meetings and the “grayness” surrounding the justification for withholding information.

“Please let us know what we can do to support your work to pass SCA 7 in the Legislature and at the polls. Thank you for your leadership on this important issue.”

For up-to-date information about SCA 7 go to ../sca7.html

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Bill Looks to Creation of One Net for Crime, Terrorism Tracking (2/18/02)
California’s courts and law enforcement agencies have computer systems that don’t talk to one another, but that may begin changing.

AB 1870 by Assembly Member Dennis Hollingsworth (R-Murrieta) would expand an existing but obscure advisory committee within the Department of Justice into the Integrated Justice Information System Task Force, comprising mostly law enforcement and judicial figures but also a few spokesmen for privacy and public information interests.

The bill, AB_1870 was introduced January 31 and has been assigned to the Assembly Committee on Public Safety, with no hearing date set.

The measure’s premises are stated in its findings and declarations as follows:

“(a) An automated justice system that shares and tracks data concerning youth and adult offenders and cases in the juvenile, dependency, probate, family and criminal courts among all appropriate agencies will improve public safety and school safety by making more timely, accurate, and complete information available statewide to all criminal justice, social service, and education agencies and to individual decision makers in the system including police officers, sheriffs, prosecutors, public defenders, judges, corrections officers, probation officers, health and human services officers, and educators.

“(b) Criminal justice, social service, and education agencies may currently employ different data base entry and management protocols and electronic data storage and communications technologies, some fully compatible with others, some not.

“(c) (Current law) establishes the Department of Information Technology to provide leadership, guidance, and oversight of information technology in state government, including, but not limited to, the following:

(1) Development of statewide strategy, policy, standards, and infrastructure for state government information technology.

(2) Implementation of efficient, effective, and timely information technology acquisition and project management procedures.

(3) Development and implementation of an information technology equipment and acquisition strategy to maximize efficiency in information dissemination and transfer.

“(d) Rule 6.53 of Title Six of the California Rules of Court, the Judicial Administration Rules, establishes the Court Technology Advisory Committee to promote, coordinate, and facilitate acquisition and implementation of information and communication technologies useful and appropriate to the courts and to recommend standards to ensure compatibility in the application of information and communication technology in the judicial branch.

“(e) The United States Department of Justice is engaged in an effort to promote integrated criminal justice technologies nationwide and, among other things, will be sponsoring and facilitating discussions of nationwide technical standards for sharing criminal justice information among all components of the criminal justice enterprise.

“(f) Other states are engaged in similar efforts to promote the utilization by criminal justice agencies of information and communication technologies as a means for sharing criminal justice information.”

The somewhat pithier rationale stated in an author’s press release described the bill as allowing agencies “full and equal access to information that is now misplaced, lost or improperly filed.”

Hollingsworth says in the release, “The men and women who protect the public, from the cops on the beat to prosecutors and probation officers, should all have access to the latest criminal information that enables them to better perform their duties. AB 1870 will speed this information flow to the people who need it while eliminating costly redundancy that plagues law enforcement today.”

The bill would not create an integrated system overnight, but instead establish the task force, comprising representatives of police and sheriff membership groups as well as those speaking for judges, district attorneys, public defenders, probation officers, the Highway Patrol, the Youth Authority and a kind of public sector:

“Four representatives from recognized organizations involved in privacy advocacy, civil liberties advocacy, legal aid or public access” and “one member of the publicŠwho is knowledgeable and experienced in the necessity and the process of utilizing criminal justice information system data or who has been involved in privacy advocacy, civil liberties advocacy, legal aid, or public access.”

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Agency Lobbyists Air Concerns about Sunshine Amendment (2/11/02)
Lobbyists for two key local agency organizations met with sponsors of SCA 7 last week for preliminary questions on the sunshine measure. .

Senate Constitutional Amendment (SCA) 7 would place on November’s ballot a proposed addition to the California Constitution making access to state and local agency meetings and records a fundamental right, with exceptions limited in scope and required to be carefully justified in application. .

Full information on the measure is at ../sca7.html

On February 5 representatives of the League of California Cities and the County Supervisors Association of California (CSAC) met with the California First Amendment Coalition (CFAC) and the California Newspaper Publishers Association (CNPA), sponsors of the bill co-authored by Senators John Burton (D-San Francisco) and Bruce McPherson (R-Santa Cruz). .

During the meeting, Sen. Burton’s staff aide, Rodger Burton, said legislators were receiving lots of inquiries about SCA 7, mostly from lobbyists representing law enforcement and other government entities. This makes it all the more important for open government supporters to let their legislators hear from them in support of the constitution Sunshine Amendment. .

Among the misunderstandings and concerns expressed by the city and county lobbyists in the Feb. 5 meeting were contentions that SCA 7 would: .

--End personal privacy for all public employees. RESPONSE: The language of SCA 7 would expose only information relating “to the qualifications or fitness of a person for any elective or appointive office in government.” That focus on officers would probably be interpreted to exclude jobholders who are not officers, but even if applied to line employees, it would go no further than current case law, which concludes that public employees in general have no right under any privacy law, including the state constitutional provision, to information about confirmed instances of substantial misconduct, or discipline resulting from them. As for the law that now protects peace officers from any disclosure of misconduct (short of crimes) or discipline, it could be expected that its extraordinary secrecy would be defended in the name of one or both of SCA 7’s permitted exemptions in the interest of public safety or the effective administration of justice. .

--Apply to state legislators and their activity. RESPONSE: The State Constitution already mandates open meetings in the legislature, with some exceptions, and in the case of any conflict would almost certainly be viewed as trumping SCA 7. As for legislative records, the Legislative Open Records Act has exemptions, but most of them could be interpreted as relating to privacy and other interests cited in SCA 7. .

--Automatically void current statutes. RESPONSE: SCA 7 would affect current law only by a process of piecemeal court challenges. Lawmakers would be free to amend or repeal statutes in conformity with the policy stated in the constitutional amendment, but would not be forced to do so. .

--Lead to extensive litigation. RESPONSE: Litigation is the natural and necessary process by which the constitutional validity of any statute or practice is tested, but there is little reason to believe that the result of SCA 7 would be to heighten the frequency of anti-secrecy litigation. .

Asked what had happened to motivate the push for a constitutional sunshine amendment at this time, the CFAC and CNPA representatives at the meeting said no one incident was crucial, but rather that the past two decades had seen increasing loopholes from disclosure requirements, stemming more from court decisions than legislation. Also the fact that reform legislation approved in the Assembly and Senate but frustrated by a succession of governor’s vetoes causes the organizations to attempt to let the people speak at the ballot box. Meanwhile, they said, the lack of any requirement to justify secrecy in practical, specific terms leaves too many local agencies free to simply cite a statute when questioned on closure of a meeting or a file. .

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Latest on SCA 7 The Constitutional Sunshine Amendment Bill (2/04/02)
(Stay current daily at ../sca7.html)

SF Board of Supervisors Endorses SCA 7.....Voting unanimously, the San Francisco Board of supervisors endorsed SCA 7 Feb. 1, saying the board "is committed to the public’s right to information and is dedicated to improving the flow of information between government agencies and the public." (View the full text of the board's resolution at SF Board Resolution)

CFAC Files Support Letters.....The California First Amendment Coalition (CFAC) has formally notified the legislative authors and the relevant Senate Committees of its support for SCA 7, which would place a proposed amendment to the California Constitution on the November ballot creating a constitutional right to open government for Californians. Letters sent to Senators John Burton (D-San Francisco) and Bruce McPherson (R-Santa Cruz) as well as four Assembly co-authors last week state: “It is time to add to the basic civil liberties of Californians the right to transparent governmental processes, open to public observation and comment. It is time for the California Constitution itself to insist that state and local agencies keep official secrecy to a minimum and explain in understandable terms why closed meetings and records are essential to avoid harm to a serious public or private interest when that is really the case.”

Cities, Counties to Detail Objections.....Lobbyists and lawyers for the League of California Cities and the California State Association of Counties will meet tomorrow with CFAC and representatives of the California Newspaper Publishers Association (CNPA) to discuss the local agencies’ objections and reservations concerning SCA 7. The League has reportedly taken an “Oppose Unless Amended” position on the bill, but its precise menu for desired amendments has not been disclosed. According to League Executive Director Chris McKenzie, one concern is “security,” although the bill expressly authorizes the legislature to enact exemptions from public access to meetings and records that would jeopardize public safety.

Newspapers Begin to Lay on the Ink.....As of today, editorials supporting SCA 7 have appeared in the Santa Cruz Sentinel, Contra Costa Times (Walnut Creek), the San Diego Union-Tribune, the Claremont Courier, the Orange County Register and also Editor & Publisher magazine. Sacramento Bee columnist Margie Lundstrom comments, however, that the press doesn’t own this issue: “It's tempting to view this as a narrow, self-serving issue raised by the whiny media, but that's deceptive. Journalists may bellyache the loudest over secret reports and closed meetings, and they've got a nice platform from which to do so. But the true foot soldiers are those California citizens -- often labeled as kooks or gadflies -- who probe their local water districts, scrutinize their city councils, and fight to hold their schools accountable.” In its profile of CFAC President Rich McKee in the current issue, the Sacramento News & Review quotes co-author Senator John Burton as commenting, “If you’re doing the public’s business, and representing the public, and the public pays your salary, they have the right to know what the hell is going on.”(see McKee Profile )

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State Bar's Revised Rule Clarifies Whistleblower Policy (2/04/02)
The State Bar has new rules about when government attorneys may and must disclose information about their clients.

The main thrust of the document revising Rule 3-600 of the Code of Professional Conduct, adopted in final form by the Board of Governors at its January 17 meeting, is how to protect government lawyers who find themselves in the position of Cindy Ossias.

From her obscurity of the legal ranks in the Department of Insurance, Ossias won considerable publicity and a First Amendment Beacon Award from CFAC in 2000 for her disclosures to a legislative oversight committee investigating operations under then Insurance Commissioner Chuck Quackenbush, who shortly thereafter resigned under a cloud.

Her document releases and testimony at the request of the Senate Insurance Committee showed that contrary to prior departmental statements, it was known that several major insurance firms were facing many potential fines for how they mistreated policyholders in the wake of the Northridge earthquake.

But for several months thereafter, Ossias’ revelations also fueled speculation that she might be subject to discipline by the State Bar for violating ethical norms. That did not occur, but her experience raised enough fundamental questions about the tension between the lawyer’s general duty of client confidentiality and specific obligations to see that government remained lawful that Assemblyman Darrell Steinberg (D-Sacramento) introduced legislation on the topic.

AB 363 as of last April stated that “the Rules of Professional Conduct should be amended to clarify the right of public agency attorneys to strive to protect the interests of the public under appropriately specified circumstances even when that protection may unavoidably risk the disclosure of client confidences.” The State Bar spent the rest of the year on that project, and the results are the rule amendments just adopted, which must be given final approval by the State Supreme Court.

On the question of when a public attorney must disclose secrets of his her client agency‹and how‹in serving the public interest. In most cases, real disclosure to outsiders is still not an option. The attorney is limited to internal persuasion to try to correct the wrong, or at most to taking the matter to “the highest internal authority that can act on behalf of the organization” in cases where an act or refusal to act:

-- “is or may be a violation of law imputable to the organization”;

-- “is likely to result in substantial injury to the organization”;

-- “constitutes the use of the organization’s official authority or influence by (an) agent to commit a crime, fraud or other violation of the law”;

-- “involves the agent’s willful misuse of public funds or willful breach of fiduciary duty”; or

-- “involves the agent’s willful omission to perform his or her official duty.”

The attorney can go outside the agency only when these steps have proven fruitless or when the wrongdoer is in fact “the highest internal authority” himself or herself. In that case the attorney may, without ethical breach, refer the matter to “the law enforcement agency charged with responsibility over the matter or to any other governmental agency or official charged with overseeing or regulating the matter.” But even these authorities may be told only both of two situations exist:

-- “the referral is warranted by the seriousness and not otherwise prohibited by law; and

-- “the agent’s act or refusal to act constitutes the use of the organization’s official authority or influence to commit a crime or fraud, or a willful misuse of public funds or a willful breach of fiduciary duty.”

In no case would these rules excuse a government attorney’s going directly to public disclosure, via the news media or otherwise. That fact disappointed State Bar President Matthew Cavanaugh of Long Beach, according to a report in the San Francisco Daily Recorder, which quotes him as commenting to other Bar governors, "When I think of whistle-blowing, I think of going to the press." Overall, he expressed disappointment that the adopted rules are a “watered-down version” compared with Steinberg’s original bill. (See story at Daily Recorder Story )

But despite the hard line preserved on truly public disclosures, the rules do not pose the conflict with the state’s sunshine laws that some observers had feared. Thanks to concerns raised by the California Newspaper Publishers Association, clarifying statements accompanying the Rule 3-600 amendments state that they are “not intended to supersede the duty of a member who represents a governmental organization to publicly use or disclose information as may be required or allowed by law or by the administrative or business practices of the governmental organization the member represents.”

This note cites the California Public Records Act, the Brown Act, the Political Reform Act and the Bagley-Keene Act, but it also would include locally adopted rules like the San Francisco Sunshine Ordinance. Under that law, for example (Section 67.8-1 of the city’s Administrative Code), all closed sessions including those with counsel, concerning pending litigation -- must be either audio or audio and video recorded in their entirety and retained for at least ten years, and “made available whenever all rationales for closing the session are no longer applicable.”

If the session is closed to discuss “anticipated litigation” by the agency, the tapes must be released two years later if the agency does not file the litigation; or if based on a threat of litigation against the agency, then upon expiration of the statute of limitations if no litigation is filed; or as soon as the controversy leading to anticipated litigation is settled or concluded.

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Burton Asks Publishers Help for SCA 7(1/28/02)
Senate President pro Tem John Burton told newspaper publishers last week he’ll need lots of help to pass SCA 7. That measure would, if passed by both houses of the legislature by June 27, go on the ballot for voter approval on November 5. It would declare access to governmental meetings and records as fundamental rights, allow exceptions to protect privacy and a small number of other interests where public dissemination of governmental information would be harmful, and require public agencies to explain the rationale for particular denials of access and to make them no broader or longer in duration than necessary.

Despite Burton’s unmatched influence in the Capitol, he told a governmental affairs gathering of the California Newspaper Publishers Association on Wednesday, January 23 in Sacramento that newspaper executives will have to pull out all the stops to help him get the needed supermajorities. What that means, he said, is not only expressions of support in editorials but the personal touch: picking up the phone and calling the Senator or Assembly Member directly to explain how important the bill is, or bringing up the issue when the member shows up to be interviewed by an editorial board, or both.

“I don’t know how important this bill is to you, but if it was important to me as a sponsor, that’s what I’d do because that’s what it will take,” Burton said. He stressed that weekly newspapers could be at least as influential as dailies, since they often had closer ties with their local lawmakers.

SCA 7, introduced by Burton (D-San Francisco) and Senator Bruce McPherson (R-Santa Cruz), has not yet been assigned a hearing date but will first go to the Senate Committees on Governmental Organization and on Constitutional Amendments. The Governmental Organization Committee members are Senators Edward Vincent (D-Inglewood), chair; Ross Johnson (R-Irvine), vice chair; James Brulte (R-Rancho Cucamonga); Wesley Chesbro (D-Arcata); Joseph Dunn (D-Garden Grove); Maurice Johannessen (R-Redding; Betty Karnette (D-Long Beach); “Pete” Knight (R-Palmdale); Michael Machado (D-Linden); Bill Morrow (R-Carlsbad); Jack O’Connell (D-San Luis Obispo); Don Perata (D-Oakland); and Nell Soto (D-Ontario). The Constitutional Amendments Committee members are Senators Ray Haynes (R-Riverside), chair; Debra Bowen (D-Redondo Beach), vice chair; Tom McClintock (R-Thousand Oaks); Jack O’Connell; and Byron Sher (D-Palo Alto).

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CFAC Launches Website for Sunshine Amendment (1/28/02)
The California First Amendment Coalition has created an online resource for understanding and tracking progress on SCA 7. The Web page (SCA 7 Website) contains the text of the legislative bill intended to place the constitutional amendment on the ballot, a number of frequently asked questions, and information on the bill’s authors, sponsors, supporters and committee hearing path. “This page will be updated as soon as new information develops,” said Kent Pollock, CFAC’s executive director. ”We urge our members and anyone else interested in the bill to forward the page’s Web address to friends and associates, to help spread the word.”

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Burton Introduces CFAC “Sunshine” Amendment (1/14/02)
Senate President pro Tem John Burton has launched a CFAC-sponsored bill to let California voters make open government a fundamental right. SCA 7, introduced Thursday, January 7, would if passed by both houses of the legislature by June 27, go on the ballot for voter approval on November 5. To succeed it would need majority approval from the electorate. The bill can be tracked online at: (SCA 7)

The bill has a principal co-author in Senator Bruce McPherson (R-Santa Cruz), and in the Assembly lists as co-authors Fred Keeley (D-Monterey), Christine Kehoe (D-San Diego), Bill Leonard (R-San Bernardino), Lou Papan (D-San Mateo) and Kevin Shelley (D-San Francisco).

Senator Burton (D-San Francisco) agreed to carry SCA 7 at the request of the California First Amendment Coalition (CFAC) and the California Newspaper Publishers Association (CNPA). CNPA, which has represented California daily and weekly newspapers for more than a century, remarks in its current membership bulletin that “SCA 7 represents, perhaps, the most important public policy battle ever waged by CNPA and CFAC.”

CFAC Executive Director Kent Pollock agreed, and said it was a special challenge for CFAC. ”This bill has to pick up a very strong momentum of support starting right now and sustain it for almost a year. And yet given our nonprofit status, there’s only so much in terms of resources that CFAC can expend on the effort. That’s why we are asking our members to get involved. We need them to send at least a brief letter of support to Senator Burton and if possible, get associates or organizations that champion open government to do the same.”

General Counsel Terry Francke added that while e-mail is the quickest way to spread the word, “an old-fashioned letter in your own words has no substitute in expressing support to Senator Burton, and through him, to the legislature as a whole.” Sending a copy to one’s own lawmakers in the Senate and Assembly, Francke said, “provides maximum impact with minimum effort.”

Letters are best addressed to:

Senator John Burton, State Capitol Room 205, Sacramento, CA 95814

OR

(Your Senator or Assembly Member), State Capitol, P.O. Box 942849, Sacramento, CA 94249-0001

As an early and extraordinarily swift endorsement, the board of directors of the League of Women Voters of California unanimously resolved to support the measure at its Saturday, January 12 meeting in Sacramento.

If passed in June and approved in November, SCA 7 would raise open government principles to the status in the state constitution now enjoyed by such rights as free speech, free press and personal privacy.

As configured in the draft prepared by CFAC, the new language would supplement Article I, Section 3, which currently states the rights of the people “to instruct their representatives, petition government for the redress of grievances, and assemble freely to consult for the common good.”

The added language would set forth:

-- A general presumption of open access: “Except as provided pursuant to this Constitution, the people have a right to attend, observe, and be heard in the meetings of elected and appointed public bodies, and to inspect and copy records made or received in connection with the official business of any public body, agency, officer, or employee, or anyone acting on their behalf.”

-- A special regard for the privacy of ordinary citizens; the legislature would retain the authority “to provide by statute for the protection of information about private individuals submitted to or obtained by any public body, agency, officer, or employee, or anyone acting on their behalf, except to the extent that the information relates to the qualifications or fitness of a person for any elective or appointive office in government.”

-- A designation of a few areas where restricted access can serve vital public interests; the legislature would be authorized to create “other limitations on the right of public access to governmental information,” but “only as necessary to protect public safety or private property, to ensure the fair and effective administration of justice, or to provide for the preservation of public funds and resources.”

-- A mandatory process for justifying restrictions case by case; when it comes to actually denying access based on one of the authorized interests, the denial would have to be “based on particularized findings demonstrating a substantial probability of serious harm to the public interest that the denial will avert, and that this harm cannot otherwise be averted by reasonable alternatives, and shall be no broader in scope or longer in duration than necessary to avert the identified harm.”

Medical Board Sets Forum on Reduced Doctor Disclosures (1/7/02)
Should the state body that regulates physicians and surgeons cut back how much it discloses about doctors with problems? That’s the topic of a public forum to be held before the Public Information Disclosure Committee of the Medical Board of California soon.

The session will be held from noon to 4 p.m. on January 23 in the board’s conference room F at its 1424 Howe Avenue office in Sacramento.

The committee invites public comment on certain questions, but asks for specific recommendations plus the pros and cons they involve.

The first issue is whether the information that is now disclosed for the duration of a doctor’s license should continue to be so generally available. The information includes disciplinary documents, malpractice judgments and arbitration awards, felony convictions and “805 Reports” resulting from any cutoff of privileges at a medical facility.

The questions posed for comment are:

-- “Should any of these documents be purged at some point? If so, why? What is an appropriate retention period and why?”

--“Do certain types of violations or disciplinary actions warrant being maintained for the duration of the license? If so, what are they and why should they be maintained?”

--“What is an appropriate retention period for an accusation that has been withdrawn, and why?”

--“What is an appropriate retention period for an accusation that has been dismissed, and why?”

With regard to non-disciplinary enforcement agreements by the board, current policy is to withdraw an accusation if a doctor complies with the terms of the agreement, but the stipulation itself remains as part of the record and is disclosed.

The committee asks for comment, “Should the agreement be purged and if so, what is an appropriate retention period, and why?”

Misdemeanor convictions “substantially related” to a doctor’s fitness or ability to practice medicine are not now disclosed. The committee asks, “Should any information be disclosed about substantially related misdemeanor convictions, closed complaints, or open complaints? If so, what should be disclosed, for how long and why?”

Other comments solicited:

“Should malpractice settlements be disclosed? If so, why? Should there be a monetary threshold before a malpractice settlement is disclosed and if so, what should it be and why? What would be an appropriate retention period for malpractice settlements and why?”

”Should information about a physician’s training and board certification be collected and disclosed? If so, what information should be collected and why? If information is collected, how often should it be updated and why?”

”Should any changes be made to current disclaimers? If so, what should be changed and why?”

Those who will not be attending the forum but wish to submit written comments should send them to Ronald H. Wender, M.D., Chair, Public Information Disclosure Committee, Medical Board of California, 1426 Howe Ave., Suite 54, Sacramento, CA 95825-2387.

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Jailed Texas Writer Freed; Legislation May Follow (1/7/02)
Although Vanessa Leggett was released from jail in Houston January 4 after spending more than five months behind bars for refusing to share her research into a murder with a federal grand jury, the story doesn’t end. For one thing, what set her free was the expiration of the grand jury’s term, and if the next panel pursues the matter, and “If she should be called again as a witness, she will go through the same process again,” Assistant U.S. Attorney Terry Clark told the New York Times, and she may be looking at a new subpoena in a matter of weeks.

She was locked up for contempt of court when she turned down the grand jurys subpoena for her notes and documents concerning a sensational 1997 murderin Houston. Her lawyers argued that she had a First Amendment privilege to keep this material confidential. The government notes that she has never published and has no current contract to do so, and those facts disqualify her for any consideration as a journalist.

The U.S. Fifth Circuit Court of Appeals agreed, noting that in any case its precedents did not entitle journalists to resist grand jury subpoenas.

Leggett, who has set a record of 168 days of incarceration for refusal to yield notes, told the Times she would “absolutely” do it again if necessary. Meanwhile, a CFAC attorney member notes,” U.S. Rep. Sheila Jackson Lee, D-Houston, was quoted as saying she hopes to begin work on federal legislation that better defines who is and is not a journalist. The principal national press organizations appear to be nervous that the legislation could do more harm than good and are trying to arrange a meeting with Rep. Lee to discuss the subject. See a summary and chronology of the Leggett episode compiled by the Reporters Committee for Freedom of the Press at http://www.rcfp.org/leggett.html.