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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2004

Supreme Court adds 'survivors privacy' to list of FOIA disclosure exemptions

WASHINGTON (3/30/04) -- The U.S. Supreme Court unanimously rejected efforts to see pictures taken at the scene of the death of the late Vince Foster, deputy counsel to the Clinton White House in a decision that journalism organizations predicted would prevent citizens and reporters from looking into suspicious deaths.

Legislature continues its assault on the public's right to know

SACRAMENTO (3/29/04) -- Last year at about this time, the California Newspaper Publishers Association governmental affairs staff reported "an unprecedented assault on the public's right to know." CNPA staff wrote it was "shocked with both the volume an stridency of bills aimed at seriously curtailing public access to public records and public court records."  

Louisiana legislator proposes bill to allow minors public records access

LOUISIANA (3/24/04) -- A state representative is sponsoring an amendment to the Louisiana Public Records Act that would give minors access to public records. Louisiana is the only state that requires a person to be "of the age of majority" - 18 in Louisiana - to have access to public documents.  
What are ten most wanted documents?

WASHINGTON, DC (3/21/04) -- What would you most want government to show the public? The 28 secret pages of Congress' joint inquiry into intelligence failures leading up to 9/11? Threats to community safety posed by chemical plants? How the government has used Patriot Act powers? Or a mailing address for the nation's "spy court"? Openthegovernment.org, a new non-profit organization, is inviting the public to help determine the ten most wanted government documents for 2004.

LA Cardinal has novel secrecy defense

LOS ANGELES (3/17/04) -- Enmeshed in a high-stakes battle to maintain the secrecy of church documents involving priests accused of molesting children, Los Angeles Cardinal Roger M. Mahony has adopted a legal strategy more aggressive than that of any other bishop in the country, according to scholars and attorneys. At the center of the fight are thousands of pages from priest personnel files that Mahony has succeeded for more than a year and a half in keeping from prosecutors, lawyers for victims and the public.

NEWSLINK: Tribes subject to campaign sunshine (3/4/04)

NEWSLINK: Board's secrecy about probe invites suit (2/29/04)

NEWSLINK: Some criminal case records online (2/28/04)

Cost analysis supports copy fee of 12 cents/page (2/23/04)
 
Court: Disclosure law dictates name-clearing chance (2/20/04)

Bill would open documents presented to P.U.C. (2/19/04)

Court: "Derivative" officer information shareable (2/18/04)

NEWSLINK: Board won't release exact salary data (2/18/04)

"Pentagon Papers" source to receive FOI award (2/17/04)
 
NEWSLINK: Panel tackles e-mail trashing issue (2/17/04)
 
NEWSLINK: What don't the trustees want to know? (2/17/04)

NEWSLINK: Super-privacy sought for public officials (2/13/04)

NEWSLINK: Insurer activity data -- trade secrets? (2/12/04)

Lockyer seeks sunshine on nonprofit fundraising (2/12/04)

NEWSLINK: All's not sunny in the Sunshine State (2/9/04)

NEWSLINK: Sunshine laws empower ordinary citizens (2/6/04)

NEWSLINK: Jackson case secrecy points to trend (2/3/04)

NEWSLINK: Sex predator's destination kept secret (2/2/04)

NEWSLINK: Governor reneging on promise to be open (1/29/04)

NEWSLINK: Privatized theater keeping books closed (1/26/04)

CFAC, publishers begin to chart SCA 1 campaign (1/26/04)

IDEALINK: Copyright's threat to the public domain (1/25/04)

Court lets stand decision on public payroll data (1/22/04)

Long Beach sued for records on liner Queen Mary (1/22/04)

Paper wins access to internal probe documents (1/20/04)

Sunshine Amendment now a choice for the people (1/12/04)

Sealed records in triple murder case become public (1/8/04)

Feinstein, Boxer disclose votes on Iraq appropriation (1/5/04)

Cost analysis supports copy fee of 12 cents a page

SACRAMENTO (2/23/04) -- The Department of Corrections charges only 12 cents per page for copying public records. The modest rate reflects a careful cost analysis.
 
About a year ago -- February 12, 2003 -- the department made operative the following policy, found in Title 15, California Code of Regulations Section 3260.1:
 
"The Department shall charge a requester a fee of 12 cents per page, plus postage, to duplicate and mail a public record as defined in the California Public Records Act, Government Code Sections 6250 et seq."
 
The regulation was adopted in a formal rulemaking process whose rationale for the 12 cent rate, together with public comments in reaction, is found in a "Revised Statement of Reasons" published prior to the adoption.
 
The statement, which could be used as a model analysis for other public agencies setting or revising their fees, has the following summary:

"The California Department of Corrections (CDC) proposes to amend Section 3260.1 of the California Code of Regulations, Title 15, related to public records duplication. The California Government Code (GC) Section 6250 et seq. establishes the California Public Records Act (PRA) and states that the 'access to information concerning the conduct of the people's business is a fundamental and necessary right of every person in this state.' GC Section 6253(b) recognizes that the Department 'shall make the records promptly available to any person upon payment of fees covering direct costs of duplication, or a statutory fee if applicable.' The proposed regulation adopting CCR, Title 15 Section 3260.1 will bring the Department into compliance with the California PRA.

"Section 3260.1 is adopted to allow the Department to charge a requestor a fee of 12 cents per page plus postage to duplicate and mail a public record as defined in the California PRA. Identifying the specific costs involved with the duplication and mailing of public records requests will allow for department wide standardization of this process to ensure that all members of the public have equal access to public records as defined in GC Section 6250 et seq. The CDC has determined the actual cost of duplication to be $.115 (rounded up to $.12) per page. This determination was made based on a study completed by the CDC entitled 'Copying charges under the Public Records Act,' dated July 28, 2000. The CDC has determined the actual cost of duplication by adding the calculations based on CDC's headquarters administration, which includes actual equipment costs, paper costs, and personnel costs, which are as follows:

"Equipment cost: Equipment cost is the average copier cost per copy through the expected lifetime of the copier. This cost was calculated by taking the lowest average copier cost per copy: $.004 + the highest average cost per copy: $.0347 divided by 2 = $.019.

"Paper cost: Paper costs are based upon the last State contract with Office Depot for 8.5" x 11", 20 pound, recycled bond paper at $.005 per sheet.

"Personnel cost: Personnel costs is the average total compensation for all five job classifications that CDC has identified as the most common office support or clerical classifications to make copies including benefits and total annual compensation. This cost was broken down into labor costs (for copying a one page document) along with stapling and unstapling costs. The labor cost to copy a one-page document was calculated as follows:

"$34,983 (average salary) ÷ 1,778 hrs (work hrs per year) ÷ 60 min. ÷ 60 seconds x 14.88 (average length of time to make one copy) = $.081. The CDC has determined that in order to administer a charge for the unstapling and restapling of documents, the Department must include a separate per staple charge and, while few requests would not involve any staples, most would involve one or more, and some would involve heavy-duty staples, which are very difficult to remove. A regulation that tried to cover every conceivable option under these circumstances would be difficult and time consuming to administer and not serve the public interest. Therefore, for administrative simplicity, a charge of $.01 (one cent) will be incorporated into the overall personnel cost. The cost was calculated by taking the total labor costs, $.081 + charge for stapling $.01 = $.091. Based on this information the CDC has determined that the direct cost of duplication to provide one copy of a requested public record is $.12 per page (standard letter or legal size) based on the following equation:

"Equipment cost $.019
Paper cost $.005
Personnel cost $.091

"Actual cost of copying $.115 (rounded up to $.12)"

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Court: Disclosure law dictates name-clearing chance

SEATTLE (2/20/04) -- If the public has access to stigmatizing information in a public employee's personnel file, the employee must be given a name-clearing hearing.   So concluded the U.S. Court of Appeals for the Ninth Circuit in its opinion in Cox v. Boxer, case no. 00-35887.   The court ruled that several officials of Spokane County, Washington were exposed to personal liability for reputational damage to a former employee they had fired. The basis of their liability is that they should have known that in placing a "stigmatizing" summary of the employee's alleged misconduct in his personnel file -- which under state law was accessible to the public and was in fact requested by a newspaper -- they should have granted him (which they did not) the opportunity of a name-clearing hearing.   Such a hearing is a common component of dismissing a public employee if the reasons for the dismissal will be made public. It is viewed as a consequence of the employee's due process right under the Fourteenth Amendment to protect his liberty interest in reputation, even where his property interest in keeping the job has been protected by some other form of due process otherwise.   Here the officials took the position that simply placing a letter summarizing the employee's misconduct in his personnel file did not constitute a disclosure requiring a name-clearing hearing. The Ninth Circuit disagreed. In the words of Circuit Judge Johnnie B. Rawlinson for the two-judge majority,   "There is no doubt that the termination letter charged improper conduct and could impair Cox's reputation for honesty or morality. Accordingly, Defendants knew or should have known that there would be 'some public disclosure' of the charges contained in the termination letter of a public employee embroiled in a dispute of public interest. By 1998, it was clearly established that such public disclosure meant that the procedural protections of due process applied."   Comment: The court cites an earlier case involving a California community college employee, where the stigmatizing information was purged from the employee's file. In a footnote, the court observes that California law itself requires a name-clearing hearing ("notice and an opportunity to comment") prior to entry of such information in the file, adding that in any event "the California Public Records Act specifically exempts from disclosure '[p]ersonnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy.' Cal. Gov' t Code 6254(c)." That exemption, however, has been interpreted not to bar disclosure of confirmed findings of serious misconduct leading to discipline. The logic of this case suggests that in view of that outcome, California government employers should always give terminated employees a name-clearing opportunity -- or risk personal liability should the employee decide to sue them for leaving his name tarnished and exposed to public access.

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Bill would open documents presented to P.U.C.
SACRAMENTO (2/19/04) -- Information furnished to the Public Utilities Commission by utility companies would be presumed public under newly introduced legislation.   SB 1488 by Senator Debra Bowen (D-Marina del Rey) would reverse the default secrecy status that the law (Public Utilities Code Section 583) now gives to such material. But it would also criminalize leaks of information deemed, as an exception, to be confidential.   As summarized by the Legislative Counsel's office:   "Under existing law, the Public Utilities Commission has regulatory authority over public utilities. Every public utility is required to furnish such reports as the commission may require. No information furnished to the commission by a public utility, except those matters specifically required to be open to public inspection, are open to public inspection or made public except by order of the commission or a commissioner in the course of a hearing or proceeding. Any present or former officer or employee of the commission who divulges any information in violation of these provisions is guilty of a misdemeanor.

"This bill would provide that all information furnished to the commission by a public utility, except those matters specifically required to be closed to public inspection, are open to public inspection and may not be withheld from public inspection except by order of the commission or a commissioner in the course of a hearing or proceeding. "The bill would further provide that any present or former officer or employee of the commission who divulges information made confidential by the commission is guilty of a misdemeanor."

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Court: "Derivative" officer information shareable

SAN DIEGO (2/18/04) -- Attorneys having used a "Pitchess" motion to identify sources of complaints against peace officers may show others what those sources tell them.
 
So ruled the California Court of Appeal for the Fourth District in its opinion in Ebbert v. Superior Court, case no. D042600.
 
The case involves the law surrounding the use by criminal defense or civil plaintiffs' lawyers of a special motion requesting access to information from a peace officer's personnel file -- usually information about citizens' complaints against an officer -- either to impeach the officer's credibility or to suggest a tendency toward misconduct in the line of duty.
 
This "Pitchess" motion constitutes the only mechanism by which such information can be obtained, since it is otherwise confidential and not, for example, subject to disclosure under the California Public Records Act. Case law holds that when a criminal defendant or civil party obtains access to complaint information (who made the complaints and their contact information) using the motion, that party may not share that information with those involved in other cases.
 
Left open has been the question of whether the no-sharing rule applies to information that is developed by the party's own investigation, i.e. interviewing complainants named in the officer's file.
 
This case concludes that:
 
1. The product of such an independent investigation -- interviews and other material -- is not confidential and can be shared with other parties in other cases so long as the identity and contact information is kept confidential.
 
2. If a party in a separate subsequent case has used a Pitchess motion to obtain names and contact information of complainants against a given officer, and if the information is the same as the same as provided to a party in an earlier separate case pursuant to that party's own Pitchess motion, the second party can get from the first both the identity and contact information and any investigative material derived from interviews. This means that the second party, having used a Pitchess motion to discover a duplicative complainant list about the same officer, need not conduct a duplicative investigation into what the complainants have to say, but may obtain their statements directly from the first party.

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"Pentagon Papers" source to receive FOI award

SAN FRANCISCO (2/17/04)-- Former Pentagon analyst Daniel Ellsberg, who leaked the "Pentagon Papers" in 1971, is soon to be honored by a journalist's group here.

The Northern California Chapter of the Society of Professional Journalists will present Ellsberg with its Norwin S. Yoffie Career Achievement Award for his lifelong commitment to combating government secrecy.

Ellsberg and 13 other James Madison Award winners will be honored at a dinner ceremony on Tuesday, March 16, 2004, at Sinbad's Restaurant, Pier 2, San Francisco. A complete list of this year's winners is below.

The James Madison Freedom of Information Awards, named for the creative force behind the First Amendment, honor local journalists, organizations, public officials, and private citizens who have fought for public access to government meetings and records, or have promoted the public's right to know, publish, broadcast, and speak freely about issues of public concern.

Award winners are selected by the Northern California Chapter's Freedom of Information Committee. The Norwin S. Yoffie Career Achievement Award is named in memory of the former publisher and general manager of the Marin Independent Journal, who gave many years of distinguished service to SPJ and the cause of freedom of information.

Yoffie Career Achievement --Daniel Ellsberg
In the 33 years since his release of the Pentagon Papers, Ellsberg has continued to write and lecture on the dangers of excessive government secrecy. In 2002, he published "Secrets: A Memoir of Vietnam and the Pentagon Papers," which exposes the official culture of secrecy and how it distorts the policy-making process. For a generation, Ellsberg's courage in leaking the Pentagon Papers has served as inspiration for countless other journalists, whistleblowers, and freedom of information advocates in their own battles against government secrecy.

Journalists -- Kim Curtis and Robert Porterfield, Associated Press
Curtis and Porterfield made extensive use of the Public Records Act in investigating California's compliance with Megan's Law. They ultimately discovered that the state had lost track of more than 33,000 convicted sex offenders. The report prompted newspapers in several states to investigate their own state's compliance.

News Organizations

1. Modesto Bee
The Bee receives this award for its extensive efforts to preserve public access to police and court records and proceedings in three high-profile investigations: the Laci Peterson case, the criminal investigation of the Modesto mayor, and the arrest of a gang of home invaders. The Bee acted both on its news and editorial pages and in the courts.

2. Red Bluff Daily News
The Daily News receives this award for its extensive use of the Public Records Act in investigating, reporting and editorializing about a secret employment termination settlement between the City of Red Bluff and its former police chief.  The Daily News took the city to court and forced the city to acknowledge the existence of a settlement agreement and to disclose large portions of it.

3. The Reporter, Vacaville
The Reporter is recognized for the comprehensive public records compliance audit it performed and for running a series of articles and editorials regarding its results.  Using community volunteers, the paper carried out over 50 requests over a two month period.

4. ANG Newspapers, The (Hayward) Daily Review, Oakland Tribune
ANG Newspapers receives this award for the efforts of its publications in aggressively pursuing access to governmental records and court proceedings. Specifically recognized is the Daily Review's pursuit of Hayward Unified School District internal investigation records after two district administrators were seen destroying agency records, and the Oakland Tribune's efforts to unseal court records.

Community Media

1. San Francisco Bay View
The Bay View is recognized for uncovering critical issues in the African American community frequently missed by many mainstream publications and for defending the public's right to know about issues ranging from police violence to environmental racism.

2. San Francisco Liberation Radio
SFLR receives this award in recognition of its fight in defense of broadcast freedom in the face of the seizure of its equipment by federal and local law enforcement in October 2003.  SFLR has for years been a strong proponent of low-power FM broadcasting.

Government Officials -- Sen. John Burton and aide Rodger Dillon
Senator Burton and his staff member Rodger Dillon receive this award in recognition of their efforts in successfully shepherding the Sunshine Amendment through the Senate and onto the November ballot. If passed, the Sunshine Amendment will significantly strengthen the public's freedom of information rights.

Electronic Access -- U.S. Court of Appeals for Ninth Circuit and its Public Information and Community Outreach Program, David Madden, Public Information Officer
The Ninth Circuit and its Public Information and Community Outreach committee receives this award in recognition of its community outreach efforts to educate the public about the operation of the court, bring together court officials and the media, and ensure optimal public and media access to court records and proceedings.  The Court is due special recognition for facilitating the live broadcast of the oral arguments on the challenges to the 2003 gubernatorial recall election.

Cartoonists --Cartoon Art Museum and Rex Babin, Sacramento Bee
The Cartoon Art Museum  and Rex Babin, the editorial cartoonist for the Sacramento Bee, receive this award in recognition of their efforts to present to Northern California  "Too Hot to Handle," an exhibit showcasing over 60 editorial cartoons and comic strips produced after 9/11/01.  The exhibit forcefully raised issues of freedom of artistic expression and the role of the editorial cartoonist in stimulating public debate.

Public Service -- Working Assets Long Distance
Working Assets Long Distance is recognized for providing emergency funding that allowed several high school newspapers in Oakland to continue publishing.

Legal Counsel -- Joshua Koltun, Piper Rudnick LLP
Koltun is recognized for his outstanding service as the SPJ of Northern California delegate on the San Francisco Sunshine Ordinance Task Force.

Distinguished Service -- Tricia Taborn
Taborn is recognized for her years of extraordinary service to the Society of Professional Journalists Northern California Chapter in its efforts to enhance freedom of information. 

Tickets for the Madison Awards dinner cost $45 for SPJ members, $55 for non-members, and $40 for students. For information about the awards dinner, call (510) 540-8973.

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Lockyer seeks sunshine on nonprofit fundraising

SACRAMENTO (2/12/04) -- Attorney General Bill Lockyer has unveiled legislative reforms to strengthen the accountability and oversight of nonprofit organizations and their fundraising.   The measures proposed include setting new audit requirements -- with audit reports available to the public, strengthening governing boards' control over executive compensation and solicitation campaigns, and barring unapproved fundraising payments to celebrities.

"The vast majority of charities provide valuable, needed services to our communities and do so in a manner that complies with the law and basic principles of good governance and sound financial management," said Lockyer. "But our own investigations and developments across the country show that bad actors are giving nonprofits a black eye. These reforms aim to help charities and the people they serve, and shore up donor confidence in charitable giving."

Lockyer's reform package will be carried in the Legislature by Sen. Byron Sher (D-Stanford).

The reforms would require large nonprofits with gross revenue of $500,000 or more in any fiscal year to prepare annual financial statements audited by an independent certified public accountant. Charities would have to make the audited financial statements available to the Attorney General's Office and members of the public.

Audited financial statements prepared independent of the requirements imposed by Lockyer's proposal also would have to be made available to the public and the Attorney General's Office.

Under the reforms, nonprofit corporations that meet the $500,000 threshold would have to establish and maintain independent audit committees, a provision similar to a requirement imposed on for-profit companies by the federal Sarbanes-Oxley Act. Members of the nonprofit's finance committee and staff – including the president or chief executive officer (CEO), and treasurer or chief financial officer (CFO) – would be prohibited from serving on the audit committee.

"By providing more accurate, detailed and useful information about nonprofits' finances, independent audits will enhance the ability of governing boards and the Attorney General's Office to assess charities' operations and flag potential problems," said Lockyer.

A second major aspect of the package strengthens regulation of commercial solicitation campaigns conducted on behalf of nonprofits. These provisions largely grew out of Lockyer's investigation of Hollywood fundraiser Aaron Tonken, who failed to register with the Attorney General's Office as required by law.

Lockyer sued Tonken in March 2003, alleging he defrauded charities and their donors, diverted donations to bank accounts he controlled and refused to account for more than $1.5 million in contributions to six charitable events he agreed to produce. Lockyer's reforms would require commercial fundraisers, within five days of receiving donations, either to deposit the funds in a bank account controlled by the charity, or give the money directly to the charity.

The Attorney General's investigation of Tonken also revealed he provided celebrities millions of dollars in cash, gifts and travel to appear at charity fundraising events. The reforms would prohibit such payments without prior, written approval from the nonprofit's governing board or CEO.

Lockyer's package also would bar nonprofits from hiring commercial fundraisers who are not registered with the Attorney General's Office. Additionally, charities and commercial fundraisers would have to enter written contracts for each solicitation campaign. The contracts, among other provisions, would have to specify the charitable purpose of the campaign, the fundraiser's fee, the restrictions on payments to celebrities and the requirement that donations be turned over to the charity or its controlled bank account within five days. To aid enforcement, the contract would have to be submitted to the Attorney General's Office at least 10 working days prior to the start of the campaign.

The reforms also would require commercial fundraisers and nonprofits to provide more detailed disclosure to potential donors about fees paid to commercial fundraisers. If asked, the commercial fundraiser or charity would have to disclose: the amount of the paid solicitor's fixed fee, and what percentage of the total donations the fee would represent; or the fundraiser's percentage fee and how much of the total donations the charity would retain after subtracting the fee.

Under other reforms in the package, people soliciting money for charitable purposes would be barred from engaging in certain deceptive acts. The prohibited conduct would include using a symbol associated with a nonprofit without permission or using a name so similar to that of another organization that it would deceive donors. Additionally, solicitors could not say that tickets for an event will be donated for use by others unless a charitable organization had agreed to accept a certain amount of tickets. The total number of donated tickets could not exceed the lesser of the total commitments received from charities or the capacity of the event site.

Revelations of excessive compensation and benefits provided executives of foundations and other charitable organizations spurred another proposal in the reform plan. Under this provision, the governing boards of foundations and other nonprofit entities would have to review and approve at least annually the compensation and benefits paid to the president or CEO, and the treasurer or CFO.

Lockyer stressed the objective of his reform plan was to help nonprofits. "Everybody wins – charities, donors and the community – if nonprofits and fundraisers operate lawfully and soundly, and are subject to effective oversight," said Lockyer. "These reforms help achieve those goals."

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CFAC, publishers begin to chart SCA 1 campaign

SACRAMENTO (1/26/04) -- Pre-campaign planning to assure passage of the Constitutional Sunshine Amendment on the ballot in November is about to begin.   The California First Amendment Coalition (CFAC) and the California Newspaper Publishers Association (CNPA) will host a meeting at CNPA's offices tomorrow to strategize the effort to promote voter approval.   The co-sponsors of SCA 1, which placed the amendment on the ballot recently, have invited a diverse group of open government supporters, including representatives from Common Cause, the League of Women Voters, the League of California Cities, the Society of Professional Journalists, the California Society of Newspaper Editors, ACLU and others to a meeting at CNPA's offices to organize a campaign in support of the Constitutional Sunshine Amendment.

The amendment shifted from a legislative issue to a campaign on January 12 when the Assembly approved SCA 1 (Burton) on a vote of 78-0. The vote capped a two-year effort by Burton, CFAC and CNPA to bring to the voters the final decision of whether to make access to public records and open meetings a civil right of every Californian.

The agenda for the organizational meeting will concentrate on developing a public awareness campaign through grass roots coalition building, town hall meetings, public official and public figure endorsements, public service announcements and opinion pieces.   To join the campaign, to receive updates on its progress or to plan an event in your community, please send an email message to CNPA General Counsel Tom Newton or CFAC Executive Director Kent Pollock.

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Court lets stand decision on public payroll data

SAN FRANCISCO (1/22/04) -- The California Supreme Court has let stand a decision that most public employees have a right to prevent their pay becoming publicly known.   The court refused either to review or remove from case law precedent the opinion of the First District Court of Appeal last October concluding that the California Public Records Act does not necessarily mandate disclosure of a named public employee's actual earnings unless he or she is employed by an individual contract -- a relationship confined to top agency executives.   But while Teamsters Local 856 v. Priceless, LLC thus remains citable authority, the parties are going back to the trial court to argue whether any special public interest requires disclosure in that case. It 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 and the San Jose Mercury News filed suit to preserve their rights, but the trial court issued a preliminary injunction, blocking release at least until the privacy claim was thoroughly explored. The newspapers 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 newspapers 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.

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Long Beach sued for records on liner Queen Mary

LONG BEACH (1/22/04) -- An activist has sued the city for release of financial records concerning the historic Queen Mary cruise liner as well as its nonprofit operator.

Long Beach community leader Traci Wilson Kleekamp claims city officials have unlawfully withheld hundreds of documents, including internal audits, income tax statements, and check registers that she has requested under the California Public Records Act during the past two years.

"This lawsuit questions the integrity of the city attorney, the city auditor and the city manager", said Wilson, who has retained attorney Patrick Manshardt to pursue her records request.

"Circumstances in this case suggest why the public's right to inspect public records should be strengthened," said Manshardt, of Los Angeles-based Southwestern Legal Foundation.

According to Wilson, her interest was peaked in 2002, when the city fired one its senior auditors, Earl Hobbs. Over the years, Hobbs had uncovered a number of questionable practices in city departments -- often at the displeasure of city managers and elected officials.

When Hobbs was put on leave and eventually terminated, Wilson's interest was piqued. "At first, I just wondered why Earl was put on leave, but then I heard that his house was ransacked by the police, they held a gun to his wife's head, confiscated his computer and all his files, fired him, and then denied him his pension."

Wilson believes her lawsuit will eventually exonerate Earl Hobbs. "If we can uncover what the City is trying to hide at the Queen Mary, then maybe we'll find out why the City tried to destroy Earl Hobbs' life."

On, January 5, the California State Lands Commission sent a terse letter to the office of the Long Beach City Attorney, to remind the city of its September 2001 and July 2003 requests for an accounting of it use of state Tidelands funds the city receives for its oversight of oil properties and production just offshore.

The Commission also requested details related to operation of the Queen Mary, which is docked in the Tidelands area and subject to State Lands Commission review.

The city has not responded.

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Paper wins access to internal probe documents

HAYWARD (1/20/04) -- A newspaper has successfully sued for access to documents from internal investigations into wrongdoing by two senior school administrators. 

The Daily Review in learned that two Hayward Unified School District employees had been placed on administrative leave after allegations surfaced that one had been seen shredding district records and the other taking them from district property following the ouster of then Superintendent Joan Kowal over allegations of financial mismanagement.  The employees were staunch supporters of Kowal.  

The district denied the Daily Review's California Public Records Act requests for access to documents pertaining to the investigations, on the basis of the employees' constitutional and statutory privacy rights. Initially, the District even refused to confirm whether the employees had been placed on administrative leave. 

The newspaper sued the district on November 5 and, the following day, sought a writ of mandate directing immediate disclosure of the documents or, in the alternative, an expedited hearing on the matter.  Alameda County Superior Court Judge Steven A. Brick granted an expedited hearing and also ordered the district to produce a log of responsive documents to The Daily Review.

While "privilege logs" are not required under the Public Records Act, once litigation begins a court can order a party withholding records claimed to be exempt to list them, to assist the court in its determination.  The log proved particularly helpful in this case, revealing the withholding of an extensive amount of documentation, including witness interviews, correspondence with the employees and a 70-page investigation report.

The employees intervened in the action and filed briefs in opposition to any public disclosure. 

After full briefing and oral argument and after conducting an in camera review of the responsive documents, Judge Brick issued an order granting access to nearly fifty separate documents, including the investigation report, witness interviews and numerous correspondence between the District and the employees. 

Citing the leading authority governing access to documents pertaining to investigations of public employee wrongdoing (American Federation of State, County and Municipal Employees v. Regents of University of California, 80 Cal. App. 3d 913, 918 (1978)), Judge Brick found that the documents pertained to allegations of a substantial nature and there was reasonable cause to believe the complaints were well founded. 

Thus, Judge Brick concluded that the privacy interests of the public employees in non-disclosure did not outweigh the rights of the public to review documents pertaining to such complaints.  The order also declared the newspaper the prevailing party entitled to recover reasonable attorneys' fees and costs from the district.

The Daily Review this weekend published stories about what it learned about the district's investigation of the two employees, Associate Superintendent Sunday-Joseph Otengho and Executive Director of Instructional Support Gloria Tejeda. The Daily Review was represented by media attorney Duffy Carolan of Davis Wright Tremaine LLP.  For further comment, she can be reached at duffycarolan@dwt.com.

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Sunshine Amendment now a choice for the people

SACRAMENTO (1/12/04) -- SCA 1, the CFAC-sponsored open government 'Sunshine Amendment' to the California Constitution, will go to the voters on the November ballot.   The measure, which got the required two-thirds Senate support last summer without a single No vote and likewise got unopposed committee support in the Assembly, passed the latter house on a vote of 76-0 today, placing it on the November ballot where it needs only a simple majority to become law on January 1, 2005.   "The Sunshine Amendment's passage is a big step for the people of California," said CFAC President Dick Rogers. "Come November, voters will have a chance to say clearly that they want government to operate in the sunshine. It has been too easy for meetings to be held in secret and for records to be filed away from public view. Now Californians have a chance to reverse the pattern."   The bill would amend Article I, Section 3 of the constitution, which now provides, "The people have the right to instruct their representatives, petition government for redress of grievances, and assemble freely to consult for the common good."   The language added by the Sunshine Amendment is:

(1) 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.
(2) A statute, court rule, or other authority, including those in effect on the effective date of this subdivision, shall be broadly construed if it furthers the people's right of access, and narrowly construed if it limits the right of access. A statute, court rule, or other authority adopted after the effective date of this subdivision that limits the right of access shall be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.
(3) Nothing in this subdivision supersedes or modifies the right of privacy guaranteed by Section 1 or affects the construction of any statute, court rule, or other authority to the extent that it protects that right to privacy, including any statutory procedures governing discovery or disclosure of information concerning the official performance or professional qualifications of a peace officer.
(4) Nothing in this subdivision supersedes or modifies any provision of this Constitution, including the guarantees that a person may not be deprived of life, liberty, or property without due process of law, or denied equal protection of the laws, as provided in Section 7.
(5) This subdivision does not repeal or nullify, expressly or by implication, any constitutional or statutory exception to the right of access to public records or meetings of public bodies that is in effect on the effective date of this subdivision, including, but not limited to, any statute protecting the confidentiality of law enforcement and prosecution records.
(6) Nothing in this subdivision repeals, nullifies, supersedes, or modifies protections for the records of the Legislature, the Members of the Legislature, and its employees, committees, and caucuses provided by Section 7 of Article IV, state law, or 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, the Members of the Legislature, and its employees, committees, and caucuses. SCA 1 is the result of two years of advocacy and negotiation by the California First Amendment Coalition and the California Newspaper Publishers Association. The first year was spent on an earlier, more detailed version -- SCA 7 -- that prompted strong opposition from local government lobbies and reservations from Attorney General Bill Lockyer. Its progress was slowed enough that it died in the Assembly.   SCA 1, introduced a year ago, overcame opposition and won the support of the League of California Cities and Lockyer's office, by making significant concessions to limitations of and exemptions from public access to meetings and records found in current law and, for the Legislature, future law. In particular:

• constitutional privacy and statutes reflecting that right, as well as dues process and equal protection rights, are not to be "superseded or modified";
• to the extent that statutory procedures to keep peace officer qualification and performance records confidential reflect the constitutional privacy right, those procedures would likewise not be superseded or modified;
• other statutes allowing closed sessions and withholding of government records would not be "repealed or nullified"; and
• with respect to the Legislature itself, not only existing but future limits on access to meetings and records found in the constitution, statutes and house rules would not be repealed, nullified, superseded or modified.

The documents pertained to the murder trial of Stuart Alexander, accused of shooting to death three federal meat inspectors at his San Leandro sausage factory in June of 2000. Jury selection in the matter is scheduled to being on January 19.

The access matter began in July of 2003 when a reporter for The Oakland Tribune, was ousted from the criminal trial while the prosecution introduced a CD recording of a jailhouse conversation between Alexander and his mother and her husband in opposition to a defense motion for the jury to view the scene. 

The CD disk, which also included another jailhouse call, a transcript of the call played in court and oral argument about the call, were sealed by the trial court.  The trial court also gagged those present in the courtroom from speaking about the closed proceedings and sealed court records. 

Alexander's defense counsel claimed that the disk contained inadmissible and prejudicial information not relevant to the motion that, if disclosed, would substantially impair his ability to have a fair trial in Alameda County.  Defendant also claimed that disclosure would violate the privacy rights of his mother. 

The newspaper's immediate efforts in the trial court to unseal the records, open the proceedings and lift the gag order were unsuccessful.  It also lost an emergency writ petition to the First District Court of Appeal, on the theory that another adequate remedy at law existed by way of a written motion before the trial court to unseal the records under the California Rules of Court.

Taking this cue, the newspaper went back to the trial court with a formal motion; after full briefing and oral argument, the judge reversed in their entirety the previously entered sealing and gag orders, but stayed those orders pending further review by the appellate courts. 

In ruling in favor of the public's and press' constitutional right of access, the trial court recognized the heavy burden on defendant, especially during the pre-jury selection stage of a proceeding, to show that publicity from disclosure of the records would make it difficult to find twelve unbiased jurors in a county as large as Alameda. 

Defendant's efforts to overturn the unsealing order were summarily denied by the Court of Appeal and on December 17, 2003, the California Supreme Court unanimously decided to let stand the trial court's decision.   

Today, despite renewed defense claims that the trial court'ts stay should remain in effect until the jury venire panel is before the court and admonished not to read news accounts of the proceedings, the court lifted the stay, allowing immediate public access to the court records. 

That access included not only the recording of the call introduced in connection with defendant's motion but also another call that became part of the court's records when it was submitted on the same disk as the call introduced by the prosecution.  

In 2000, the Tribune's parent company, Alameda Newspaper Group (ANG) successfully sought to unseal the grand jury transcripts in the same case, including a surveillance video from the defendant's sausage factory showing him shooting the meat inspectors and finishing each off with a bullet to the head.

ANG was represented by media attorney Duffy Carolan of the San Francisco office of Davis Wright Tremaine LLP.

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Feinstein, Boxer disclose votes on Iraq appropriation

WASHINGTON, D.C. (1/5/04) -- Sen. Dianne Feinstein voted for the Bush Administration's supplemental funding for Iraq; Sen. Barbara Boxer voted against.

Last fall the Society of Professional Journalists, at the urging of the California First Amendment Coalition, demanded that all U.S. Senators disclose their position in an unrecorded "voice" vote to approve $87 billion for military operations and reconstruction in Iraq.

In his November 13 letter to Vice President Dick Cheney -- addressed in his capacity as president of the Senate -- SPJ President Gordon McKerral condemned the unrecorded 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 concluded:

"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.

The resulting tabulation on SPJ's Web site shows most Senators making the disclosure, with a handful including Sen. Hillary Clinton expressly refusing.

Boxer is recorded as voting against; Feinstein has notified CFAC's McKee by letter that she voted for the funding. Neither she nor Boxer took up McKee's challenge to back a change in the rules that would ban unrecorded votes in the future.

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