Promoting and defending the people's right to know since 1988
Stories: Public Information
These reports cover issues dealing with the public's right of access to information held by government agencies and courts, at the federal, state and local level. The typical laws involved are the California Public Records Act, the federal Freedom of Information Act, and rules on access to records of state courts, adopted by the California Legislature or the California Judicial Council.
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2003
Court:
License applicants must get privacy notice
SAN JOSE (12/18/03) -- A city must
notify "key" licensed gambling club employees before
disclosing to the public the detailed personal information they
have submitted.
So ruled the California Court of Appeal for the Sixth District
in its opinion
in Gilbert v. City of San Jose, case no. H)25324.
On state constitutional privacy grounds, the court concluded
that San Jose's Gaming Control Regulatory Ordinance, which requires
detailed personal background information to be submitted by those
applying for licenses as casino employees who can affect gaming
results, must be amended to require an alert to the employees
when a public records request is made for the information.
The ordinance requires such employees to disclose, as part of
the local licensing application, personal history comparable
to that required to be submitted to the state under Business
and Professions Code Section 19865, namely "complete
information and details with respect to the applicant's personal
history, habits, character, criminal record, business activities,
financial affairs, and business associates, covering at least
a 10-year period immediately preceding the date of filing of
the application."
In ruling on an a suit by a number of key employees of Bay
101, who attacked the ordinance for failing to protect their
privacy rights, the appellate court concluded,
"Before defendant discloses personal information collected
under the Ordinance, it must take reasonable steps to notify
the person to whom the information pertains of the pendency and
nature of the request for the information and to afford the person
a fair opportunity to object to disclosure, to join in resisting
disclosure, or to institute appropriate legal proceedings to
resist disclosure or limit the scope or nature of the matters
sought to be discovered."
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Court:
Employer's privilege protects negligence
SAN DIEGO (12/5/03) -- An employer
who makes a good faith mistake and defames a former employee
in a reference check is protected from legal liability in doing
so.
So concluded the California Court of Appeal for the Fourth District
in its opinion
in Noel v. River Hills Wilsons, Inc, case no. D040367.
That has been the result of a libel and slander privilege existing
for many years in Civil Code Section 47, subdivision (c), commonly
understood by the courts to protect employers when asked for
a candid assessment of a former emplyoree during a job applicant's
reference check.
But several years ago the Legislature made the former employer's
protection even more explicit by amending the civil code to provide
employer protection when when the false and injurious statement
was "based on credible evidence, made without malice."
The question raised in this case is whether the "credible
evidence" qualifier actually weakens the employer's protection.
The issue was raised when a personnel clerk in the defendant
company mistakenly provided the wrong information about the plaintiff
to a background screening firm -- information that actually pertained
to another applicant the firm had asked her about the same day.
Ironically, the accurate facts about the plaintiff were far more
damaging as a matter of criminal history.
The plaintiff, however, pressed to have the issue taken before
a jury. But the trial court found that all the evidence pointed
to the clerk's good faith in making the error, and the Court
of Appeal agreed, concluding from the statute's legislative history
that inserting the "based on credible evidence" phrase
was meant only to avoid unjustily protecting employers who passed
on unverfied rumors. But in this instance, Justice Judith McConnell
stated for the court, there were no rumors alleged and non sign
that the former emplyoyee was a victim of the clerk's ill will:
"We conclude no reasonable jury could find malice was a motivating cause of (the clerk's) statements. Rather, the undisputed evidence shows she made an unintentional error, or careless blunder, by paying insufficient attention to ChoicePoint's inquiry. She gave inaccurate employment information on Noel because she was expecting an inquiry from a prospective employer on another former employee of Wilsons. In his responsive separate statement, Noel conceded that Santillan 'had sincerely made [a] . . . mistake in providing the incorrect employment reference to GTE.' Contrary to Noel's position now, she did not doubt the truth of the information she conveyed, or show a reckless disregard for his rights or feelings."
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SCA1
may be up for March ballot-setter shortly
SACRAMENTO (11/24/03) --There is
a good chance SCA1, the constitutional Sunshine amendment co-sponsored
by CFAC and CNPA, may be heard by the State Assembly sometime
during the week of Dec. 1, according to an official with the
Assembly Speaker's Office of Member Services.
Authored by Senate President pro Tem John Burton (D-San Francisco), the measure would amend the state constitution to make access to public records and government meetings a constitutional civil right.
If approved by two-thirds of the Assembly, the measure would go before the voters on the November ballot. But the proposal could even be placed on the March ballot if the Legislature and Gov. Arnold Schwarzenegger agree to waive the normal 131-day waiting period for ballot measures approved by the Legislature. This scenario is more likely to occur if the Legislature also acts to place the governor's proposed bond initiative on the March ballot.
Bill Cavala, senior staff to Speaker Herb Wesson, told CNPA General Counsel Tom Newton that the opportunity to bring SCA1 to a vote arises because of a combination of factors, including the recall of Gov. Gray Davis and the election of Schwarzenegger, his call for the Legislature to return to Sacramento to address budget and workers compensation issues, and a growing public cry for bipartisan action. Cavala said that while plans could change, there is a good chance SCA1 could be voted on before Friday, Dec. 5.
Poised for a final vote in the Assembly during the last weeks of the regular session, SCA1 became entangled in a partisan fight that results in the Republican caucus' refusal to vote to approve any bill requiring a two-thirds vote. The Legislature adjourned Sept. 12 without taking action on the bill.
"It is time for all CFAC members to
contact their Assembly members in support of SCA 1's quick passage,"
said CFAC President Rich McKee. "We need to seize the moment
and get this measure on the ballot so Californians can approve
this important open government measure."
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Judge:
Bonus specifics not the public's business
LOS ANGELES (9/19/03) -- Exactly
who gets exactly how much in the City of Claremont's employee
bonus program, and why, is nobody else's business.
So concluded Los Angeles Superior Court Judge Dzintra Janavs
in Lissner v. City of Claremont, a California Public Records
Act case.
Jim Lissner and the Claremont Courier, both members of the California
First Amendment Coalition, sued the city earlier this year for
a variety of information on named employees' compensation and
expenses, and in particular sought to learn who had been awarded
how much in bonuses, and the particular performance evaluations
supporting each award.
The city released considerable data responsive to the plaintiffs'
request, but withheld performance evaluations and bonus recipients
by name, contending these were legally confidential matters of
personal privacy. Moreover, the city contended, no compensation
information on individual peace officers may be released because
of prohibitions in the Penal Code.
Judge Janavs agreed:
"Given the extensive disclosures made, this Court finds that on the record before it, the public interest in disclosure of the withheld information (how public money is spent) does not outweigh the privacy interests of the civil service employees in their evaluations and salary/bonus information."
As to the public interest running against disclosure -- which she found to outweigh the public interest in disclosure -- the judge stated:
"In addition to invasion of individual employee privacy rights of a great number of civil service employees, (the City officials) have presented evidence that the disclosure of employee records (including performance evaluations) will undermine the performance evaluation system by discouraging candor and, potentially, constructive criticism (which promotes improvement and efficiency) along with it.
"Another concern is that disclosure of employee records will damage employee morale and promote unhealthy comparisons and jealousy among co-workers."
The plaintiffs have not yet decided whether to seek relief in
the court of appeal.
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DHS
Sacramento public counter closing tomorrow
SACRAMENTO (11/24/03) -- The Department
of Health Services is closing its public counter in Sacramento
due to budget cuts, according to a genealogists' advocate.
Iris Carter Jones, president of the Genealogical and Historical
Council of Sacramento Valley, informed the group's members last
week that the counter will be closed to walk-in applications
for vital records as of November 25 and six department employees
will be reassigned.
"Budget 'cuts to the bone' are cited as the reason the DHS management has decided that the Public Counter should be closed, in spite of the fact that this is one of the operations that brings revenue into the department," Jones reported.
"The reasons we can all speculate upon, but the fact is that this move will not only affect genealogist and researchers, but the public in general. This includes those who need to obtain birth certificates for children beginning school, college registration, and passports." she said.
"The one light at the end of the tunnel
is that most county offices will continue to be open for walk-in
requests for birth, death, marriage, divorce documents. The department
states that the turn-around time will be four weeks."
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Initiative/referendum
research center heads to USC
WASHINGTON, D.C. (11/17/03) The
Initiative and Referendum Institute (IRI), the nation's best
known think tank focused on direct democracy, will move to USC
Jan. 1.
IRI will join the USC-Caltech Center for the Study of Law and Politics (CSLP) to form what its organizers say will be the nation's leading center for the study of the initiative, referendum and recall.
Founded in 1998 and currently based in Leesburg, VA., IRI is a nonprofit, nonpartisan organization dedicated to tracking political trends on its award-winning Web site and through its Ballotwatch service.
IRI provides expert opinion for journalists and policymakers, hosts international conferences and publishes policy monographs, reference books and scholarly work. IRI is active in Europe through its sister organization, IRI-Europe, based in Amsterdam.
"IRI is currently the leading source
of reliable, nonpartisan information on the initiative, referendum
and recall for media and policymakers," said John Matsusaka,
a senior research fellow at IRI and professor of finance and
business economics at USC's Marshall School of Business, who
will serve as president of the institute.
"We believe this affiliation with the USC will also make
IRI the leading center for scholarly research on these increasingly
important tools of popular government," Matsusaka said.
The USC-Caltech Center for the Study of Law and Politics is an interdisciplinary center whose members are leading scholars in law and the social sciences from USC, Caltech and other universities across the country. The center's scholars conduct rigorous studies of all aspects of the democratic process, including public opinion, voting, the role of media, the role of money and public policy.
Following the move, IRI's founder, M. Dane Waters, will become the organization's chairman and will head the institute's Washington, D.C.-area office.
"With the recent historic recall election in California, we have seen that voter-driven legislation is spurring profound changes in the political landscape, especially in the Western states," said Waters.
"Our relocation to Los Angeles will enhance our visibility, allow us to work more closely with the excellent scholars at USC and Caltech, and establish the institute as the critical source for information on the initiative, referendum and recall."
Combining the IRI with the Center for the Study of Law and Politics will create the nation's most prominent center for the study of the initiative, referendum and recall at the local, state and international levels, said Elizabeth Garrett, a professor of law and politics at the USC Law School and director of the CSLP.
"We look forward to working with outstanding
scholars in law, political science, economics and public policy
throughout the United States to produce rigorous analysis and
information about this vital part of the democratic process,"
Garrett said.
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SPJ
echoes CFAC's secret vote challenge to Senate
WASHINGTON, D.C. (11/13/03) --
The Society of Professional Journalists has widened the challenge
to secret Senate action by demanding disclosure of a key vote.
In his letter
to Vice President Dick Cheney -- addressed in his capacity as
president of the Senate -- SPJ President Gordon McKerral condemned
the use of a voice vote a week earlier to approve the Administration's
$87 billion Iraq operations and reconstruction spending request.
Mainly echoing the language of a previous letter from Richard
McKee, president of the California First Amendment Coalition,
to Senators Dianne Feinstein and Barbara Boxer, the letter concludes:
"The embrace of secrecy in a vote of such national and international
interest reflects poorly on the world's model for democratic
governance. No legislative body in the 50 states, from the smallest
city council or school board to the state legislatures themselves,
would be allowed to approve the most modest appropriation off
the record, much less one of historic proportions and consequence.
The United States Senate's approach to the Iraq spending approval
flies in the face of traditions we have come to regard as fundamental:
that Congress serves at the mercy of the people, and that people
have a civic duty to monitor the actions of their elected representatives.
"SPJ asks you to disclose the voting record on the Iraq
funding measure. We also ask for Congress to address an amendment
to the appropriate Senate rules that would prohibit off-the-record
voting on any measure in the future and certainly those involving
major and controversial policy matters."
The letter was sent at the urging of CFAC Executive Director
Kent Pollock. It was co-signed by Charles N. Davis, executive
director of the Freedom of Information Center at the University
of Missouri School of Journalism, and Joel Campbell, Assistant
Professor of Journalism at Brigham Young University, who co-chair
SPJ's Freedom of Information Committee.
In its news release, SPJ invited those who "would like to
volunteer for duty in the fight to have the Senate vote on the
record" to contact Davis
as soon as possible.
To date neither California senator has responded to McKee's letter.
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CFAC
asks Feinstein, Boxer to disclose Iraq votes
SACRAMENTO (11/10/03) -- The California
First Amendment Coalition has asked Senators Feinstein and Boxer
to reveal their votes on the $87 billion Iraq fund package and
to work to change Congressional rules to eliminate secret votes
on important issues.
In letters sent to the senators Friday, November 7, CFAC President Rich McKee stated:
"We are a nonprofit organization dedicated to promoting and defending the people's right to know how their government and its officials advance the public interest-or not. Our focus to this end is in the "sunshine" laws, such as the Brown Act and California Public Records Act at the state and local level, and the Freedom of Information Act at the federal level.
"We fully appreciate that the Congressional branch is subject to none of these statutes and is constitutionally autonomous in this regard: free to make its own rules about how publicly it conducts the people's business.
"We are dismayed, however, to learn that the Senate decided to conduct a 'voice vote' to approve the Administration's $87 billion Iraq operations and reconstruction spending request.
"National Public Radio's senior news analyst, Daniel Schorr, pointed out in his November 5 'All Things Considered' commentary,
It was the biggest such emergency appropriation ever sought by a president. Any of the six senators present could have suggested the absence of a quorum and called for absent members to return for a recorded vote; none did. That there would be no recorded vote to provide some future embarrassment had been worked out in advance by majority and minority leaders Bill Frist and Tom Daschle.
"Schorr observed:
Now if you want to know how your senator voted, or would have voted, on the multibillion-dollar Iraq package, you'll have to ask him or her and hope that he or she will tell you.
"Senator, no legislative body in California, from the smallest city council or school board to the Assembly and Senate in Sacramento, would be allowed to approve the most modest appropriation off the record, much less one of historic proportions and consequence. The United States Senate's approach to the Iraq spending approval flies in the face of traditions we have come to regard as fundamental, and that we soon hope to enshrine in the state constitution itself, via Senator Burton's Senate Constitutional Amendment 1.
"We ask you to disclose your vote on the Iraq funding measure. We also ask you to sponsor or at least co-sponsor an amendment to the appropriate Senate rules that would prohibit off-the-record voting on any measure in the future -- and certainly those involving major and controversial policy matters.
"Sincerely,
"Richard McKee
President
California First Amendment Coalition"
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Court:
Public employees' pay has protection
SAN FRANCISCO (10/31/03)
The exact pay of named public employees is not per se a matter
of public record but may be subject to disclosure if the public
interest warrants it.
So concludes the California Court of Appeals for the First District in its opinion in Teamsters Local 856 v. Priceless LLC, case no. A102255.
The case involves the request of a number of free daily newspapers named the "Daily News" operating in Palo Alto and other San Francisco Bay Area communities, made to a number of those cities, for the names, titles and annual wages from all sources of all municipal employees for the year 2002. The newspaper had made similar requests in recent years and had never met strong resistance.
But this time the Teamsters and several public employee unions with members in the target cities soon went to court for an order blocking release of the information, citing the workers' right to privacy in their payroll information.
The Daily News filed suit to preserve its rights, but the trial court issued a preliminary injunction, blocking release at least until the privacy claim was thoroughly explored. The Daily News persuaded the court to modify its order to direct the cities to release the requested salary information, identifying each employee's earnings by position only and withholding the employee's name.
The newspaper sought relief in the appellate court, insisting that the names were likewise releasable, placing its central reliance on Government Code Section 6254.8, a provision of the California Public Records Act that states:
"Every emplyment contract between a state or local agency and any public official or public employee is a public record which is not (exempt from disclosure under provisions of this Act)."
But the Court of Appeal reviewed the legislative history of this language and concluded that the Legislature had not intended that it apply to lower line employees, who technically speaking were not employed by force of a contract.
On the other hand, the court said, the privacy expectations of public employees generally are subject to being offset or overridden in particular cases where the public interest in diclosure of the actual earnings of a named worker can be established by a sufficient foundation.
But a higher procedural barrier exists for access to police and other peace officer pay data. Not only must a sufficient public interest be shown to justify release, but this showing must be made through use of a "Pitchess motion" asking the court to review the information in chambers and judge its relevance to the purpose of the request.
The court emphasized that its rulings did not end the litigation -- just preserved the confidentiality of the names until a more thorough examination of the competing claims could be pursued in the trial court. In the words of Justice James J. Marchiano for the court,
"We note again that this appeal is
from a preliminary injunction. A preliminary injunction does
not determine the merits of the case. ... Participants in this
appeal have requested judicial notice of several evidentiary
items that were not produced in the trial court. This fact highlights
the preliminary nature of this case. By acquiescing in the plaintiff
Unions' approach to the case, rather than pursuing its statutory
remedy under the CPRA, the Daily News has agreed to the delay
that is occasioned in a regular civil action for an injunction.
Other pleadings are pending in this matter, it is apparent that
more evidence is available on the issues of a reasonable expectation
of privacy, whether the information sought is already publicly
available and the public purpose to be served by disclosure of
individually identified salary information. Both sides will have
an opportunity to present additional evidence that may cause
the court to modify its preliminary injunction."
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Court
nixes FBI bid to purge unspecified computers
SACRAMENTO (10/27/03) -- A federal
judge has refused to let the FBI search computers -- potentially
including CFAC's computers -- and remove from them information
about spy activities.
On October 15, two days after FLASH carried a story headed "Records
sealed in case against FBI," U.S. District Judge Garland
E. Burrell, Jr. turned down a request from the United States
Attorney for permission to have government agents search unnamed
private computers and remove from them copies of documents that
had been belatedly sealed in a civil case against the FBI in
Burrell's court in Sacramento.
Attached to the FLASH story -- a reprint of a report in the San
Antonio Business Journal by editor Bill Conroy -- were a declaration
by plaintiff Lok T. Lau and an amicus
curiae brief supporting his position, filed by the League
of United Latin American Citizens (LULAC).
In the same Ocotber 15 order, Judge Burrell agreed to surrender
to the defendant the court's own filed copies of the sealed documents,
with the proviso that "Defendant is to ensure that these
returned documents are made available for further decision in
this case, including appellate review, until the time for appellate
review expires."
The government's brief supporting its motion for the secrecy
steps, actually filed before the FLASH story published the documents,
was extremely casual in its most radical proposal. The final
sentence of the brief said simply:
"Finally, if Lau's declaration and the amicus brief are
located on any computer hard drives that are not authorized to
contain classified information, defendant John Ashcroft respectfully
requests that this Court order that an FBI computer specialist
be permitted to remove the specific files containing classified
information from the unauthorized computer."
Judge Burrell's order was likewise brief:
"The balance of government's request in its Supplemental
Brief, which concerns copies of these documents not in the Court's
possession, is unsupported by authority and is denied without
prejudice."
The underlying civil rights lawsuit alleges that Lau, a former
FBI agent, was the victim of discrimination because of his race
and disability -- one he claims was caused by the extreme stress
of a dangerous five-year FBI undercover assignment overseas.
The government paints Lau as a liar and a thief, but has taken
extreme pains to prevent him from disclosing particulars of his
assignment, which it maintains are classified as a matter of
national security. Reportedly, neither the United States Attorneys
defending the suit nor Lok's own attorneys have been permitted
to learn these details.
Lau, who knew Conroy from his previous reporting about the FBI,
alerted him to the lawsuit. Conroy wrote an introductory
story but then contacted CFAC about the case when Burrell
approved a government request to seal the documents, which had
been on the public record for nearly three weeks.
Conroy thought CFAC's calling attention to that extraordinary
step might prompt some reporting in the California press. But
so far that has not occurred, other than reprints of an Associated
Press story
about the computer purge request, filed from its Washington,
D.C. bureau.
Conroy has told CFAC that despite the judge's refusal to authorize
the search of computers -- which by now could number in the hundreds
nationwide and beyond -- Douglas Hendricks, general counsel with
the U.S. Attorney's Sacramento office, has pressured Lau's attorneys
to turn over or destroy their copies of their clien's declaration.
But Hendricks' attempt to get LULAC to do likewise with its amicus
brief, Conroy said, had been turned down.
Conroy said he had been told that Hendricks said, on one of these
contacts, that the time had come to "put the lid on."
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Hearing Wednesday
on SF Sunshine Ordinance
SAN FRANCISCO (10/13/03) -- The
first of four public forums is set for Wednesday evening to hear
ideas for improvement to the city's historic Sunshine Ordinance
that regulates open government.
A public hearing will be held before the Compliance & Amendments Committee of the Sunshine Ordinance Task Force at 7:30 p.m., at the Bayview Opera House, 4705 Third Street, San Francisco, for the purpose of "Hearing and receiving comments from the community regarding possible amendments to the City/County of San Francisco Sunshine Ordinance (Administrative Code Section 67)."
The current Sunshine Ordinance, an amendment to the original adopted a decade ago by the board of supervisors, was passed by the voters in 1999. Proposition G, which passed with 54 percent of the vote, strengthened the public's right of access to public meetings of city boards and commissions, and the public's right to view and copy public records of city departments and policy bodies.
Persons interested in submitting comments may do so at the public hearing, or at any regular meeting of the Sunshine Ordinance Task Force or the Compliance & Amendments Committee; by postal mail to the Sunshine Ordinance Task Force, 1 Dr. Carlton B. Goodlett Place, Room 244, San Francisco, CA 94102; or by email to the Task Force Administrator, Donna Hall.
Agendas and minutes of all meetings of the Sunshine Ordinance Task Force and its committees are on the Task Force Web site.
Similar public hearings are planned for November 2003, January 2004 and February 2004. Dates, times and places are to be announced.
Committee Chair Rick Knee says, "The hearings are part of a review of the ordinance by the city's Sunshine Ordinance Task Force. It's possible that a series of amendments to the ordinance will go on the November 2004 ballot.
"The process offers an opportunity
to strengthen the ordinance; it also offers an opportunity to
subvert it. So I'm urging all FOI activists and advocacy
organizations to be part of it."
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Court:
City must bargain racial profiling program
LOS ANGELES (10/9/03) -- To protect
their careers and reputations, a city must bargain with its police
officers before requring them to document the ethnicity of drivers
they stop.
So concluded the California Court of Appeal for the Second District
in its opinion
in Claremont Police Officers Association v. City of Claremont,
case no. B163219.
As noted by Justice H. Walter Croskey for the court,
"The city police department implemented a program in May
2000 to record the race of drivers and pedestrians stopped by
police officers if the stop did not result in an arrest or citation.
Police officers were required to inform the dispatcher by radio
of the reason for the stop and the race, age group, and gender
of the driver or pedestrian. The purpose of the program, known
as the tracking program, was to determine whether officers engaged
in racial profiling. The program was in effect through April
2001."
But the city's Police Commission decided that these data categories
were insufficient to detect racial profiling, and recommended
a more expanded collection program, which went into effect in
July 2002. Justice Croskey explained:
"A police officer must check boxes on a written form to
indicate the time and date of the stop, age group and gender
of the driver, driver's race or ethnicity, officer's perception
of the driver's race or ethnicity before the stop, initial reason
for the stop, initial reason for any search and type of search
conducted, outcome of the stop, driver's city of residence, general
location where the infraction occurred, duration of the stop,
year of the vehicle, and whether the police vehicle was equipped
with a camera. A team of researchers will analyze the data
collected. The initial term for data collection and analysis
is 15 months, after which the city proposes to reevaluate the
merits of the program."
The Claremont Police Officers Association, citing the state law
governing collective bargaining by city employees, asked the
city to meet and confer concerning the new policy, but the city
refused. When the association sought writ of mandate to compel
bargaining, the trial court concluded it was not required by
law.
The association appealed on the basis that, according to Justice
Croskey:
"The association does not seek to meet and confer concerning
the necessity to collect information concerning potential racial
profiling, but only seeks to meet and confer concerning the specific
requirements of the vehicle stop policy, use of the data collected,
and proposed restrictions on dissemination of the data."
The Second District, ordering the city to bargain the policy
with the officers, concluded in Justice Croskey's words:
"The vehicle stop policy significantly affects officers'
working conditions, particularly their job security and freedom
from disciplinary action, their prospects for promotion, and
the officers' relations with the public. Racial profiling is
illegal. An officer could be accused of racial profiling and
subjected to disciplinary action, denial of promotion, or other
adverse action based in part on the information collected under
the new policy. For this reason, the manner that the information
is collected and the accuracy of the data and data analysis are
matters of great concern to the association's members. Moreover,
the city's use of a team of researchers from outside of the police
department and police commission may create the potential for
public dissemination and misuse of data concerning individual
officers, which could impair an officer's relations with the
public and effectiveness on the job. These potential adverse
effects are neither speculative nor remote and need not be demonstrated
by historical facts to be considered significant. The vehicle
stop policy also is a significant change from the former tracking
program, which involved no written report by officers, no outside
research team, and fewer required data items. Since the vehicle
stop policy significantly affects working conditions and is not
a fundamental policy decision, the city was required to meet
and confer with the association before implementing the policy."
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Court:
Insurance lawsuit records can't be sealed
LOS ANGELES (9/22/03) -- No interest
is sufficient to justify filing any of 2,589 pages of exhibits
under seal in litigation disputing coverage obligations among
insurance firms.
So concluded the California Court of Appeal for the Second District
in its opinion
in Huffy Corporation v. Superior Court (Winterthur), Case No.
B166781.
The case involved issues of coverage for ground water contamination
at a former manufacturing site in Azusa, including toxic tort
liability and federal and state Superfund liability.
In a decision based on California Rules of Court, which in turn
rely on a First Amendment presumption of access to court records
absent a specific showing of harm from disclosure, Justice Paul
A. Turner stated for the court:
"Defendant seeks to have sealed:
"None of the documents lodged with
us under seal in this ordinary coverage dispute may be sealed.
The question remains as to what order we should be enter. ...
Rule 12.5 does not address the procedure to be followed when
a document filed under seal in the trial court is ordered unsealed
on appeal. This is therefore a matter of discretion. We conclude
the judicious course under these circumstances is to return the
entirety of the sealed records to defendant. Within 10 days of
the filing date of this opinion, defendant may file whatever
documents rule 56 permits to be filed. But they may not be filed
under seal. "
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Court:
Florida employees' e-mail not public per se
TALLAHASSEE (9/11/03) -- The fact
that an e-mail is stored on a government computer system does
not automatically make it a public record in the Sunshine State
of Florida.
So concluded the Florida Supreme Court in its opinion
in State of Florida v. City of Clearwater, case no. SC02-1694.
In particular, the court ruled, while a public agency may have
a policy warning its employees that their e-mail messages are
city property to which no expectation of privacy attaches, that
fact does not determine what is accessible to the world under
the public disclosure law.
Comment: The court relied
primarily on the state constitution's definition of public records
as those "made or received pursuant to law or ordinance
or in connection with the transaction of official business by
any agency." That language compares with the somewhat
broader definition in the California Public Records Act encompassing
"any writing containing information relating to the conduct
of the public's business."
SCA 1, if passed by the Assembly and approved on the ballot in
November 2004, would amend the California Constitution to declare:
"The people have the right of access to information concerning
the conduct of the people's business, and, therefore, the meetings
of public bodies and the writings of public officials and agencies
shall be open to public scrutiny."
But it also defers to whatever the courts might determine to
be personally private under the California Constitution.
The Florida court cited comments by the trial court which it
believed made the fundamental point -- that "the determining
factor is the nature of the record, not its physical location"
-- quite tellingly:
This court noted several times during hearings
on this case the absurd consequences of such an application
of the law.
If the Attorney General brings his household bills to the
office to work on during lunch, do they become public record
if he temporarily puts them in his desk drawer?
If a Senator writes a note to herself while speaking with her
husband on the phone does it become public record because she used
a state note pad and pen?
The Sheriff's secretary, proud of her children, brings her
Mother's Day cards to the office to show her friends. Do
they become public records if she keeps them in the filing
cabinet?
Back to Top
Actor's
campaign shows ambivalence to sunshine
LOS ANGELES (9/22/03) -- Recall
candidate Arnold Schwarzenegger's ambitious open government and
politics proposals contrast with his campaign's secrecy.
Last Thursday the candidate, in a press conference in the state
Railroad Museum in Sacramento, laid out a bold agenda to make
California government and politics more transparent to the public.
``The people of this state do not trust this government,'' Schwarzenegger
said, standing in front of a locomotive intended to invoke the
period a century ago when railroad moguls' grip on the capitol
was ended by progressive reforms including the initiative and
recall processes.
``They feel it is corrupted by dirty money, closed doors and
back-room deals.''
Elements of the proposal include:
The other key plank is a proposed open
government amendment to the state constitution that would go
beyond the measure now awaiting a final vote in the Assembly.
"I endorse State Constitutional Amendment (SCA) 1, sponsored
by the California First Amendment Coalition and the California
Newspaper Publishers Association and supported by prominent groups
such as the League of Women Voters and Common Cause," Schwarzenegger
said in announcing his 'People's
Reform Plan' released last Thursday.
"I have one change to SCA 1 I would eliminate the special protection from public scrutiny of proceedings, records, and deliberations of 'the Legislature, the Members of the Legislature, and its employees, committees, and caucuses.' There is no reason why the Legislature should be shielded from the antiseptic of sunshine.
"As Governor, I will:
According to the Sacramento Bee, Schwarzenegger also said his constitutional amendment would "open up legislative party caucus meetings, make the governor's calendar available and lift any restrictions on e-mail communications and other draft documents, some of which are now exempted from public-records laws."
It is not clear whether the candidate is committing to encourage a more radical version of SCA 1 for passage by the Legislature or to use his own funds and influence to get the proposal on the ballot through the initiative process, which would cost millions in signature gathering.
If the former, the plan would be dead on arrival, even with lawmakers of his own party. The notion of ending the secret caucus was greeted by Assembly Republican leader Dave Cox as unacceptable: "We certainly couldn't have any caucuses where we talked any strategy," he told the Bee.
But if the idea were to sponsor, as governor, an initiative campaign that would strip his own office of protection for drafts, e-mails and other documents now protected by executive ("deliberative process") privilege, that renunciation would be unprecedented.
"That's certainly a bold position to take for someone who wants to be the chief executive," said Terry Francke, general counsel of the California First Amendment Coalition in comments to the Bee.
"If that's an unflinching commitment, it's a remarkable thing."
Meanwhile, Schwarzenegger's posture as candidate is not so comfortable with transparency.
The Los Angeles Times has obtained a copy
of a five-page confidentiality agreement that all campaign staff
members are required to sign, forswearing disclosure of
"information and items relating to or concerning (a) Arnold
Schwarzenegger and his family, friends, associates and employees
(collectively, 'Related Parties'); (b) private and confidential
matters concerning Employer or any Related Parties; (c) financial,
business, medical, legal, personal and contractual matters and
(d) any letter, memorandum, contract, photograph, film or other
document or writing pertaining in any way to Employer or any
Related Parties."
The agreement is enforceable by injunction, and if violated could subject a current or former campaign employee to a $50,000 damages penalty for each instance.
The Times
notes: "Such nondisclosure agreements are standard
in the movie industry, but unusual in political campaigns. The
Schwarzenegger campaign would not comment on the record about
the agreement, which was not surprising since the agreement provides
that the existence of the document itself must be kept confidential."
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Reimbursement
sought for public records costs
SACRAMENTO (9/15/03) -- After years
of seeking state reimbursement for costs of Brown Act mandates,
local agencies are eyeing public records law as a fund source.
The Riverside Unified School District has filed a test claim
with the Commission on State
Mandates, seeking to qualify for reimbursement certain activities
said to be mandates under the California Public Records Act.
Included are requirements to:
If the commission, in proceedings taking place in coming months, establishes that these activities are indeed mandated new or higher levels of service added to the law since 1975, local agencies will be permitted to submit claims to the controller for documented costs of compliance.
While submitted by a school district, the claim addresses costs incurred by local educational agencies generally, including county offices of education and community college districts.
Similar test claims under the Brown Act have resulted in the eligibility of a wide variety of local government meeting-related activities for, in effect, state subsidy. For example, local bodies are entitled to claim costs for preparing and posting meeting agendas and for training legislative body members and staff in compliance with the Act.
The most regular and conspicuous Public
Records Act costs, for providing access to the records for either
inspection or copying, are not eligible to be claimed because
they were in the law prior to 1975, when the state constitution
was amended to require reimbursement of unfunded state mandates.
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SCA
1 held up by politics as session clock ticks
SACRAMENTO (9/8/03) -- The open
government constitutional amendment was expected to be voted
on by the Assembly last week, but remains stuck in a political
snarl and is passed over every time the item is scheduled for
consideration.
It now has until Friday, when the Legislature is set to adjourn,
to win the two-thirds vote in the lower house that would place
it on the ballot for voter approval in the March primary.
Joe Nation (D-San Rafael) is SCA 1's "floor jockey"
in the Assembly. Linda Barr, one of Nation's staffers,
told CFAC Monday afternoon that Republicans not only are refusing
to allow any votes on measures requiring 2/3 majority but that
they are also forcing any measure that is passed over temporarily
twice to go to the inactive bill file. Should SCA 1 be passed
over temporarily Tuesday, it would then go to the inactive file.
But Barr said the Assembly leadership is
attempting to find ways procedurally to move bill back to the
active file quickly enough to be considered before legislators
adjourn.
Senate Constitutional Amendment (SCA)
1 by Senate President pro Tempore John Burton would add to
the list of fundamental civic rights in the state constitution
the right of citizens to insist on open meetings of public bodies
and accessible records of public agencies and officials.
The bill, a streamlined and less aggessive version of Burton's
SCA 7 of 2002, has passed the Senate and six committees without
a single 'No' vote and is supported by SCA 7's most formidable
adversaries, the League of California Cities and Attorney General
Bill Lockyer. It is sponsored by the California First Amendment
Coalition (CFAC) and the California Newspaper Publishers Association.
But last week, when the measure came up for presentation and
vote on the Assembly floor, it was passed over and never taken
up. It soon became apparent that the problem was not the bill's
content but the fact that it, like several others, needed a two
thirds vote, and that for reasons never spelled out in open debate,
Assembly Republicans had been provoked to deny Democrats passage
of any and every bill requiring two thirds approval.
How long this stalemate will persist is unknown, although similar
deadlocks have been known to be resolved quickly when there are
many interests at stake that cut across party lines and the clock
is running down.
On the other hand, the typical reason a bill needs a two thirds
vote is its inclusion of an urgency clause that would give it
immediate effect, and urgency clauses can be jettisoned to assure
passage with a simple majority. That is just what
happened last week with SB 18, the Burton-Ducheny-Chesbro
bill creating special (and unconstitutionial, according to CFAC)
protection for Native American tribal cultural sites against
the inroads of secular uses in land development.
SCA 1, however, does not have this maneuver available. If it
does not get its 54 votes in the 80-member Assembly this week,
it will become a two-year bill, and passage however early in
2003 would mean placement on the ballot no sooner than the November
2004 general election.
Back to Top
SCA
1 heading for passage without opposition
SACRAMENTO (8/19/03) -- A bill
to make access to government meetings and records a state constitutional
right is now an item moving on the "consent calendar."
Senate Constitutional Amendment (SCA) 1, sponsored by the California
First Amendment Coalition and the California Newspaper Publishers
Assocation, has already passed the Senate by a two-thirds margin
and needs to do the same in the Assembly in the next few weeks.
If it does,
SCA
1 will go on the March 2004 ballot for voter approval.
Its most recent step forward was passage Thursday, Aug. 19, by
the Assembly Committee on Elections, Reapportionment and Constitutional
Amendments by a 4-0 vote. The bill was on the committee's consent
calendar -- with no opposition on file -- and passage was moved
without introduction or testimony, as soon as the panel had a
quorum.
The committee recommended that the Assembly Appropriations Committee
-- the bill's final stop before action on the Assembly Floor
-- deal with the measure as a consent item as well.
The amendment would create a presumption of public access to
the meetings of government bodies and the documents of public
officials and agency, and would require that existing laws favoring
or limiting such access be interpreted broadly and narrowly,
respectively.
Back to Top
Administration's
terrorism secrecy bill narrowed
SACRAMENTO (7/27/03) -- The Davis
Administration's bill to provide new secrecy powers to state
agencies no longer proposes to reduce public access to government
meetings.
But the latest amendments to AB 1209 would still allow agencies
great discretion in withholding government records that reveal
vulnerability to terrorist or other criminal activity.
The bill by Asemblyman George Nakano (D-Torrance), set for hearing
in the Senate Judiciary Committee on August 19, has dropped language
that would have expanded the bases for holding closed sessions
under the Bagley-Keene Open Meeting Act.
That law, governing the meetings of state executive branch boards
and commissions, now authorizes a state body 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. This provision would sunset
on the final day of 2005 unless re-enacted by that date.
AB 1209 instead would have additionally authorized a state body
to hold closed sessions to consider matters posing a threat or
potential threat of criminal or terrorist activity against
the public, including, but not limited to, personnel, property,
buildings, facilities, or equipment, including electronic data,
owned, leased, under the jurisdiction of , or controlled by the
state body, subject to these conditions. It would have deleted
the repeal date of these provisions, thus making the authorization
permanent.
The Cailfornia First Amendment Coalition and the California Newspaper
Publishers Association strongly criticized this broadening of
the scope of discussion allowed in closed session, especially
since the existing terrorism-related expansion of the Act, which
came into effect only on January 1, has yet to be proven inadequate.
Both CFAC and CNPA are likely to remain opposed to the trimmed-back
measure, however, since it contains a secrecy provision having
nothing to do with terrorism, and as for terrorism-related reports
and plans, it leaves indeterminate both the scope of what can
be withheld and the duration for withholding it in the public
interest.
As amended, the secrecy provisions:
Back to
Top
Court:
Peterson search documents stay sealed
FRESNO (7/30/03) -- The press has
no better right to see search warrant records in the Laci Peterson
murder case than it did before her widower, Scott, was arrested.
So concluded the California Court of Appeal for the Fifth District
in its unpublished opinion
in Peterson v. Superior Court, case no. F043260.
The opinion represents the most recent phase in a complicated
and protracted legal battle for press access to many if not all
investigative documents generated in the law enforcement response
over the last half year to the disappearance and death of Laci
Peterson in Modesto.
Earlier phases saw the appellate court approving a superior court
conclusion that pre-arrest documents (search warrants, affidavits
and returns) could be kept sealed to preserve both the integrity
of the investigation and the fair trial rights of any suspects.
On the other hand, the Fifth District rejected a lower court
plan to release the materials when a criminal complaint was filed
or on July 9, whichever came first, finding this order "so
fundamentally inconsistent with the Findings (noting a threat
to both investigative and fair trial interests) as to constitute
an abuse of discretion."
After Peterson was arrested, press organizations sought the unsealing
of post-arrest search warrant materials, wiretap transcripts
and the autopsy report. The trial court approved sealing of these
documents and issued a gag order against comments out of court
by those involved.
But it also issued an order allowing access to the pre-arrest
search warrant materials, based on several factors: the authorities
had found the victims' bodies and arrested and charged Peterson,
and had shown no evidence that they were pursuing other suspects;
and Peterson was now represented by an able legal team who can
"assist the trial judge in ensuring their client receives
a fair trial."
Once again, however, the Fifth District saw these points as failing
to compel unsealing based on changed circumstances, because:
Any change in circumstances, in short, would only be changes for the worse justifying greater caution in the control of investigative files, the court reasoned, stating:
"Release of the (pre-arrest) materials would undoubtedly be followed by their widespread dissemination and dissection in every sort of media medium (sic), including dailiy television with parades of 'experts' endlessly commenting about likely prosecution and defense strategies, opining about the strengths, weaknesses and admissibility of the various factual tidbits disclosed by the materials, and venturing predictions about the probable outcome of the trial against petitioner. How a fair trial by both parties -- and particularly how and untainted jury could be found anywhere -- in the aftermath of such a frenzy escapes us."
Meanwhile, the fact of precisely such widespread dissection of and speculation about the case is being cited by a media collective as an argument for keeping Peterson's preliminary hearing, now set for September 9, open to the press and public.
Media attorney Charity Kenyon argues in her motion opposing closure of the hearing (requested by Peterson's counsel) that keeping the public out would only fuel rumor and conjecture, while public access would provide a firsthand look at the actual case.
Comment:
Google finds the name Laci Peterson triggering 96,900 hits on
the Web generally, and in 758 Web news stories since July 6.
Another sign of the appetite for news about the case can be seen
at the Stanislaus County Sheriff's media
information site.
Back to Top
Court:
Civil case sealing needs more than pact
LOS ANGELES (7/29/03) -- Parties
to civil litigation are not entitled to have documents filed
under seal simply because of a prior agreement that they should
remain secret.
So ruled the California Court of Appeal for the Second District
in its opinion
in Universal City Studios, Inc. v. Superior Court (Unity Pictures
Corp.), case no B166081.
The opinion concerns a request to the Second District to receive
under seal certain documents involved in an arbitration dispute,
but otherwise does not disclose what either the arbitration or
the dispute concerned. The defendant, Universal City Studios,
had gone to the appellate court seeking a writ of mandate to
the superior court ordering it to seal various documents pertinent
to the dispute, and in doing so had lodged those records with
appellate court, seeking a seal there as well.
The Second District faulted most of that request, however. It
rejected the request to file under seal a settelement agreement
from which all financial terms had been previously redacted,
because the parties had not shown the need for keeping other
provisions confidential. In the words of Justice Turner for the
court:
"Apart from the financial figures which have been redacted,
the October 14, 1998 agreement is a routine settlement document.
Defendant has presented no evidence that disclosure of any of
the substantive provisions as distinguished from the redacted
financial terms of the October 14, 1998, agreement will prejudice
any legitimate confidential business practice. Finally, the arbitration
which has been conducted in secret since January 1999 can continue
out of the public eye."
The defendant sought other sealings as well, the breadth of which
which drew a somewhat testy response.
"In addition to the October 14, 1998, settlement agreement,
defendant has requested we seal its motion to dismiss and stay
as well as the judicial notice request which were the documents
lodged additionally under seal with the respondent court. At
the outset, we emphasize the point we just made. Defendant has
presented no admissible evidence as to how its legitimate confidential
financial interests will be compromised or its competitive abilities
adversely affected if the lodged documents are made available
to the public. Disclosure will not affect whether the confidential
arbitration will proceed. The sole ground asserted is that the
extensively redacted October 14, 1998, settlement agreement requires
confidentiality and the presumption of openness in civil litigation
must give way to the parties' contractual understanding.
"Several examples of why defendant is incorrect will suffice.
Because the documents are lodged conditionally under seal, we
will provide only generic examples. If granted, defendant's motion
would seal proofs of service of motions and pleadings. If granted,
defendant's motion would seal an order entered by a superior
court judge denying a motion to vacate an arbitration order.
If granted, defendant's motion would result in the sealing of
dozens of pages of pleadings in a case with virtually nothing
to do with the October 14, 1998, settlement agreement and the
ongoing arbitration involving the parties to this lawsuit. Defendant
seeks to seal a table of contents and pages of legal discussion
in a judgment on the pleadings motion, none which involve any
identifiable danger to any financial, professional, or artistic
interest of defendant. Defendant asks us to seal an order which
is fully synthesized on this court's web site. Our point has
been appropriately made-except as will be noted, defendant's
overbroad sealing request seeks to seal papers in the absence
of an overriding interest."
The court also balked at sealing information already on the public
record:
"Included in the documents attached to the judicial notice
request are 20 pages of financial and accounting data. The pages
are largely blank except for specific entries relating to markets
and certain financial data. The financial information includes
proceeds in different markets for 25 different films. We asked
defendant to brief the issue of whether these matters may involve
confidential proprietary information to such a degree that the
(harmful disclosure) findings could be made. Defendant has filed
a fact specific declaration by Daniel Martinez, a senior vice
president and controller of defendant. Mr. Martinez's declaration
argues disclosure will cause 'competitive harm' to defendant
in its negotiations with competitors and customers. Based upon
Mr. Martinez's declaration and the nature of the financial data,
we ordinarily would order sealing of such matters. ... However,
the financial data at issue also appears in an unsealed portion
of the superior court file in ... Enright v. Universal City
Studios, Inc. ... in an unsealed document filed by defendant.
In the absence of any evidence of inadvertence or mistake, we
are satisfied that defendant's own voluntary disclosure of the
financial data in an unsealed document it filed in superior court
where the information has been available for public review for
over one year substantially outweighs the confidentiality interests
identified in Mr. Martinez's declaration."
The court's solution left two options to the defendant:
"Given our findings, the clerk is directed to return the
exhibits lodged conditionally under seal to defendant. Within
the next 10 days, defendant may file any documents it wishes.
Upon refiling, if such occurs, all documents will be available
to the public. If no records are refiled, the court will proceed
to rule on the mandate petition."
Back to Top
Police,
Governor put late pressures on SCA 1
SACRAMENTO (7/28/03) -- Police
agencies and Governor Gray Davis's office made separate low-key
overtures to gut the constitutional sunshine amendment last week.
In the first meeting with the author and sponsors of SCA
1, called to address the concerns of the California Highway
Patrol for its ability to keep officer safety training materials
confidential, lobbyists for several other law enforcement agencies
and professional associations also attended.
Rodger Dillon, representing Senator John Burton, the bill's author,
was joined by Tom Newton, general counsel of the California Newspaper
Publishers Association (CNPA), and Terry Francke, general counsel
of the California First Amendment Coalition (CFAC), to hear the
law enforcement concerns.
They pointed out that SCA 1 expressly provides that it does not
"repeal or nullify" existing exemptions from public
access to information, including those protecting law enforcement,
and that case law interpretation of the general law enforcement
exemption for "security procedures" holds that officer
safety training material is protected.
But the law enforcement representatives said that that case might
be undone by new litigation under SCA 1, based on its required
narrow interpretation of limits on access. The suggestion made
was that SCA 1 be amended either to eliminate the narrow interpretation
rule or to assure that no prior case law interpreting the Brown
Act or California Public Records Act would be affected.
Newton and Francke made it clear that either of these adjustments
would gut the bill and as such were not open to negotiation.
Dillon said he would mention them to Burton, the bill's principal
author, but did not expect them to be accepted.
A later meeting involving Newton and Dillon with Governor Davis'
Judicial Appointments Secretary, Burt Pines, sounded one of the
same themes: making prior case law immune from reconsideration
in the light of SCA 1. The case law the Governor has the greatest
stake in is the decision of the California Supreme Court allowing
the deliberative process privilege to be used to limit access
to documents showing how executive decisions are influenced by
both close advisors and outsiders. Pines argued for the necessity
of the privilege to assure effective decision-making.
To appear on the ballot, the measure must be passed by at least a two thirds margin in both houses, a standard easily exceeded in the Senate last month when it passed 34-0.
If placed on the ballot and passed by the voters in the March 2004 primary election, SCA 1 would add to the California Constitution, in the section providing for rights of assembly and petition, a right to informed scrutiny of government through access to meetings of public bodies and records of public agencies and officials.
Existing laws protecting individual privacy
and other allowances for confidentiality would not be swept aside,
but provisions for access would be required to be read broadly,
and limits on access interpreted narrowly. New legislation and
other legal authority limiting access would be required to be
adopted based on findings showing what interest was being protected
and why the protection was necessary.
Back to Top
A.G.:
Mug shots need not be disclosed to public
SACRAMENTO (7/14/03) -- Sheriffs
may provide--but are not required to provide--public access to
booking photos or "mug shots" pursuant to the California
Public Records Act.
So concludes an opinion
from Attorney General Bill Lockyer requested by Contra Costa
County Sheriff Warren E. Rupf.
The general answer provided in the words of the opinion's author,
Deputy Attorney General Thomas S. Lazar, is:
"A sheriff has discretion to furnish copies of photographs
of arrested persons, commonly known as 'mug shots,' in response
to a request from a member of the general public, including the
news media; however, once a copy is furnished to one member of
the general public, a copy must be made available to all who
make a request."
The rationale given is simply that the photographs constitute
part of the record of a law enforcement investigation, and therefore
are releasable at the discretion of the agency:
"We have no hesitation in finding that mug shots fall within
the 'records of investigations' exemption of section 6254, subdivision
(f). (See Loder v. Municipal Court, supra, 17 Cal.3d at
pp. 864-865; 65 Ops.Cal.Atty.Gen. 563, 567 (1982).) A mug shot
is used by the police not only to identify the person arrested,
but to determine if he or she is wanted on any other charge.
Mug shots from earlier arrests may be used during subsequent
investigations to identify individuals suspected of committing
criminal offenses."
Back to Top
SCA
1 set for first Assembly hearing Wednesday
SACRAMENTO (7/14/03) -- The bill
to place a constitutional amendment favoring open government
on the ballot will get its first Assembly Committee hearing Wednesday.
Senate Constitutional Amendment (SCA)
1 passed the 40-member Senate by a 34-0 vote on June 30.
It needs at least a two thirds vote in the 80-member Assembly
as well.
This Wednesday, July 16, the bill will be heard in the Assembly
Committee on Government
Organization. That unusually large panel includes Democrat
members Horton (chair), Corbett, Longville, Canciamilla, Chavez,
Cohn, Firebaugh, Frommer, Liu, Negrete McLeod, Calderon, Yee,
Dymally, Levine, Nuñez , Reyes, Oropeza, Wiggins and Bermudez;
and Republican members Strickland (vice chair), Harman, Wyland,
Samuelian, Maddox, McCarthy, and La Suer.
If it passes this committee, the bill will be referred to at
least one more -- on Elections,
Redistricting and Constitutional Amendments. That body's
five members are all on the Government Organization Committee,
including its chair and vice chair.
The measure is co-sponsored by the California First Amendment
Coalition and the California Newspaper Publishers Association.
It has none of the opposition that its predecessor, SCA 7, faced
last year. Both efforts had Senate President pro Tempore John
Burton (D-San Francisco) and Senator Bruce McPherson (R-Santa
Cruz) as introducing authors, and Senator Debra Bowen (D-Marina
del Rey) as co-author. Assemly Speaker Herb Wesson (D-Los Angeles)
recently signed on as principal co-author.
If placed on the ballot and passed by the voters in the March 2004 primary election, SCA 1 would add to the California Constitution, in the section providing for rights of assembly and petition, a right to informed scrutiny of government in terms of access to meetings of public bodies and records of public agencies and officials.
Existing laws protecting individual privacy
and other allowances for confidentiality would not be swept aside,
but provisions for access would be required to be read broadly,
and limits on access interpreted narrowly. New legislation and
other legal authority limiting access would be required to be
adopted based on findings showing what interest was being protected
and why the protection was necessary.
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Court:
Press aide's e-mails, cell phone data public
SAN DIEGO (7/2/03) -- The public
has a right to see the e-mails and cell phone call numbers of
the inexperienced woman the mayor appointed as his press secretary.
So concluded the California Court of Appeal for the Fourth District
in its unpublished
opinion in Holman v. Superior Court, case no D041277.
The case involves a request to the City of San Diego under the
California Public Records Act for information documenting the
activity of Elena Cristiano, whose appointment as press secretary
to Mayor Dick Murphy when he took office in late 2000 was followed
a little more than a year later by her abrupt and unexplained
removal from that post.
The Reader, a weekly newspaper, last summer published a long
report
on what it knew about how Cristiano, with little apparent relevant
experience, got the job in the first place, why she lost it,
and what if anything her city position had to do with the mentoring
friendship she enjoyed with then San Diego Padres executive Charles
Steinberg, given the Padres' successful efforts to get the city
to help finance a new downtown ballpark.
The story pivoted around a key statement:
"Whether by coincidence or not, the end of Cristiano's tenure
at city hall came just as the Padres and the city were able to
reach a final legal agreement to sell the bonds needed to build
the new ballpark."
Pursuing the matter after the first story was published, the
newspaper asked to see copies of essentially all documents --
e-mail, paper memos and correspondence, cellular and landline
phone billing records -- that would show whom Cristiano communicated
with during her tenure, and about what. It also asked for
copies of claims she had filed for long-term disability benefits
and workers' compensation.
The trial court denied the latter requests on privacy grounds;
concluded that the request for Cristiano's paper correspondence
was too burdensome because the city declared that it did not
keep copies of letters under the name of the sender, but only
under the name of the addressee or the subject matter; concluded
that the disclosure of e-mails would invade the privacy interests
of those who had been in contact with Cristiano and deter others
from using e-mail to message city officials; concluded that the
numbers of those in contact with her on her cellular phone were
also exempt under this privacy/chill rationale; and concluded
that as to the landline calls, the phone line involved was used
by several people other than Cristiano and her calls could therefore
not be distinguished from the others.
The Court of Appeal essentially agreed on all but the e-mail
and cell phone denials. As to the former, Justice Alex C. McDonald
stated for the court:
"In this case, disclosing the content of the e-mails,
at least insofar as the e-mails were shorn of information revealing
the party's e-mail address, would not offend any legally protected
privacy interest of the parties. The only arguable privacy concerns
implicated by disclosure would be that the e-mail addresses of
parties would be revealed. However, we reject the notion that
a party, having sent an e-mail to or received an e-mail from
a government official, may nevertheless claim to have retained
a reasonable expectation of privacy as to the e-mail address
from which the communication emanated. After an e-mail
is sent, the sender has no control over its distribution. The
sender usually cannot determine whether anyone has received the
message, the number or identity of persons that have accessed
the message, the locale in which the message was received, or
whether the recipient has forwarded the message to others. The
message necessarily includes the sender's e-mail address. Considering
these characteristics of e-mail, there is minimal privacy interest
in an e-mail address to be balanced against the interest of disclosure.
"The trial court struck its balance against disclosure because
it perceived there was a corollary public interest served by
not disclosing the e-mail: the concern that communications from
the public and the media to government employees would be inhibited
if the public or the media knew their e-mail addresses could
be disclosed. Although the deleterious impact of chilling communications
may in some cases clearly outweigh the public interest in disclosure
of those communications, our de novo evaluation here compels
us to strike a different balance in this case. The interest furthered
by disclosure here involves the access to "vital information
about the government's conduct of its business" : the activities
of a person hired as a staff member of the Mayor's office for
which she may have had no prior experience or training, and who
was allegedly connected to an entity (the San Diego Padres) with
whom City was then engaged in a controversial project. On the
disclosure-interest side of the scales, it appears the
only feasible way to investigate the government's conduct of
its business insofar as it hired and paid Christiano was to determine
what her daily activities included, which necessarily includes
examining her contacts (both in person and by e-mail) in her
role as a staff member. On the nondisclosure-interest
side of the scales, the chilling effect associated with revealing
e-mail addresses of those she dealt with appears minimal. We
therefore conclude the public interest served by not disclosing
the e-mail information does not clearly outweigh the public interest
served by disclosure..."
As to the cellular phone records, Justice McDonald said:
"Here, the governmental function the information sought
to illuminate was a sharply focused one: what functions were
being performed at government expense by a person who allegedly
had little or no experience and training for the position for
which she was being paid. Additionally, the nature of the information
sought by Reader satisfies the directness element because
it would be difficult to assess whether and how well Christiano
discharged her publicly-funded job without examining her contacts
with members of the public.
"We conclude the parties who called or were called by Christiano
in her governmental capacity had a correspondingly diminished
interest in retaining the privacy of those contacts, and the
limited scope of the disclosure here--the telephone numbers of
those contacting a specific governmental employee for a limited
period of time--will have a de minimus chilling impact on future
communications. Because the disclosure here sought appears necessary
(or even indispensable) to furthering the particularized governmental
accountability concerns raised by Reader, the twin considerations
supporting nondisclosure do not clearly outweigh the substantial
public interest in ensuring governmental accountability."
Federal
FOIA officers briefed on homeland secrecy
WASHINGTON, D.C. (7/14/03) -- The
safeguarding of "homeland security-related information"
was the subject of a FOIA Officers Conference conducted here
on June 25.
The briefing provides the best insight yet on how FOIA access
may be reduced when meshed with new secrecy laws and policies
established to disable terrorism.
The Justice Departments Office of Information and Privacy (OIP) gathered the principal administrative FOIA officers of all federal departments and agencies subject to the Freedom of Information Act for a wide-ranging review of FOIA-related issues, policies, and legal authorities pertaining to homeland security that have arisen since September 11, 2001.
The program placed special focus on the role of the new Department of Homeland Security (DHS) and its potential relations with other federal agencies, in activities that pertain either directly or indirectly to the administration of the FOIA. It also provided a discussion of recently decided FOIA cases addressing homeland security concerns.
The topics, as described by the presenters,
included the following:
SCA
1 passes Senate, gets Wesson as co-author
SACRAMENTO (6/30/03) -- The Senate
passed CFAC's open government constitutional amendment bill today
34-0, and Assembly Speaker Herb Wesson became a co-author.
That will help greatly in the effort to get a two thirds vote
in the Democrat-controlled lower house now, although Republican
votes will also be needed for the supermajority required to place
the open government amendment to the state constitution on the
ballot for voter approval in 2004.
SCA
1, co-sponsored by the California Newspaper Publishers Association,
has none of the opposition that its predecessor, SCA 7, faced
last year. Both efforts had Senate President pro Tempore John
Burton (D-San Francisco) and Senator Bruce McPherson (R-Santa
Cruz) as introducing authors, and Senator Debra Bowen (D-Marina
del Rey) as co-author. Wesson (D-Los Angeles) becomes a "principal
co-author."
The measure passed the Senate Appropriations Committee 11-0 last
week.
It would add to the constitution, in the section providing for
rights of assembly and petition, a right to informed scrutiny
of government in terms of access to meetings of public bodies
and records of public agencies and officials.
Existing laws protecting individual privacy and other allowances
for confidentiality would not be swept aside, but provisions
for access would be required to be read broadly, and limits on
access interpreted narrowly. New legislation and other legal
authority limiting access would be required to be adopted based
on findings showing what interest was being protected and why
the protection was necessary.
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Bill on special districts' records destruction
pulled
SACRAMENTO (6/26/03) -- After CFAC
made its concerns known, a bill allowing special districts to
destroy their records under certain circumstances was sidelined
for 2003.
AB
474 by Assembly Member Simon (D-Salinas) and sponsored by
the California Association of Sanitation Agencies, passed the
Assembly and was due to be heard today in the Senate Committee
on Local Government.
The law now requires special districts (any local government
"district" other than a school or community college
district) to preserve records for at least two years. The Secretary
of State has developed guidelines
for records management by cities and counties, but not special
districts.
AB 474 would give a special district the option of following
the guidelines - - or of destroying any category of records if
it adopted a resolution finding that doing so would not adversely
affect any interest of the district or of the public and if it
kept a list of the categories of records destroyed.
As a limit on that authority the bill sets up a list of records
not to be destroyed, including any document that:
"(1) Relates to formation of the district.
"(2) An ordinance adopted by the district.
"(3) Minutes of any meeting of the legislative body of the
district.
"(4) Relates to any pending claim or litigation.
"(5) Is the subject of any pending request pursuant to the
California Public Records Act (Chapter 3.5 (commencing with Section
6250) of Division 7 of Title 1).
"(6) Relates to any pending construction that the district
has not accepted or as to which a stop notice claim legally may
be presented.
"(7) Relates to any debt of the district.
"(8) Relates to the title to real property in which the
district has an interest, or to liens thereon.
"(9) Relates to any nondischarged contract to which the
district is a party.
"(10) Has not fulfilled the administrative, fiscal, or legal
purpose for which it was created or received."
The committee consultants asked CFAC for a reaction to the bill,
and General Counsel Terry Francke responded as follows.
"I would strongly urge the addition of the following categories to the proposed Section 60201(d) non-destroy list:
"1. Documents of any kind made available to a legislative body in connection with a meeting governed by the Brown Act, which are accessible to the public pursuant to Government Code 54957.5. These materials are a natural and necessary supplement to the meeting minutes, showing how the issues were presented to the body in the first place. This policy would parallel the function of the Legislative Open Records Act's Government Code Section 9080, providing the paper trail supporting legislation.
"2. Contracts and other documents relating to compensation of individual officers or employees,
"The Sacramento Bee has for months been documenting practices in expense reimbursement in a local water district that are anomalous to say the least, and I've come across an even more extreme picture in a community college district in Southern California, where the board just adopted a policy that travel expenses will be covered by a lump sum payment at the rate of .36 per highway mile to and from the destination, wherever it may be or whatever form of transportation is used, at whatever actual cost. If the trip is made by air, beyond a certain distance the recipient will get to keep the change, which could be substantial, since the rule applies to a trip to Chicago or New Orleans as well as one to San Diego. As for independent contractors, the Modesto Bee has been covering a story about cronyism between a county executive and his business partner that should raise eyebrows. That kind of reporting can't be done if the records are gone.
"I would also urge modification of (d) (4) and (5) as follows:
'(4) relates to any pending claim or litigation, or any settlement or other disposition of litigation within the past two years.'
"Local agencies are often very resistant to providing access to settlements, which can be quite expensive or otherwise consequential even in terms of policy concessions, and which often provide clues to things that have gone awry in the government. Settlements are accessible under the California Public Records Act, but that point is of no help if the records have been destroyed.
'(5) is the subject of any pending request made pursuant to the California Public Records Act, Chapter 3 (commencing with Section 6250 of Division 7 of Title 1, whether or not the district maintains that the record is exempt from disclosure, until the requester has been provided the requested access or has supplied a written statement disclaiming intent to pursue access through litigation pursuant to Section 6258.'
"The risk is that a district will conclude that since a record, in its estimation, is not accessible to the public anyway, it is suitable to destruction. And if it's told the requester that the record is not accessible, the request is no longer 'pending.' When that happens, as noted above, the issue can't be litigated."
The hearing on the bill was canceled, and
the measure will probably go to an interim hearing this fall.
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CFAC
Board: Continue backing SCA 1, with warts
SACRAMENTO (6/6/04) -- Directors
of the California First Amendment Coalition decided to continue
as co-sponsors of a bill to make open government a constitutional
right.
That decision, which became apparent as reponses from a majority
of the board's 30 members came in to CFAC Executive Director
Kent Pollock last week, represents a deliberate commitment to
stay on as one of two major proponents of Senate Constitutional
Amendment (SCA) 1 by Senate President pro Tempore John Burton
(D-San Francisco).
The issue was presented to the board for re-evaluation because
amendments
to the bill last week provide the Legislature as an institution
with more insulation from the effects of SCA 1 than any other
public or private interest.
A majority seemed to agree with CFAC staff that while the extent
of the legislative exemption might be offensive in principle,
it appeared to be the final non-negotiable price to pay for having
the Legislature place SCA 1 on the ballot for statewide vote
next year. The only alternative would have been to solicit
citizens' signatures for an initiative ballot measure, estimated
to be a massive effort requiring between one and two million
dollars.
CFAC staff also pointed out that if the recent language proved
to be too great a gift of secrecy to lawmakers in the future,
it could always be changed or removed by a direct initiative.
Meanwhile, the good done by SCA 1 -- especially reining
in the tendency of officials and courts to make government less
open via expansive interpretation of exemptions from the open
meeting and public records laws -- was viewed as being worth
whatever limitations were kept in place concerning state lawmakers.
Court:
FOIA e-request depends on agency norm
SAN FRANCISCO (6/3/03) -- How burdensome
a FOIA request for data in a "zipped" format is depends
on the agency's overall practices in moving information around.
So concluded the U.S. Court of Appeals for the Ninth Circuit
in its opinion
in TPS, Inc., v. Department of Defense, case no. 00-15144.
The case centers in particular on how far the Pentagon must go
in honoring the format specifications of a data requester under
the Freedom of Information Act -- i.e. must it supply "zipped"
compressed files?
The Pentagon argued, and the U.S. District Court agreed, that
the standard is not whether it transmitted zipped data as a matter
of "business as usual" in general, but whether it did
so in responding to FOIA requests in particular -- which the
Pentagon said it did not.
But the Ninth Circuit said this standard was in error. In
the words of Judge M. Margaret McKeown for the court:
"We resolve as a matter of law that FOIA does not restrict
the "business as usual" inquiry to whether a government
agency regularly reproduces documents in a specified format solely
for FOIA requests. Instead, the relevant inquiry is whether,
in general, the format is one that is "readily reproducible"
by the agency. In evaluating reproducibility, the agency
should employ a standard of reasonableness that is benchmarked
against the agency's "normal business as usual approach"
with respect to reproducing data in the ordinary course of the
agency's business."
Comment: The court's reading
of the FOIA standard comes very close to the comparable policy
in the California Public Records Act, which states at Government
Code Section 6253.9:
"(a) Unless otherwise prohibited by law, any agency that
has information that constitutes an identifiable public record
not exempt from disclosure pursuant to this chapter that is in
an electronic format shall make that information available in
an electronic format when requested by any person and, when applicable,
shall comply with the following:
(1) The agency shall make the information available in any electronic
format in which it holds the information.
(2) Each agency shall provide a copy of an electronic record
in the format requested if the requested format is one that has
been used by the agency to create copies for its own use or for
provision to other agencies...
SCA
1 amendment protects lawmakers' secrecy
SACRAMENTO (6/2/03) -- The proposed
constitutional amendment to make California government more open
is reserving considerable secrecy to lawmakers.
An amendment to SCA
1 by Senate President pro Tempore John Burton (D-San Francisco)
is being added despite best efforts of the bill's co-sponsors
to limit its scope.
The new language likely to be amended into the measure soon on
the Senate floor states, as a new paragraph 6:
"Nothing in this subdivision repeals or nullifies, or supersedes
or modifies protections for the confidentiality of legislative
proceedings and records of the Legislature, its members, staff,
committees and caucuses provided by Article 4, Section 7 of this
Constitution, by state law, or by legislative rules adopted in
furtherance of those provisions; nor does it affect the scope
of permitted discovery in judicial or administrative proceedings
regarding deliberations of the Legislature, its members, staff,
committees and caucuses in judicial or administrative proceeding."
The California Newspaper Publishers Association and the California
First Amendment Coalition, co-sponsors of SCA 1, have attempted
to keep the legislative paragraph from actually increasing the
level of secrecy now enjoyed by the Legislature under either
Article 4, Section 7 (which requires open sessions and hearings
generally but allows some closed meetings such as for party caucusing,
personnel review and security discussions), or the Legislative
Open Records Act.
A key question remaining is what if any "state law"
beyond these known authorities would permit unanticipated closure
of gatherings or records. This issue becomes more acute because
paragraph 6 does not simply preserve current authority for confidentiality
but could be cited in the future as well.
The language has been insisted on not by Burton personally but
by legislative staff reporting to him, and in particular Greg
Schmidt, executive officer of the Senate Rules Committee and
Secretary of the Senate.
Earlier Schmidt and others working with him had proposed to insert
into paragraph 6 an exception for closed meetings and records
protecting an undefined "legislative privilege," and
later an attempt was made to allow lawmakers to rely on secrecy
provisions of federal law, currently or as they might arise in
the future. CFAC and CNPA successfully rejected those provisions
as having no known limits, and actually inviting a search for
novel theories under which SCA 1 could be evaded.
CNPA has accepted pagagraph 6 as an amendment to the legislation
because the organization believes the paragraph is necessary
for passage in both the Senate and Assembly, according to CNPA
General Counsel Tom Newton. A CFAC staff analysis of the
situation will be distributed to CFAC's board this week to determine
if the board wants to continue to sponsor SCA 1 despite the amendment.
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SCA
1 passed by two Senate policy committees
SACRAMENTO (5/27/03) -- The proposed
open government amendment to the state constitution has passed
its first two commitee tests by unanimous votes.
Senate Constitutional Amendment (SCA) 1 was approved by a 10-0
vote in the Senate Committee on Governmental Organization on
May 13, and by a 4-0 vote in the Senate Committee on Constitutional
Amendments on May 23.
As amended, the bill states that the meetings of public bodies
and the writings of public officials and agencies are open to
public scrutiny, that laws furthering the right of access are
to be broadly construed, and that those limiting access are to
be narrowly construed. Any future legal authority limiting
access must be adopted with findings demonstrating the interest
to be protected and the need to protect it.
At the same time, SCA 1 states that the constitutional right
to privacy, and statutes or other laws "to the extent that
(they protect) that right," are not superseded or modified,
and that the privacy right itself is not to be narrowed. Also,
statutory limits on access in place at the time of SCA 1's passage
would not be "repealed or nullified."
Based on these qualifications, the two most formidable sources
of opposition -- Attorney General Bill Lockyer and the League
of California Cities -- have now formally announced support of
the bill. It is expected that an amendment recognizing
due process protections for, among other things, intellectual
property, will result in removal of prior opposition by business
sectors that provide information to state regulators on a confidential
basis.
The only major remaining source of potential opposition -- the
Legislature itself -- has a constitutional open meeting mandate
governing its own proceedings, but one with limitations for meetings
on safety and security, personnel review and caucus deliberations.
Legislative records are also subject to access limitations
under a statute, the Legislative Open Records Act. SCA
1's sponsors, the California First Amendment Coalition and the
California Newspaper Publishers Association hope that an express
reference to these recognized areas for legislative confidentiality
would overcome lingering doubts in the lawmakers' minds.
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Court:
County-managed court finances are open
SACRAMENTO (5/27/03) -- When a
superior court has its business dealings handled by the county
finance department, those records are subject to public disclosure.
So concluded the California Court of Appeal for the Third District