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Does California Need More Sunshine?: A Brief Polemic In Favor Of California’s Proposed Constitutional “Sunshine Amendment”¹

By John D. Kostrey and Duffy Carolan
[Fall 2004]

“People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing…”²

The simple logic that the public’s business should be done in public escapes many state and local government agencies. More often than not, secrecy enshrouds government activities and thwarts citizen efforts to scrutinize and participate at the state and local levels. Fortunately for the citizens of California, help is on the way. On Nov. 2, 2004, the general election ballot will provide Californians with the chance to vote on, and hopefully approve, the Sunshine Amendment, thus enshrining the right of open government where it rightfully belongs—in the state constitution.³

Although the right of access to meetings of public bodies and writings of public officials and agencies already is delineated in statutory laws, enshrining these fundamental concepts in the constitution will protect them against inevitable encroachment from the Legislature and the fluctuations of the political process. Perhaps it will raise the public’s awareness of the need for transparency in government as well, which is exemplified through the degradation of these rights in recent years by government agencies bent on reading access laws narrowly, by legislative adoption of exemptions to our access laws and by judicial interpretation of these laws in favor of government secrecy. California is not alone in recognizing the need to protect the public’s right of access through its constitution. So far, several other trailblazing states have passed similar legislation.⁴ With any luck, the voters of California will follow suit and prevent this auspicious opportunity from passing them by come November.

The Amendment and its effect

The Sunshine Amendment is a unique piece of legislation that will place a constitutional amendment on the ballot to allow voters to strengthen the public’s right of access to both government records and meetings of government bodies.⁵ If Californians approve the Amendment, it would, as of Jan. 1, 2005, amend Article I, Section 3 of the California Constitution, which currently 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 Amendment would make the aforementioned provision subdivision (a) and would state the following as subdivision (b):

The Sunshine Amendment, if enacted, would accomplish many things. First, the Sunshine Amendment would firmly establish a fundamental constitutional right for people to scrutinize what their government is doing by mandating access to government records and meetings of government bodies.⁷ By elevating the right of access to constitutional stature, all newly enacted state laws and administrative regulations would be required by law to conform to the Amendment’s provisions. Practically speaking, it would bring more weight to the public’s right of access both at the agency level and when access disputes are brought before our courts for resolution. This is because the Amendment leaves no doubt as to the importance of access to the people of California and consequently renders ineffective the assertion that access in a particular case serves no public purpose—a claim often asserted by government agencies to defeat access. Additionally, engrafting this right into our constitution, at least theoretically, increases both accountability and legitimacy by giving citizens a stronger basis for knowing and understanding what their representatives are up to. Unless citizens have access to information, they are simply incapable of participating and contributing effectively to our republican system of self-government.

Second, the Sunshine Amendment would mandate that statutes, court rules or other authority be construed broadly when they further the public’s right of access and be construed narrowly when they limit the right of access. While this requirement applies most directly to courts interpreting statutory law, it also applies by logical extension to the agencies making the initial determination of whether to grant access to public records or meetings. Even though case law has long required this construction under existing access laws, placing it expressly within the constitution hopefully will avert many disputes at the agency level by discouraging access denials based on overly broad interpretations of existing exemptions that favor government secrecy.

Third, the Sunshine Amendment would require that in adopting new laws, court rules or other authority that limit the right of access, express findings be made demonstrating the interest purportedly protected and the need for protecting that interest. Thus, the adoption of agency rules and regulations, for example, intended to impede public access will no longer be allowed on the whim of the agency’s governing body but will require actual on-the-record findings demonstrating the need for secrecy and demonstrating how the exemption will achieve that need. This requirement resembles that which already is required of courts before sealing any court record or closing any court proceeding. As a matter of constitutional and common law, judges must keep secrecy to a minimum and must explain their reasons for excluding public access, based on the dictates of the situation they are facing.⁸ Importantly, this requirement will give the public much needed ammunition to challenge the purported justification for new laws, court rules or other authority that seek to limit the public’s right of access.

Fourth, the Sunshine Amendment leaves intact the right of privacy guaranteed by the constitution by clarifying that it does not supersede or modify the existing constitutional right of privacy.

The Amendment expressly recognizes that it does not affect the protections afforded peace officers over information concerning their official performance or professional qualifications already set forth in our Evidence Code and penal laws.⁹ Additionally, presumably inserted in order to win legislative approval, the Amendment would have no power to supersede or modify any existing or future limits on public access to meetings and records of the Legislature found in the constitution, statutes, and house rules.¹⁰

Notwithstanding the Sunshine Amendment’s short list of enumerated exemptions, the overall thrust of Prop 59 is to firmly establish a fundamental right of open government for the public.

How existing open government laws have fallen short

At first, it might seem unnecessary (or even redundant) to install a constitutional amendment to safeguard a basic right of democracy. To help citizens eradicate governmental corruption, California has already enacted a public records act, open meetings acts, and other statutes that are supposed to guarantee access to information at all levels.¹¹ Unfortunately, the existing laws have been unable to stop widespread governmental secrecy. Public officials repeatedly flout state and local sunshine laws and stonewall efforts to find out what is going on in government.

Specific examples of the current access laws’ shortcomings are endless. In 2001, former Governor Gray Davis hid the details of the state’s power company contracts during the energy crisis.¹² After media organizations represented by Davis Wright Tremaine LLP filed a petition seeking access to these state-funded contracts under the California Public Record Act (CPRA), the former governor insisted that it would irreparably harm the public interest to disclose any of the contracts until “Jan. 1, 2003,” which was (not coincidentally) seven weeks after the next gubernatorial election. After a protracted legal battle, the media organizations were finally granted the release of the contracts in unredacted form, and it was revealed that nearly $43 billion in deals were made.¹³ Even though this signaled to academics that, “the state negotiated the electricity contracts at the worst possible time, for far longer than necessary, at ridiculously inflated prices,” it was too late to turn back the clock.¹⁴ Now, as a result of the former governor’s inexperience in negotiating the contracts and his subsequent secrecy, the untimely disclosure of the state’s clandestine dealings will cost California taxpayers billions of dollars over the next two decades.¹⁵

Commissioner Charles Quackenbush’s resignation provides another clear example of the access laws’ limitations. For months, state Senator Byron Sher and reporters attempted to obtain records from the Insurance Department documenting how former Commissioner Quackenbush was regulating insurance companies’ claims stemming from the 1994 Loma Prieta earthquake.¹⁶ They cited the CPRA as authority in their requests, but were denied at every turn because the agency categorically marked all the documents as “confidential.”¹⁷ Ultimately, it was a whistleblower’s leak to the Los Angeles Times—not the power of the CPRA—that generated the incriminating evidence that caused an ensuing public uproar and eventually prompted Quackenbush’s resignation.¹⁸

Both scandals demonstrate that when releasing records is potentially embarrassing or incriminating to the officials that process the requests, the agency’s knee-jerk response is commonly unmitigated denial. The public should not be forced to rely on the discretionary power of public officials (or insider leaks reported to the media) to obtain information that is owed to them as a matter of law.

Discretionary abuse in favor of government secrecy is not unique to state officials. Secrecy at the local level occurs with comparable frequency and has made access to basic public information problematic as well. Indeed, when The Bakersfield Californian recently asserted a right of access from its local school district to disciplinary records of an elementary school principal, who was under investigation for allegedly murdering his former wife, their two children and his mother-in-law, the paper was met with claims that the former-principal’s purported privacy rights—in how he conducted himself on the job—outweighed the public’s right of access. Luckily, a superior court, and subsequently an appellate court, disagreed.¹⁹ But it took a lawsuit to pry open the district’s files. Similarly, a lawsuit by the Daily Review in Hayward was the sole incentive for the local school district to release investigatory records pertaining to two high-ranking district administrators initially investigated in connection with the alleged destruction and stowing away of public records.²⁰ Most recently, the City of Oakland flouted its own sunshine laws, requiring disclosure of exact gross salary and paid benefits to every public employee, when they denied CPRA requests made by The Oakland Tribune, The Contra Costa Times, and East Bay News Service for individual salary information of certain city employees.²¹ It did so despite a long history of providing this information to the public and in misplaced reliance on a case where no such ordinance existed and where, preliminarily, assurances of confidentiality and policies of secrecy were shown to exist.²² Without disclosure of this basic public information about how taxpayer dollars are being spent, it becomes difficult to hold our government accountable for misuse of public funds and nearly impossible to root out rampant government favoritism or nepotism.²³

In innumerable other scenarios, the CPRA has been litigated so vehemently it has lost its teeth. In 1998, a legislative task force (responding to the fallout from the Quackenbush scandal and his subsequent resignation) issued a report entitled, “KEEP OUT: The Failure of the California Public Records Act,” concluding that the law had been “interpreted, reinterpreted and fiddled with to the point that it has become of little appreciable value to the public.”²⁴ Two years later, in 2000, a Senate committee’s efforts to investigate concerns related to the Quackenbush controversy were so thwarted that a department attorney had to risk her job and license in order to provide the committee with relevant records (withheld by her superiors) showing probable misconduct by insurance companies.²⁵

An abundance of empirical data highlights the CPRA’s deep-rooted flaws. The published study of CFAC’s October 2000 audit, entitled “State of Denial,” concluded that legitimate requests for public information were denied by sheriff’s departments 80 percent of the time, cities and police departments 79 percent of the time, and schools 72 percent of the time.²⁶ These astoundingly high percentages are akin to a similar study conducted in July 2002, when The Vacaville Reporter released a public information audit—“For the Record”—in which they reported that 45 percent of the public records requests submitted to Solano County (and its seven cities) failed to disclose records in compliance with access laws.²⁷

Most recently, during a six-week period in April 2004, The Contra Costa Times sent out 20 reporters and editors to agencies across the region.²⁸ The result of this study was alarming: 1) only 37 of the 86 agencies timely complied with requests for statements of economic interest;²⁹ and 2) only 20 of 79 agencies granted immediate access to the employment contract of an agency’s top executive official (such as a city manager or school superintendent), notwithstanding a statute unequivocally making such contracts public records.³⁰ Despite the clear language of the CPRA, the prolonged delays (and steadfast refusals in some cases) associated with public records requests persists. The passage of a constitutional amendment will hopefully reduce these repeated and often unjustified denials of public access.

Similarly, the government blatantly abuses the Ralph M. Brown Act and often operates surreptitiously.³¹ Although closed sessions are permissible for a few narrowly defined exceptions—for example, to discuss litigation or certain personnel issues—the Brown Act generally obligates government agencies to meet and act in public.³² In March 2002, a Los Angeles Times article reported that “the Los Angeles County Board of Supervisors (LACBS) makes more than 90 percent of its official decisions without public debate, spending millions of taxpayer dollars on contracts, settling major lawsuits and making policy changes behind closed doors, or without discussion.”³³

A prime example of these violations occurred in December 2001 and January 2002 when the LACBS defied the Brown Act’s mandates by holding illegal secret meetings to discuss how to derail ballot measures that would increase the pay of county health care aides.³⁴ This important public policy issue, which was not listed on the agenda, should have been discussed in public. It was only because of the mistaken release of internal board documents in February 2002 that the public even learned of the board’s blatant violations of the Brown Act.³⁵ In spite of the board’s insistence that it committed no wrong, a court subsequently declared the serial closed door gatherings of the LACBS unlawful, thanks to a Los Angeles Times lawsuit that brought the issue to public light.³⁶

The illegal practices of the LACBS are far from unique. In October 2002, Ohlone College’s board of trustees unanimously voted to establish architect selection committees for two major construction projects to be paid for by a taxpayer bond of $150 million. The selection committees, though comprised in part of public members and acting under the direction of the board, were originally planning to conduct their selections in secret. It was not until the local paper, The Argus, threatened to sue the board that it agreed to fully comply with the Brown Act’s open meetings laws for its selections committees.³⁷

In short, discussions and deliberations that should be held in public are consistently being conducted furtively in violation of the Brown Act. Legislation can only go so far in controlling how government officials govern. At present, it is simply too easy to administer blanket denials to document requests by citing a CPRA exemption without justification, or disobey the Brown Act by holding hush-hush governmental meetings. As evidenced by the litany of abuses inflicted on our current transparency laws, a constitutional guarantee of openness is crucial. Whereas legislation is ill-equipped to microregulate routine governmental operations, the constitutional mandates of Prop 59 are specifically designed to combat access laws’ susceptibility to manipulation and misinterpretation. In short, Prop 59 has the power to reduce the astounding frequency with which governmental agencies engage in non-compliance, outright abuse, and utter disregard of our existing open government laws.

How the judiciary has contributed to the erosion of open government laws

Sadly, courts have factored significantly into the gradual weakening of our current public access laws. These laws remain the public’s main safeguards against crooked and inept government. Over the last decade, courts have chipped away so much at the strength of the existing open government laws that the CPRA has been dramatically altered in the process. Consequently, the need for a constitutional basis for openness has accelerated dramatically in the last few years, making it more essential now than ever before.

For example, in 1991, the California Supreme Court paved the way for the vague, ambiguous and overly broad “deliberative process” exemption by allowing government decision-makers to withhold documents that would show how their decisions were reached, who influenced them or what their thinking was during their deliberations.³⁸ Initially, the logic behind the exemption was to protect creative debate and candid consideration of alternatives within an agency.³⁹ Unfortunately, to illustrate how bottomless this exemption has become, it has been cited to deny access to phone billing records of city council members that would reveal calls placed as part of official city business.⁴⁰ Presumably, the nonsensical justification against disclosure is that the records would reveal who council members called, which in turn is the “functional equivalent” to the “substance or direction” of the judgment and mental processes of city council members.⁴¹ It defies logic to claim that mere disclosure of telephone numbers somehow reveals the psychological innerworkings of an individual’s mind.

The “deliberative process” exemption also 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.⁴² This overused “privilege” has even allowed the governor to claim that something as basic as his appointments calendar is not a public record!⁴³ Routine disclosure of all of these records, however, is essential to guarantee a free flow of information to the public as well as provide a safeguard against governmental corruption.

Addressing other exemptions, our courts have concluded that even when no harm can be associated with the release of police records in closed investigations, the CPRA allows police departments to keep their files closed permanently at their discretion.⁴⁴ This rule is in stark contrast to the comparable provision under the federal Freedom of Information Act (FOIA) – 5 U.S.C. § 552 – which requires the FBI and other federal law enforcement agencies to open files of closed cases when doing so would cause no harm.⁴⁵ Recently, the California Supreme Court even extended the “law enforcement” investigatory records exemption to basic information about routine traffic stops.⁴⁶ The Brown Act also has suffered in recent years at the hands of the judiciary. Because the litigation and appellate process is so costly and time-consuming, citizens are finding it practically impossible to reverse decisions that public bodies make in closed sessions.⁴⁷ Moreover, besides drastically weakening the ability to rectify illegally-made decisions, the process of prosecuting Brown Act violations often becomes a quagmire because members of elected bodies cannot be ordered (during the discovery process) to disclose actions or discussions during closed sessions.⁴⁸ This bar to discovery essentially deprives the plaintiff of any direct evidence to use in enforcing the law as it now stands.⁴⁹ Also on the open meeting side, courts have concluded that local councils and boards can use closed sessions under the personnel exemption to set performance goals for their chief executives.⁵⁰

Although the judicial system has allowed clandestine government behavior to flourish in spite of the access laws, the passage of Prop 59 would take significant strides towards ensuring that this trend comes to a halt. By establishing a stronger constitutional framework for access to meetings and public records, Prop 59 will make it significantly harder for agencies to keep things hidden from public view for arbitrary or inadequate reasons and for courts to ignore the importance of public scrutiny of the public’s business.

Conclusion

Placing the Sunshine Amendment on the ballot symbolizes a strong positive step towards opening California government. If the Amendment passed and became part of the constitution, its goal of openness would be catapulted into the echelon of our state’s most cherished values, and the people’s respect for transparency in government would likewise be enhanced. As exemplified above, a Sunshine Amendment is sorely needed in this state to protect against the ever eroding rights of the public to scrutinize how the government is carrying out the public’s business.

One of the most important components of representative government is transparency. While mandates favoring greater public access may be annoying, inconvenient, cumbersome (or even extremely embarrassing), the collective public’s interest in knowing what their government is up to outweighs any opposing individual interests in secrecy on the part of officials and agencies. Public scrutiny keeps government honest. Hopefully, in November 2004, the voters of California come to concur with this fundamental democratic principle and will vote “yes” on Prop 59, California’s much needed Sunshine Amendment.

END NOTES

1 Throughout this article, the “Sunshine Amendment” will be referred to interchangeably under its more formal legislative pseudonym – Senate Constitutional Amendment 1 or SCA 1 – or under the proposition number for the November 2004 general election ballot – Proposition 59 or Prop 59. The current version of SCA 1 has endured a long-stalled congressional history; its proposed legislative predecessor was referred to as Senate Constitutional Amendment 7 or SCA 7. CFAC: California First Amendment Coalition, at http://www.cfac.org/sca/sca1.html. SCA 1 is the brainchild of the California Newspaper Publishers Association (“CNPA”) and California First Amendment Coalition (“CFAC”). Both organizations have become seriously alarmed at the steady stream of laws making it harder to get access to heretofore open public records and the unjustified closures of public meetings. See also March to Close Government Meetings, Public Records Might Slow With SCA7, Milpitas Post, March 14, 2002.

2 Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 572 (1980) (C.J. Warren Burger) (emphasis added).

3 The proposed Sunshine Amendment, which was introduced by Senator John Burton, a San Francisco Democrat and president pro tem of the state Senate, passed the Senate in June 2003 on a 34-0 vote, and the Assembly in January 2004 on a 78-0 vote. See Californians for Open Government, The California Sunshine Amendment, Government Open to the People, Frequently Asked Questions About the Sunshine Amendment and Talking Points (2004); CNPA, SCA 1 CNPA Legislative Bulletin Articles: Sunshine Campaign Meeting Set, January 26, 2004, at http://www.cnpa.com/LEG/GA/sunshine.htm; Open-Government Measure Reaches California Ballot, The Associated Press, January 14, 2004. A majority of voters must approve the addition to the state Constitution for it to become law.

4 Several states, including Florida, Louisiana, Montana, New Hampshire, and Tennessee, have adopted constitutional guarantees of public access to government records and government proceedings. See CFAC, supra note 1; SCA 1 Senate Constitutional Amendment – Bill Analysis, at http://info.sen.ca.gov/ pub/bill/sen/sb_0001-0050/sca_1_cfa_20030715-_123944_asm_comm.html.

5 See CFAC, supra note 1.

6 Proposed SCA 1, last amended in Senate June 27, 2003, at http://info.sen.ca.gov/pub/bill/sen/sb_0001-0050/ sca_1_bill_20030627_amended_sen.html (emphasis added).

7 CFAC, supra note 1.

8 Under well-established First Amendment principles, a court may seal a judicial record only “in the rarest of circumstances” and blanket sealing orders are presumptively unconstitutional. NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal. 4th 1178, 1226 (1999). Court records can be sealed only if the Court finds that (i) there exists an overriding interest supporting closure; (ii) there is a substantial probability that the interest will be prejudiced absent closure; (iii) the proposed closure is narrowly tailored to serve that overriding interest; and (iv) there is no less restrictive means of achieving that overriding interest. Cal. R. Ct. 243.1(d); NBC Subsidiary, 20 Cal. 4th at 1181.

9 Perhaps one of the biggest disappointments of the Sunshine Amendment came soon after its original version, SCA 7, was introduced to the Legislature in 2002, when the powerful law enforcement employee lobby threatened to derail SCA 7 if not amended to specifically provide for preservation of peace officer privacy rights under existing statutory laws. See CNPA Legislative Bulletin, April 8, 2002, at www.cnpa.com/Leg/GA/legbularchive/01-02/040802.htm. To enhance the likelihood of SCA 7’s passage, CNPA and CFAC reluctantly agreed to amend the language to provide for preservation of the current procedure for obtaining information on the official performance or professional qualifications of peace officers. While Prop 59 expressly recognizes the existence of these procedures, the current language leaves room for judicial interpretation of the proper reconciliation of these procedures with the constitutional right of access.

10 Interestingly, during his campaign and post-election pronouncements, Governor Arnold Schwarzenegger declared his firm opposition to SCA 1’s “Legislature” exemption. While he wholeheartedly supported SCA 1, he announced that he “would eliminate the special protection from public scrutiny of proceedings, records, and deliberations of ‘the Legislature, the Members of the Legislature, and its employees, committees, and caucuses.’ There is no reason why the Legislature should be shielded from the antiseptic of sunshine.” Join Arnold! Official Website: Californians for Schwarzenegger, at http://www.joinarnold.com/en/agenda; see also CFAC: California First Amendment Coalition, at http://www.cfac.org/Stories/public_information.html.

11 These laws include the California Public Records Act (“CPRA”), Cal. Gov’t Code §§ 6250 et seq., the Ralph M. Brown Act, Cal. Gov’t Code §§ 54950 et seq., the Bagley-Keene Open Meeting Act, Cal. Gov’t Code §§ 11120-11132, the Legislative Open Records Act, Cal. Gov’t Code §§ 9070 et seq., and the Grunsky-Burton Open Meeting Act, Cal. Gov’t Code §§ 9027-9032. Additionally, several municipalities have enacted local sunshine ordinances that in certain respects provide broader protections than those afforded under state laws. See, e.g., San Francisco Sunshine Ordinance, Administrative Code Chapter 67; Oakland Sunshine Ordinance (Ord. 12483 (part), 2003; Ord. 11957 § 00.2, 1997); Contra Costa County Better Government Ordinance 95-6, Ordinance Code Article 25-2.205(d) (1995).

12 See, e.g., Let The People Know, Orange County Register, June 20, 2002; An End To Secrecy, San Francisco Chronicle, April 9, 2002; Upgrading Our Right To Open Government, Palo Alto Weekly, March 13, 2002; Open State, Burton Bill Enforces Public Right To Information In Age Of Secrecy, Santa Rosa Press Democrat Editorial, February 24, 2002, at G2; Support Your Right To Open Government, Lodi News Sentinel, February 4, 2002.

13 Secret Power Contracts To Be Unveiled, Silicon Valley/San Jose Business Journal, June 14, 2001; Carolyn Said, The Energy Crunch/A Year Later, San Francisco Chronicle, available at http://www.sfgate.com/cgi-bin/article.cgi.

14 Shine The Light On Open Government, Chico Enterprise-Record, February 15, 2002; Silicon Valley/San Jose Business Journal, supra note 13.

15 Open Public Records To State’s Citizens, Orange County Register, January 31, 2002.

16 See Terry Francke, Held Accountable, Los Angeles Daily Journal, February 20, 2002; see also Let The Sun Shine, Sacramento News & Review, April 11, 2002.

17 Don’t Let Government Hide, Los Angeles Times, March 12, 2002, at B12.

18 Editorial Board, Staff, Our Voice: Citizens Need Greater Government Access, The Desert Sun, January 16, 2004, at B6; Let The Sun Shine On Open Government, Merced Sun-Star, April 22, 2002; Time To Stamp Out Secrecy, `Torrance Daily Breeze, February 3, 2002; Time To End Government Behind Closed Doors, San Diego Union-Tribune, January 31, 2002; Chico Enterprise-Record, supra note 15; Lodi News Sentinel, supra note 12.

19 See Bakersfield City School District v. Superior Court, 118 Cal. App. 4th 1041 (May 2004).

20 Both newspapers were represented by Davis Wright Tremaine LLP.

21 See Oakland Sunshine Ordinance, supra note 11, Section 2.20.220C5.

22 See Teamsters Local 856 v. Priceless, LLC, 112 Cal. App. 4th 1500 (2003); see also Robert Gammon, City Won’t Say Who Got Top Pay, The Oakland Tribune, June 13, 2004; Thomas Peele, Bruce Gerstman, Times Sues Oakland For Salary Data, West County Times, July 23, 2004, at A 03.

23 Thomas Peele, Bruce Gerstman, Oakland Part of Push for Disclosure, The Contra Costa Times, June 29, 2004.

24 See Francke, supra note 16.

25 Virginia Ellis, A Staffer in Quackenbush’s Insurance Department Who Reported Wrongdoing Faced Dismissal and the Loss of Her License, Los Angeles Times, February 22, 2001, at A3.

26 California State University-Fullerton journalism students assisted CFAC in carrying out this study. See Orange County Register, supra note 15; see also Chico Enterprise-Record, supra note 14.

27 Barbara Smith, Staff Reporter, Audit Inspires Change in Solano Agencies, The Vacaville Reporter, July 28, 2002; Diane Barney, Managing Editor, Solano’s Public Documents Are Not All That Public, The Vacaville Reporter, July 21, 2002; Kent Pollock, Fighting for Open Records, The Vacaville Reporter, July 21, 2002.

28 Thomas Peele, Denis Cuff, Liz Tascio, and Ashley Surdin, East Bay Agencies Delay Or Refuse Public Records Request, Newspaper’s Audit Finds Widespread Noncompliance Despite Clear Rule, The Contra Costa Times, July 25, 2004.

29 Statements of economic interest are state-mandated documents which list officials’ businesses and investments to alert the public to conflicts of interest. Denial of access to this public information occurred fifty-seven percent of the time in Contra Costa, Alameda, and southern Solano counties. In all, 16 agencies never produced the economic interest statements. Id.

30 Cal. Gov’t Code § 6254.8. Twelve of the 79 agencies never produced their top official’s contract. Id.

31 Ted Rohrlich, Law Requiring Open Meetings Often Ignored, Los Angeles Times, Dec. 13, 1998, at 1.

32 Enacted originally in 1953 and amended frequently since, the law is intended to ensure that the actions of local governments “be taken openly and that their deliberations be conducted openly.” Cal. Gov’t Code § 54950 et seq. It declares that “[t]he people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know.” Id.

33 Evelyn Larrubia, Supervisors’ Decisions Are Made Mostly Behind Closed Doors, Los Angeles Times,
March 26, 2002, at B1.

34 Evelyn Larrubia, Board Secretly Urged Killing Ballot Item, Los Angeles Times, March 8, 2002, at B1. During one meeting on December 18, 2001, the Board voted to intentionally violate a state election law by withholding a ballot title and summary from election officials. Los Angeles Times Communications LLC v. Superior Court, 112 Cal. App. 4th 1313, 1317 (2003) (represented by Davis Wright Tremaine LLP).

35 See Larrubia, supra note 34; More Openness Needed, Mountain Democrat of Placerville, March 28, 2002.

36 See generally Los Angeles Times Communications LLC v. Superior Court, supra note 34. The Times was represented by Davis Wright Tremaine LLP and was subsequently awarded its attorneys’ fees associated with the lawsuit. Id.

37 Keeping Public Meetings Open Isn’t Frivolous, The Argus, Dec. 5, 2002. The Argus was represented by Davis Wright Tremaine LLP.

38 See Times Mirror v. Superior Court of Sacramento County, 53 Cal. 3d 1325 (1991); Cal. Gov’t Code
§ 6255(a).

39 Id. at 1351-52 (Kennard, J., dissenting).

40 See Rogers v. Superior Court, 19 Cal. App. 4th 469 (1993); see also Duffy Carolan and Selena Poon Ontiveros, Tapping Officials’ Secrets the Door to Open Government in California, at CA-11-13 (Reporters Committee for Freedom of the Press, 4th ed. 2001) (discussing generally the deliberative process exemption).

41 Rogers, 19 Cal. App. 4th at 4791.

42 See Wilson v. Superior Court, 51 Cal. App. 4th 1136 (1996); see also Nothing Keeps Official Business…, Inland Valley Daily Bulletin, April 5, 2002.

43 See Times Mirror, supra note 38; see also Don’t Let The Bureaucrats Lock You Out, San Jose Mercury News, April 9, 2002, at 6B; David Yarnold, Mercury Executive Editor, Let The Sunshine In, San Jose Mercury News, March 17, 2002.

44 Williams v. Superior Court, 5 Cal. 4th 327 (1993); Don’t Let The Bureaucrats, supra note 43.

45 California Public Records Act: Exemptions for Law Enforcement Information, at http://www.cfac.org/LAW/CPRA.

46 Haynie v. Superior Court of Los Angeles County, 26 Cal. 4th 1061 (2001).

47 See Yarnold, supra note 43.

48 Kleitman v. Superior Court of Santa Clara County, 74 Cal. App. 4th 324 (1999); Richard P. McKee, Secrecy Enshrouds LA County Halls of Power, Los Angeles Daily Journal, March 20, 2002.

49 See Kleitman, supra note 48; see also McKee, supra note 48.

50 Duval v. Board of Trs. of the Coalinga-Huron Joint Unified Sch. Dist., 93 Cal. App. 4th 902 (2001).

For more information, please contact:

Duffy Carolan San Francisco, California (415) 276-6585 DuffyCarolan@dwt.com

John D. Kostrey Los Angeles, California (213) 633-6846 JohnKostrey@dwt.com

The First Amendment Law Letter is a publication of the Communications, Media and Information Technologies Group of Davis Wright Tremaine LLP. Our purpose in publishing this Advisory is to inform our clients and friends of recent developments in communications law. It is not intended, nor should it be used, as a substitute for specific legal advice as legal counsel may be given only in response to inquiries regarding particular situations.

Copyright © 2004, Davis Wright Tremaine LLP.

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