California courts and state officials are ignoring the people’s open government guidelines
Whatever happened to
Prop 59?
By Jodi Cleesattle
Southern California SPJ Project Sunshine Chair
Two years ago, California voters decisively passed
Proposition 59, adding a provision to the state constitution making clear the
importance of open government.
Proposition 59 didn’t create any new laws, but it directed
that any laws that further the people’s right of access must be interpreted broadly,
while any laws restricting access must be construed narrowly.
A mere two years later, California officials and courts seem
to have all but forgotten about Prop 59.
In the last few months, our courts, governor and attorney
general have restricted access to public records, allowed officials to skirt
the open meetings law, and vetoed new rules that would make it easier to
request copies of government records.
On August 31, the California Supreme Court ruled that records
relating to a deputy sheriff’s appeal of his termination were not open to the
public under the California Public Records Act.
The case, Copley Press, Inc. v.
Superior Court, arose when the San Diego Union-Tribune sought access to records
of a Civil Service Commission hearing in the appeal.
The Commission withheld most of its records, including the
deputy’s name. The few documents
eventually produced revealed that the deputy was fired based on his conduct in
responding – or, actually, failing to properly respond – to a domestic violence
call.
The California Supreme Court ruled that the records could be
kept secret because they were personnel records maintained by the deputy’s
“employing agency,” reaching this conclusion even though the records were not
maintained by the officer’s employer – the sheriff’s department – but by the
independent Civil Service Commission.
Less than a month later, on September 20, state Attorney
General Bill Lockyer issued opinion advising that prosecutors may not
produce records regarding a criminal defendant’s prior offenses, parole status
or probation status. Although local
prosecutors have routinely released information from defendants’ “rap sheets”
in the past, the attorney general’s opinion makes that information off limits.
There are courtroom rules about whether a defendant’s prior
record comes out during a criminal trial – and for good reason. But those rules preventing jurors from hearing information that
might improperly sway their opinion should not prevent the public from learning basic facts about a criminal defendant and his
prior history with the law.
In early October, Governor Arnold Schwarzenegger jumped on
the anti-Prop 59 bandwagon, too, surprising many with his veto of a bill that
would have made it easier for the public to get access to government records.
Assembly Bill 2927, which was passed unanimously by both
houses of the California State Legislature, would have required state agencies
to provide public records information on their Web sites and to provide an
online records request method.
The bill also would have required the state attorney general
to review an agency’s denial of a public records request (if asked) and provide
a prompt written opinion on the validity of the denial. The proposed law also would have enacted
stiffer penalties for agencies that fail to comply with the open records law.
Schwarzenegger is not the first governor to veto a bill that
would have assigned these new open-records duties to the attorney general. But he is the first governor to do so
post-Prop 59, and after campaigning on a specific pledge to restore openness in
government.
More recently, on October 31, a California appeals court
gave a narrow interpretation to the Ralph M. Brown Act, California’s open
meetings law. In Wolfe v. City of Fremont, the court okayed the actions of a city
manager who individually contacted each city council member, in advance of a
public meeting, to drum up support for a new policy. The court said the city manager did not
violate the open meetings law – even though the council members reached a consensus
based on their private conversations – because the city manager had not acted
as an “intermediary” among the council members.
This narrow holding conflicts with the attorney general’s
own advice published in a 2003 pamphlet – available online – about the Brown
Act’s open meetings requirements. In
that pamphlet, Lockyer advised local government officials not to brief
legislators on policy decisions in advance of public meetings because “if
these communications are permitted to occur in private, a large part of the
process by which members reach their decisions may have occurred outside the
public eye.”
That was sound advice before Proposition 59 was passed in
2004, and it’s even better advice in the wake of Prop 59 and its proclamation
that “[t]he people have the right of access to information concerning the
conduct of the people’s business.”
It’s not clear why the California courts and state officials
have strayed from that noble sentiment.
One can only hope that concerned Californians – whether members of the
mainstream media, gadfly bloggers, academic scholars, historians, or average
civic-minded citizens – will continue to press for open government.
Proposition 59 should not be so quickly forgotten.
– Jodi Cleesattle is
an attorney in San Diego and a member of the Board of the San Diego Pro Chapter of the Society of Professional
Journalists