03/11/07

Sunshine Week 2007

AP Enterprise: California weak on access to government

By AARON C. DAVIS
Associated Press Writer

SACRAMENTO (AP) -- Cities from San Francisco to Los Angeles this year have locked reporters out of police disciplinary hearings, citing a court ruling limiting access to government records.

The result: Californians might not always know if beatings or shootings by officers are ruled justified or whether those officers are disciplined or labeled as bad cops.

In another open-records case, California Supreme Court justices are questioning whether the public has the right to know the salaries of government employees -- even though they're paid with taxpayer money.

And Gov. Arnold Schwarzenegger last year vetoed a plan to give citizens more power to appeal when politicians' refuse to release public records.

For a state with a progressive reputation, California's record on open government has left it far behind many other states. In Connecticut, Iowa, Kentucky, Rhode Island and Nebraska, for example, attorneys general investigate and even prosecute public officials who fail to disclose public records.

In a nationwide survey The Associated Press conducted to coincide with Sunshine Week -- an effort to draw attention to the public's right to know -- California ranked near the bottom of states that actively enforce open government, or so-called sunshine laws.

Political analysts and government watchdogs say there is irony in California's spot on the list: Some of the social and financial forces that have built the state -- Hollywood, Silicon Valley and union interests -- have undercut California in the open-records arena.

"The entertainment industry and, equally, the high-tech industry have a lot of powerful people who have been sensitized to privacy issues because they understand -- perhaps better than the rest of us -- the powers of technology and media," said Peter Scheer, executive director of the California First Amendment Coalition.

"Public employees' unions, too. They oppose access to information about their members and do what unions are supposed to do. But ... in California all these groups tend to be better organized, better funded and more successful." he said. "Sometimes that comes at the expense of (open) government."

California, in fact, has retreated by some public-access measures since voters in 2004 endorsed a constitutional amendment to protect the public's right to view government documents and attend meetings.

Passage of the amendment was billed as a watershed for public access in California. Advocates said it would limit lawmakers' ability to write loopholes into law and require officials and even state judges to narrowly interpret laws that restrict the public's access to government's inner workings.

Schwarzenegger embraced the amendment by taking the unprecedented step of releasing his appointment calendars. Beyond that, many First Amendment lawyers say the measure has so far done little to make government more transparent.

Government watchdogs blame -- in varying degrees -- the weak enforcement provisions in the state's underlying open meetings and open records laws.

"No law is going to be any more respected than its enforcement provisions make it," said Terry Francke, general counsel for the public records access advocacy group, Californians Aware.

The group has sponsored three unsuccessful bills to increase enforcement of open government violations, including the one Schwarzenegger vetoed.

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By law, government officials in California should face misdemeanor charges for subverting the state's open meeting laws if they deliberately vote on matters without adequate public notice.

In reality, however, open government experts say there have been only a handful of investigations into such activity in the last 25 years, and not one recorded criminal prosecution of an elected official for violating the state's open meetings law.

When it comes to enforcing the California Public Records Act, the law has even less power.

If local or state agencies deny a request for documents, a citizen's only recourse is to sue. The only hammer -- assuming the plaintiff wins -- is to ask a judge to order the government to pay legal fees.

The result of those weak penalties, Francke says, is a government culture that's skewed to not release information.

"Your boss isn't going to come after you for erring on the side of secrecy; it's the other way around," Francke said. "There are many situations you run into where the agency is sure you are not going to sue and so is indifferent to your request."

Critics say that kind of anti-open government bent in California also has emboldened lawmakers to pass tailor-made laws to help campaign contributors and political allies who want to roll back public access even further.

In 2004, for example, the same year voters approved the sunshine amendment, the Legislature also passed a bill that required judges to seal entire divorce records at the request of a spouse.

Critics said the law was designed to help supermarket magnate and billionaire Ron Burkle, a major campaign contributor, who was in the midst of a divorce. A state appeals court later struck down the law after the California Newspapers Publishers Association, the Los Angeles Times and The Associated Press challenged it. Documents later unsealed in the Burkle case contained allegations that he had spied on his ex-wife, their young son and her boyfriend.

The Legislature also has taken steps to restrict access to information about members of public employee unions -- perennial campaign contributors to Democrats, who are in the majority in both houses.

The only crime identified in California's public records act: Disclosing private telephone numbers and personal information about public employees. Conversely, there are no criminal penalties for failing to release the countless other public documents citizens may seek.
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A recent case has raised concerns that California is trending even further from the spirit of its sunshine laws.

The state Supreme Court last year ruled that a San Diego County sheriff's deputy had the right to keep documents from a disciplinary hearing secret on appeal. Since then, Berkeley, Oakland, San Francisco, Los Angeles and other cities have ruled that they will no longer hold public police disciplinary hearings.

Los Angeles has had the most high-profile case since the ruling. In January, police barred reporters from a hearing in which a police panel went against an earlier opinion by the city's police commission. The panel ruled that an officer was justified when he fired 10 shots at a 13-year-old suspected car thief, killing the boy.

Assemblyman Mark Leno, D-San Francisco, has introduced a bill to abrogate the Supreme Court decision.

His bill would amend the state penal code to require police departments to follow the public records act by disclosing complaints, charges, allegations and disciplinary actions taken against officers. Senate Majority Leader Gloria Romero, D-Los Angeles, also has introduced a bill on the issue.

A San Francisco Bay area couple also is suing seven police agencies in Santa Clara County to adhere to public records laws.

First amendment lawyers, lawmakers and government watchdog groups largely agree that if California's open records were followed, they might work well.

A first step, they say, would be for the state to begin tracking violations and instances in which state agencies deny public records requests. Beyond that, there is disagreement about the best way to improve enforcement.

Scheer said he's not convinced that criminal penalties are the way to go.

"A criminal case is an atomic bomb that could never be dropped because it wouldn't be acceptable and a jury wouldn't convict," Scheer said. "Open government needs a weapon that's a lot more discriminate and has a lot less collateral damage.

"I'd like individuals to be able to bring a suit like they do now, and if they can establish that a government acted deliberately and repeatedly to violate the law, in that case a judge should be able to order agencies, or even officials to pay fines."

Kelli L. Sager, a Los Angeles lawyer specializing in media law, said legal fees can be a significant penalty against the state. She noted her firm collected $100,000 when a judge ruled former Gov. Gray Davis' administration could not withhold documents relating to the state's energy crisis.

Sager suggested that if the public could sue for monetary damages, and not just lawyers' fees, it might prod officials to be more forthcoming.

"It's expensive for news agencies to take on in the first place. Plaintiffs have to think hard," she said. "But for state and local governments, it's taxpayer money. They don't feel" the cost.
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Leno, the San Francisco assemblyman, thinks more legislation is needed. On Friday, he announced he would author three bills regarding access to public records.

In addition to the measure seeking to open police hearings, Leno has reintroduced the bill the Legislature overwhelmingly supported and Schwarzenegger vetoed last year. It would require the state's attorney general to review disputed cases of agencies that refuse to release documents -- much the way other states do.

In his veto message, Schwarzenegger said that plan was "unduly burdensome" and would create a conflict of interest because state agencies rely on the attorney general for legal opinions -- including those to justify refusing to release government documents to the public.

Leno's third bill would require state agencies to store electronic records in open formats so citizens could more easily access and interpret the information. In all, eight bills are now pending in the Legislature to increase public access.

Other lawmakers and freedom-of-information advocates favor creating a state ombudsman office or a non-governmental state sunshine commission to review denials of requests for records. Such a body also might issue opinions that could pressure agencies to reconsider.

Francke said he believes a root cause of California's lax open-records enforcement is a cultural one -- and that must change for the state to progress.

"California is the land of 'give everyone a second chance' and 'off to rehab' and 'oh well,'" he said. "That doesn't go well with, 'No, we want the records. We want the real story.'"
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On the Net:
http://ag.ca.gov/open_government/index.php
http://www.cfac.org/content/index.php
https://www.calaware.org
http://www.cnpa.com



California open-government laws at a glance

By The Associated Press

California's open government laws can be divided into two groups, those designed to protect citizens' access to records and those to ensure access to meetings. Proposition 59 codified those rules in the state Constitution.

MEETINGS:
The laws governing meetings -- The Ralph M. Brown Act for local jurisdictions and the Bagley-Keene Open Meeting Act for state agencies -- carry both criminal and civil penalties for those who violate them.

Public officials can face misdemeanor charges for subverting the laws by deliberately voting on matters at improperly scheduled public meetings. Under the laws, the actions taken at those meetings also can be nullified by a judge if disputed within 90 days.

But open government experts say there have been only a handful of investigations into such activity in the last 25 years, and not one recorded prosecution of an elected official.

The state also has the Grunsky-Burton Open Meeting Act, which requires meetings of the Legislature to be open to the public. But it exempts a significant amount of information from public view.

RECORDS:
The California Public Records Act establishes the right to inspect and obtain copies of state and local government documents. If agencies deny access, citizens' only available recourse is to file a lawsuit.

The only available hammer -- assuming the plaintiff wins -- is to ask a judge to order the overnment to pay the plaintiffs' legal fees. While such court fees are an important consideration for small jurisdictions, larger government bodies with more money can stonewall requests for months, or even years, appealing rulings to appellate courts, and, ultimately, to the state Supreme Court.

PROPOSITION 59:
Approved by 83 percent of voters in 2004, Proposition 59 requires that state statutes and rules furthering public access must be broadly construed and that statutes limiting access must be narrowly construed. It also requires justification for any future statutes that limit access, while preserving constitutional rights of privacy, due process and equal protection. It exempts the Legislature's records and meetings.

Proposition 59 did not explicitly create new access to records or meetings. So far, there has not been significant judicial interpretation of the amendment by the state's top courts.
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Sources: Legislative Analyst's Office, California First Amendment Coalition, California Attorney General's Office.
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On the Net:
http://ag.ca.gov/open_government/index.php
http://www.cfac.org/content/index.php
https://www.calaware.org
http://www.cnpa.com