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Air traveler protesting unpublished law on photo ID (11/25/02)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