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Introduced by: Senator John Burton (D-San Francisco Senator Bruce McPherson (R-Santa Cruz) Assembly co-authors: Fred Keeley (D-Monterey) Christine Kehoe (D-San Diego) Bill Leonard (R-San Bernardino) Lou Papan (D-San Mateo) Kevin Shelley (D-San Francisco) California First Amendment Coalition (CFAC) California Newspaper Publishers Association SCA 1 must pass both houses of the legislature, by at least a two-thirds margin in each house, by June 27 in order to place the constitutional amendment (in italics above) as a proposition on the ballot for the November 5 statewide election. Once on the ballot, if majority of voters approve the proposition, Section 3, Article 1 of the state constitution will be amended accordingly. |
SCA 1 must pass both houses of the legislature, by at least a two-thirds margin in each house, by June 27 in order to place the constitutional amendment (in italics above) as a proposition on the ballot for the November 5 statewide election. Once on the ballot, if majority of voters approve the proposition, Section 3, Article 1 of the state constitution will be amended accordingly. |
SCA 1 set for first Assembly
hearing Wednesday, July 16 League of Women Voters of California American Federation of State, County and Municipal Employees San Diego Democratic Central Committee San Francisco Board of Supervisors Radio-Television News Directors Association of Northern California California Chicano News Media Association Society of Professional Journalist of Los Angeles Society of Professional Journalist of Northern California |
Aren't there laws that provide those rights already? What is the most significant change if the Legislature and voters approve SCA 1? How have court decisions weakened the laws we have now? Why can't these goals be accomplished by simple legislation? Would the legislature have to get rid of the laws now on the books? Will SCA 1 cost money to implement? Are voters likely to approve the Constitutional Sunshine Amendment? |
Q: What is SCA 1?
A: SCA 1 is legislation that would place a Constitutional Amendment on the ballot to allow voters to strengthen the public's right of access to government deliberations and records. SCA 1 would have to pass both the Senate and Assembly by a two-thirds majority before being placed on the ballot. A majority of voters would then have to approve the addition to the state constitution.
Q: How would SCA 1 work?
A: First, it would firmly establish a fundamental right for people to scrutinize what their government is doing and contribute their ideas to the process of policy-making. The exact language is:
Access to information concerning the conduct of the people's business is a fundamental and necessary right of every person in this state. Public agencies and officers exist to aid in the conduct of the people's business, and their actions and deliberations should be open to public scrutiny. Therefore, except as provided pursuant to this constitution, the people have a right to attend, observe, and be heard in the meetings of elected and appointed public bodies, and to inspect and copy records made or received in connection with the official business of any public body, agency, officer, or employee, or anyone acting on their behalf.
Second, it would establish an equally firm commitment to privacy for individuals, maintaining confidentiality for facts held by government about one's personal life, unless the person is seeking or holding a position of public trust. The language is:
Privacy also being a fundamental right of the citizens of this state, nothing in this section shall be construed to limit the ability of the legislature to provide for the protection of information about private individuals submitted to or obtained by any public body, agency, officer, or employee, or anyone acting on their behalf, except to the extent the information relates to the qualifications or fitness of a person for any elective or appointive office in the government.
Third, SCA 1 would allow the legislature to create certain logical exceptions, but only to protect important public and private interests such as those widely recognized in current law. The language is:
The legislature may enact other limitations on the right of public access to governmental information only as necessary to protect public safety or private property, to ensure the fair and effective administration of justice, or to provide for the preservation of public funds and resources.
Finally, SCA 1 requires a government agency to state a clear and understandable reason why secrecy is necessary under the Constitutional Sunshine Amendment's exceptions. Current law has been interpreted to allow a government agency to simply state what exemption it is claiming without any explanation. Also, under the Constitutional Sunshine Amendment the government could not overdo the secrecy by having it cover more ground or last longer than was necessary. The language is:
Any application of such limiting statutes by any public body, agency, officer, or employee, or anyone acting on their behalf, to deny rights specified in paragraph (1), shall be based on particularized findings demonstrating a substantial probability of serious harm to the public interest that the denial will avert, and that such harm cannot otherwise be averted by reasonable alternatives, and shall be no broader in scope or longer in duration than necessary to avert the identified harm.
Q: What is SCA 1 all about?
A: It's about the right of Californians to define how open their government should be, to know what their government is doing, to find out information held in government records, and the ability to attend and express their views at meetings of government bodies. SCA 1 defines government business as the people's business and strengthens the people's right to know about their government by making it a constitutional right rather than a legislated right.
Q: Aren't there laws that provide those rights already?
A: Existing laws have not stopped widespread secrecy in government. For example, even a state senator using the Public Records Act was unable to obtain Department of Insurance records documenting how Insurance Commissioner Chuck Quackenbush was regulating insurance companies after the devastating Loma Prieta earthquake. Quackenbush was forced to resign, but it was a "leak," not the Public Records Act, that produced the evidence. A legislative task force noted this and other Public Records Act failures in a 1998 report, "KEEP OUT: The Failure of the California Public Records Act," concluding that that law had been "interpreted, reinterpreted and fiddled with to the point that it has become of little appreciable value to the public."
As for local public meetings, reports from CFAC members during a recent three-month period indicate that local government bodies have used closed sessions to direct staff not to provide information to one of their elected members; to review multiple developers' proposals; to hear a police chief's report on the backgrounds of critics of his department; to discuss litigation when their attorney was absent; and to discuss and demand one of their members' resignation--all clear violations of open meeting law. During that same period of time, several local bodies also violated the law by taking action on matters not listed on the agenda or listed only as "discussion" items; meeting individually with the body's attorney to discuss "procedure" for passing a controversial resolution; and refusing to allow public comment on the topic of a "study session."
The Constitutional Sunshine Amendment would establish access to government by citizens as a fundamental right with some specific logical exceptions.
Q: What is the most significant change if the Legislature and voters approve SCA 1?
A: The Constitutional Sunshine Amendment would strengthen the public's right to access to government meetings and records as a clearly established constitutional provision. Thus all state laws and administrative regulations would be required to conform with the provisions of the amendment. Also, the Constitutional Sunshine Amendment requires government agencies to publicly explain and justify any exception to open government that the agency intends to claim. As Sen. Burton has said, "I think the burden should be on the agencies to explain why they keep this stuff secret.''
Q: How have court decisions weakened the laws we have now?
A: For example, the California Supreme Court has added to the California Public Records Act an exception that allows government decision-makers to withhold documents that would show how their decisions were reached, who influenced them or what their thinking was during their deliberative process. This exception, for example, has prevented the public from getting any information about the identity or qualifications of people the Governor is considering for appointment to important offices, such as vacated seats on county boards of supervisors.
The Supreme Court also ruled not long ago that under existing state law a court did not have the authority to declare that a meeting had violated the open meeting law, but only to stop future violations. This decision weakens a citizen's ability to reverse decisions made during illegal meetings. In an earlier case the court concluded that even when no harm can be associated with the release of police records in closed investigations, police departments could keep their files closed permanently if they wish. This rule is in stark contrast to federal law, which requires the FBI and other federal law enforcement agencies to open files of closed cases when doing so would cause no harm. Recently the court extended this secrecy to the records of simple traffic stops.
Meanwhile, lower state courts have set precedents by interpreting existing laws to allow secrecy for phone records showing who might be influencing city council members, or for any documentation of what attorneys do on behalf of public agencies that employ them-not just communications between the agency and its attorney, but any communications by the attorney with other parties such as private contractors. One lower court even ruled that members of a city council who made a decision in closed session contrary to the Brown Act cannot be compelled to answer questions about that closed session. This makes it next to impossible to prove that a violation occurred, since the only witnesses can't be examined. We believe a Constitutional Sunshine Ordinance would set a new framework for public access to government meetings and records that would make it harder to keep things secret for arbitrary or inadequate reasons.
Q: Isn't it asking a lot to make officials justify closing meetings and keeping secrets on a case-by-case basis?
A: The Constitutional Sunshine Amendment requires government agencies to follow essentially the same rules any California judge is required to use in justifying the closing of a court hearing or sealing of a court record. As a matter of constitutional law, common law or both, judges must keep secrecy to a minimum and must spell out their reasons for excluding public access, based on the dictates of the situation they are facing. They can't just label a hearing or a court file off limits, or make some vague statement that it would be better if the public were kept away.
Q: Why can't these goals be accomplished by simple legislation?
A: Existing laws have not stopped widespread secrecy in government. And they have been weakened over the years by administrative interpretations, subsequent legislation and some court decisions. A constitutional amendment would establish access to government by citizens as a fundamental and absolute right with some specific logical exceptions. Legislation can only go so far in controlling how government officials respond to particular situations. A public body or official can now cite a statutory exemption from openness without providing a justification that shows what is being protected, or why the exception is not being stretched beyond its intent.
The public is often left with a great deal of mystery about what's going on, and legislation can only go so far in micro-regulating that problem. Furthermore, even when legislation has passed unanimously in both the Assembly and Senate, it doesn't necessarily become law. For example, twice in recent years the Legislature passed, with heavy bipartisan approval, bills that would have allowed the Attorney General to review denials of access to public records and issue a simple, prompt and non-binding opinion on whether the denial was justified. The bills would also have allowed a court to fine a public agency that was found to have denied access to public information in bad faith, for example by lying or refusing to respond to requests. Both bills were vetoed.
Q: Would the legislature have to get rid of the laws now on the books?
A: No. The Legislature could amend or repeal laws to conform more closely to SCA 1, or it could simply wait for any challenges to existing laws and let the courts decide how they fare in light of the Constitutional Sunshine Amendment.
Q: Will SCA 1 cost money to implement?
A: No, legislative appropriation is required to implement SCA 1. To the extent that government agencies are already following the spirit of existing open government laws, there would be no additional cost to government. It is hoped that a Constitutional Sunshine Amendment would foster more citizen participation in their government, and thus more public records might need to be produced at citizens' requests. However, the law allows government to recover the costs of record duplication from those who request the records.
Q: Are voters likely to approve the Constitutional Sunshine Amendment?
A: In 1998, CFAC commissioned a professional poll of voter opinions regarding open government and asking about support for a constitutional amendment to "guarantee access to information generated or kept by all branches of state and local government." Sixty-seven percent of voters polled indicated they would definitely or probably vote yes on such a measure. The poll had a 3.5 percent margin of error.
Q: Have other states enacted such amendments?
A: Several other states, including Florida, Louisiana, Montana and New Hampshire, have constitutional provisions guaranteeing public access to the government.
Q: If a public agency violated provisions of SCA 1, would the responsible officials have to pay a fine or face criminal charges?
A: No.
Q: How would the constitutional rights be enforced?
A: Any person or organization could file a lawsuit to have a law or rule declared unconstitutional and struck down as void on its face. Citizens could also file a lawsuit to challenge an agency's use of an otherwise legitimate exception to the law because there was either no explanation given or because an explanation was given that was not supported by facts or was at odds with the facts. The Constitutional Sunshine Amendment requires officials to explain why withholding a record or closing a meeting from public access is appropriate, necessary, and not excessive. The challenge to an agency's failure to meet constitutional requirements might lead to a court-enforceable order directing officials to comply with the law from then on.