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View Flash: First Amendment and Open Government News Archive
FLASH:
First Amendment and Open Government News
Vol. 18, No. 5, May 9 , 2008
COMMENTARY
Vallejo's bankruptcy highlights need for transperancy in city-union contracts
By Peter Scheer
The city of Vallejo has taken the extraordinary step of filing for federal bankruptcy protection. While the financial distress of this San Francisco suburb (population 117,000) is especially acute, its fiscal problems are fundamentally the same as those facing many California cities and counties--and, indeed, the state itself.
To the familiar litany of causes--falling sales tax revenue, the home mortgage crisis leading to collapsing home prices and lower real estate taxes--there needs to be added one more: Too much government secrecy.
Vallejo is broke, and other cities and counties may be close behind, because their personnel costs--salary and benefits for current employees and retirees--are higher than they can afford. While decisions at the state level are partly to blame, ultimate responsibility for the mismatch of revenue and expenses rests with local elected officials who, meeting in secret, have managed to avoid public discussion of the true cost and fiscal impact of the pay deals that they have approved.
[Read More]
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Directory:
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CFAC NEWS
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Legislation Update
By Kelly Dunleavy
AB 1978
AB 1978, a Bill that would have closed public access to ‘basemap’ data for Geographic Information Systems (GIS), put forth by Assemblymember Jose Solorio, was dropped after opposition from the GIS/GeoData and freedom of information communities.
GIS “basemap” data is used to create the base layer for all local computer mapping. The bill sought to exempt from the Public Records Act, which requires all government data to be available to the public, “metadata, listings of metadata and assembled model data”.
CFAC has filed suit to force Santa Clara County to make available its county basemap as a public record, subject only to payment of modest copying fees. CFAC won in Superior Court and the case is now on appeal. AB 1978 would have effectively overturned that pro-disclosure ruling.
[Read More]
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The Right to Know: A Guide to Public Access and Media Law is our new, comprehensive, one-stop law guide on access and First Amendment issues for journalists, bloggers, lawyers, citizens groups, activists, public officials, and voters.
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The Right to Know replaces CFAC's previous "Journalist's Legal Notebook" and CNPA's "Reporter's Handbook." The Right to Know is the best of both books . . . the best of all books.
The Right to Know is written by CFAC Board President James Chadwick (partner at Sheppard Mullin Richter & Hampton) and by CFAC General Counsel Roger R. Myers (partner at Holme, Roberts & Owen). Editors include Tom Newton, General Counsel of CNPA, and Peter Scheer, Executive Director of CFAC.
Purchasers of The Right to Know also receive:
--access online to the full text of all court decisions cited in the book
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CFAC in the News:
View the most recent news articles about CFAC (courtesy of Google).
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STATE AND LOCAL FIRST AMENDMENT AND OPEN GOVERNMENT NEWS
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San Francisco Chronicle
Court says feds don’t have to reveal names
The federal government doesn't have to reveal the names of employees involved in a bungled operation to a private watchdog group that doesn't trust official investigations of the incident, a federal appeals court ruled.The employees' right to be free of harassment from the news media and the public outweighs any benefit in re-examining an incident that officials have already gone over, said the Ninth U.S. Circuit Court of Appeals in San Francisco.
San Bernardino Sun
Letters detail data request
In response to a public records request by The Sun, San Bernardino County spent nearly $3,000 this month to send certified letters to the 530 property owners whose homes were damaged or destroyed in the October fires notifying them of the request. The letters were sent after The Sun asked for a list of people indicating who had enrolled and who had refused to enroll in the county's debris-removal program, which was implemented to clean up the remains of houses destroyed in the San Bernardino Mountains
Los Angeles Times
Irvine is sued over private sessions to reach agreement with developer
An Irvine planning commissioner and a retired police officer sued the city this week, challenging a closed-door "settlement agreement" with a high-rise developer as questions have arisen about the builder's support of City Council members who approved it.The Irvine City Council in January approved the agreement to resolve a dispute with Maguire Properties, a Los Angeles real estate developer known for the 72-story US Bank Tower downtown. Two of the five council members walked out because they were concerned that the meeting, held in private, was illegal.
Fresno Bee
Fresno County weighs cost-savings plans
Fresno County supervisors took the first steps toward reducing a projected $10 million shortfall in next year's budget, saying employees may have to pay more for health benefits -- and some may lose their jobs. The supervisors have already clamped down on hiring. They set in motion more cost-saving plans that include consolidating some county departments, reducing the number of county cars and capping their contributions for health insurance, which could lead to higher premiums for employees.
North Coast Journal
First to Contact, First to Contract
Dave Meserve started thinking about the influence military recruiters exert on young people in the community a couple of years ago. He was sitting in a coffee shop one morning when a recruiter walked in with three high school-aged girls. "He bought them sweet coffee drinks," the former Arcata City Councilmember recalled in an interview last week. Then the National Guard recruiter began "painting a very rosy picture" of military service. He even assured the girls, Meserve says, that "there would be almost zero chance that they would be called to serve in Iraq."
Contra Costa Times
Richmond Council Members to Have Say on Public Comments
Richmond City Council members now can respond to "erroneous" charges leveled against them by speakers during public meetings, a new policy that some say detracts from the spirit of open forum. Under the policy adopted, council members are permitted to make a statement of up to 1 minute after all public speakers are finished. "We should be able to respond to clear the air," Councilman John Marquez said.
North County Times
Horn’s accessibility drawing fresh complaints
Among some of his constituents, San Diego County Supervisor Bill Horn has developed a reputation over the years for being unreachable and inaccessible. Members of two planning commissions and a neighborhood group are renewing the grievance, saying they have been routinely snubbed by Horn, whose district includes much of North County. It's a complaint that has echoed for years. Horn says he is busy and can't meet with everyone in his district and that members of his staff are available to meet with constituents.
San Francisco Chronicle
Oakland school board names interim president – in secret
The Oakland school board wasted no time flexing its renewed political muscle, secretly and perhaps improperly naming an interim superintendent one day after the state restored the board's authority over district personnel. The school trustees voted 4-3 during closed session to hire an interim superintendent and offer the job to state fiscal analyst Roberta Mayor. Teachers, parents, and others interested in school affairs had no idea the idea was up for a vote.
The Vacaville Reporter
‘Bark’ advisor fights losing Vaca High post
A decision by the principal at Vacaville High School to change the adviser of the student-run newspaper is leaving one teacher fighting for his job. Teacher Rodney Orosco was informed by Principal Kari Fisher Gibson that he would no longer be advising the newspaper staff at the school and that another teacher would fill that position beginning next year. Although Orosco will continue to teach English as he has done since he was hired at the high school three years ago, he is fighting for the newspaper adviser position.
Electronic Frontier Foundation
Defending Anonymity Online
The California Assembly took a crucial first step yesterday towards closing a significant gap in protection for anonymous speech online. One of the most pernicious threats to anonymity is the filing of bogus lawsuits as an excuse to force ISPs to reveal speakers’ identities. Once such a lawsuit is filed, speakers who want to protect their anonymity must find a way to pay a lawyer to go to court and prevent disclosure of their personal information. That can be a real hardship—in fact, even the threat of having to go to court may intimidate many people from speaking out in the first place.
Inside Bay Area
Whistleblower shield bill gets Assembly panel OK
A local government whistleblower protection bill authored by Oakland City Auditor Courtney Ruby and sponsored by Assemblyman Sandre Swanson, D-Oakland, cleared a key Assembly committee this week with unanimous support. The Assembly Local Government Committee voted 7-0 to support the bill after Ruby and city auditors from Berkeley and Long Beach testified before the committee. Ruby was heartened by the support.
Los Angeles Times
Teacher fired for refusing to sign loyalty oath
When Wendy Gonaver was offered a job teaching American studies at Cal State Fullerton this academic year, she was pleased to be headed back to the classroom to talk about one of her favorite themes: protecting constitutional freedoms. But the day before class was scheduled to begin, her appointment as a lecturer abruptly ended over just the kind of issue that might have figured in her course. She lost the job because she did not sign a loyalty oath swearing to "defend" the U.S. and California constitutions "against all enemies, foreign and domestic."
North County Times
City officials get first look at budget proposal
In the first of a series of budget workshops, City Council members last week had their first look at next year's proposed spending plan and said money could be tight, but that major cuts weren't expected. At the same meeting, a taxpayer advocate complained that the city was withholding public information he had requested that outlined how the city might pay for retiree health care costs.
Los Angeles Times
Carona’s request to file secret motion violates First Amendment protection, media attorney says
Former Orange County Sheriff Michael S. Carona's request to file a secret motion to move his corruption trial out of Southern California violates the 1st Amendment's free-press protection, a media attorney argued. Carona's attorneys have asked U.S. District Judge Andrew J. Guilford to keep their motion to move the trial sealed because releasing it would create additional inflammatory publicity about the case. The motion reportedly contends that Carona cannot receive a fair trial in Southern California because of a daily radio segment called "Taint the Jury," in which the hosts of KFI's "John and Ken Show" urge listeners to convict Carona -- if they end up on his jury. The hosts have instructed listeners to deny in court that they listen to the show.
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NATIONAL FIRST AMENDMENT AND OPEN GOVERNMENT NEWS
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Associated Press
Cell Phone Records at Issue at OSU
Nearly 500 Oklahoma State University employees receive extra compensation to cover the cost of private cell phones that can be used for university business without generating records accessible to the public, according to a published report. The university says that since these telephones are considered private, the public has no right to examine text messages, e-mails and numbers dialed on these devices, The Daily O'Collegian reported
New York Times
Why Barstow Worked So Long on ‘Pentagon’s Hidden Hand’
An article by David Barstow on Sunday reported that the Pentagon has cultivated “military analysts” in a campaign to generate favorable news coverage of the Bush administration’s wartime performance. Since publication of the article, The Times has received more than 1,400 comments. Mr. Barstow is responding to readers’ questions on the article.
MiniMedia Guy
Senators: don’t use shield law to stab bloggers
The Justice Department is lobbying the U.S. Senate to amend a proposed reporters’ shield law to exclude bloggers from the limited protections that it would give paid reporters against the forced disclosure of confidential sources. The House passed a national shield law last fall in reaction to the recent spate of subpoenas issued by federal prosecutors to reporters like Judith Miller. That bill (search for H.R. 2102 EH) treated bloggers and paid media the same. The Senate version (search for S. 2035) uses different words to accomplish the same goal of treating citizen journalists just like the professional journalists.
Politico
White House pushes senators on shield law
The Democratic chairman of the Senate Judiciary Committee says Republicans who claim to support a law that would protect reporters from having to reveal confidential sources are assuring the White House that they’ll oppose it if it comes to the Senate floor. The House approved a federal shield law by a vote of 398-21 in the fall, and the Senate Judiciary Committee has approved a version of it by a vote of 15-4. Sens. John McCain (R-Ariz.), Hillary Rodham Clinton (D-N.Y.) and Barack Obama (D-Ill.) have all spoken out in favor of the bill, but the White House objects, arguing that passage would threaten national security by putting classified information at risk.
Forbes
Bush’s Cyber Secrets Dilemma
There's a problem facing the Bush administration: It has $30 billion to spend over the next five to seven years to keep the U.S. safe from hackers and cyberspies. But to extend that protection to the nation's critical infrastructure--including banks, telecommunications and transportation--it needs the cooperation of the private sector. And among corporate executives, even those who want to help are wary: How can the business world participate in the government's cyber initiative, they ask, if the government remains intensely secretive? .
Washington Post
Senate panel advances state secrets bill
A Senate panel advanced a bill Thursday that would limit how and when a president can withhold evidence from courts considering lawsuits against some of his most controversial policies. By 11-8, the Senate Judiciary Committee approved the bill limiting the so-called "state secrets privilege," a frequent legal defense President Bush uses to withhold evidence from plaintiffs in suits challenging his anti-terrorism methods.
New York Times
Few Details on Immigrants Who Died in Custody
Word spread quickly inside the windowless walls of the Elizabeth Detention Center, an immigration jail in New Jersey: A detainee had fallen, injured his head and become incoherent. Guards had put him in solitary confinement, and late that night, an ambulance had taken him away more dead than alive. But outside, for five days, no official notified the family of the detainee, Boubacar Bah, a 52-year-old tailor from Guinea who had overstayed a tourist visa. When frantic relatives located him at University Hospital in Newark on Feb. 5, 2007, he was in a coma after emergency surgery for a skull fracture and multiple brain hemorrhages. He died there four months later without ever waking up, leaving family members on two continents trying to find out why.
Washington Post
Scientists Report Political Interference
More than half the Environmental Protection Agency scientists who responded to an independent survey made public yesterday said that they had witnessed political interference in scientific decisions at the agency during the past five years. The claim comes from a new report by the Union of Concerned Scientists, a nonprofit advocacy group that sent questionnaires to 5,500 EPA scientists and obtained 1,586 responses. Among the scientists' complaints were that data sometimes were used selectively to justify a specific regulatory outcome and that political appointees had directed them to inappropriately exclude or alter technical information in EPA scientific documents.
Law.com
N.Y Judge Files $10 Million Defamation Suit Against Attorney, Newspaper
A Brooklyn judge has filed an unusual $10 million defamation suit against attorney Ravi Batra and the New York Daily News. The suit, Martin v. Daily News, filed earlier this year in Manhattan Supreme Court by Justice Larry D. Martin, alleges that Batra was the source of two Daily News columns and related blog postings falsely accusing the judge of improperly presiding over a case involving a lawyer who had defended him before the New York State Commission on Judicial Conduct. Martin maintains that Batra "requested and urged" Daily News columnist Errol Louis to publish "defamatory statements" about him. He claims the articles were "outrageous, grossly irresponsible, malicious and evinced a complete and utter indifference" to his "rights and reputation."
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CFAC
HOTLINE Asked & Answered
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The
Hotline is CFAC's online legal information service. Questions from reporters,
government officials, civic activists and the occasional crackpot are answered
by media law specialists Roger Myers and Rachel Matteo-Boehm at the San Francisco
Office of Denver Law Firms, Holme Roberts & Owen, LLP.Have
a legal issue? Submit
your question here.
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Email Records
Q: The city has an email policy that states that email is transitory in nature and as such not backed up. Neither the email system, it’s logs, nor the data itself is backed up. In addition all email older than 90 days is deleted. Can email as a delivery method or means of riting be considered transitory? Or does the content, context or subject matter determine if the message itself should be considered a permanent, semi-permanent, or transitory document?
A: Neither the Brown Act nor the Public Records Act addresses a local agency's obligation to retain records. See 64 Op. Atty. Gen. Cal. 317 (1981) ("Nothing in the Public Records Act purports to govern destruction of records ... Its sole function is to provide for disclosure."). Moreover, it is not always clear what destruction of records is permissible under other provisions of California law.
However, with respect to city governments, Government Code section 34090 (not the Brown Act) requires that the city retain any record (which would include email) that is less than two years old. (Gov't Code section 34090). I have reproduced below some relevant records retention provisions.
Section 34090 of the Government Code provides for the lawful destruction of city records in certain circumstances:
Unless otherwise provided by law, with the approval of the legislative body by resolution and the written consent of the city attorney, the head of a city department may destroy any city record, document, instrument, book or paper, under his charge, without making a copy thereof, after the same is no longer required. This section does not authorize the destruction of:
(a) Records affecting the title to real property or liens thereon.
(b) Court records.
(c) Records required to be kept by statute.
(d) Records less than two years old.
(e) The minutes, ordinances, or resolutions of the legislative body or of a city board or commission.
Section 34090.5 further provides that:
Notwithstanding the provisions of Section 34090, the city officer having custody of public records, documents, instruments, books, and papers, may, without the approval of the legislative body or the written consent of the city attorney, cause to be destroyed any or all of the records, documents, instruments, books, and papers, if all of the following conditions are complied with:
(a) The record, paper, or document is photographed, microphotographed, reproduced by electronically recorded video images on magnetic surfaces, recorded in the electronic data processing system, recorded on optical disk, reproduced on film or any other medium that is a trusted system and that does not permit additions, deletions, or changes to the original document, or reproduced on film, optical disk, or any other medium in compliance with Section 12168.7 for recording of permanent records or nonpermanent records.
(b) The device used to reproduce the record, paper, or document on film, optical disk, or any other medium is one which accurately and legibly reproduces the original thereof in all details and that does not permit additions, deletions, or changes to the original document images.
(c) The photographs, microphotographs, or other reproductions on film, optical disk, or any other medium are made as accessible for public reference as the original records were.
(d) A true copy of archival quality of the film, optical disk, or any other medium reproductions shall be kept in a safe and separate place for security purposes.
However, no page of any record, paper, or document shall be destroyed if any page cannot be reproduced on film with full legibility. Every unreproducible page shall be permanently preserved in a manner that will afford easy reference. For the purposes of this section, every reproduction shall be deemed to be an original record and a transcript, exemplification, or certified copy of any reproduction shall be deemed to be a transcript, exemplification, or certified copy, as the case may be, of the original.
Finally, Government Code Section 6200 provides that:
Every officer having the custody of any record, map, or book, or of any paper or proceeding of any court, filed or deposited in any public office, or placed in his or her hands for any purpose, is punishable by imprisonment in the state prison for two, three, or four years if, as to the whole or any part of the record, map, book, paper, or proceeding, the officer willfully does or permits any other person to do any of the following:
(a) Steal, remove, or secrete.
(b) Destroy, mutilate, or deface.
(c) Alter or falsify.
Electronic Copies of Records
Q: I made a public information request to the County Office of Education requesting two e-lists of theirs be sent to me electronically. They refused to send them electronically, saying they were concerned about SPAM. They will only provide me with the information on a peice of paper.
Do they have a legal right to refuse to send this information electonically through e-mail?
A: The California Records Act ("PRA") contains fairly recent provisions addressing information maintained by state and local agencies in electronic format. Section 6253.9(a) if the PRA provides:
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. The cost of duplication shall be limited to the direct cost of producing a copy of a record in an electronic format. (See below for Section 6253.9 in its entirety.)
(emphasis added). It may be that the Sonoma County Office of Education is unaware of this fairly recent provision. The legislature enacted this provision in 2000 to address the increasingly widespread use of government documents that are produced in an electronic format. I suggest you contact the Department again to submit another PRA written request for the records you seek and state that, under section 6253.9 of the PRA, you are entitled to those records in the format they are kept by the City. A sample PRA request letter can be found on the CFAC web site at the following link: http://www.cfac.org/templates/cpraletter.html.
Please note, however, that under subsection (2) of section 6253.9(a), the agency may refuse to provide you with a copy in the format you request, if that format is not "one that has been used by the agency to create copies for its own use or for provision to other agencies." Although the language of section 6253.9 appears to require that the records be made available for inspection in the format they are kept by the agency, it does not appear to require the agency to provide you with a copy in the format requested unless such format "has been used by the agency to create copies for its own use or for provision to other agencies." As you have already experienced, some agencies have resisted providing records in electronic formats. Unfortunately, because this provision has only been in place for a few years, there is very little or no authority interpreting it.
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ASKED
AND ANSWERED
Do
you find these questions and answers helpful? If so, you
should also consult "Asked
and Answered" on CFAC's Web site,
a compilation of past
Hotline questions and answers.
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ABOUT
US
The California First Amendment Coalition is a non-profit public
interest organization dedicated to enhancing rights to freedom
of speech and open government through information and
educational services, strategic litigation, and lobbying.
Our offices are at: 534
Fourth Street, Suite B, San Rafael, CA.
Phone:
415.460.5060, Fax: 415.460.5155,
Email: cfac@cfac.org
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