Celebrate Sunshine Week in California–Hold Public Officials Accountable for Access to Information

By Karl Olson

Californians declared by an overwhelming vote two years ago that they have a constitutional right of access to “information concerning the conduct of the people’s business,” including both the meetings and the records of the officials who spend public money.

But sometimes those same public officials have to be dragged, kicking and screaming, into recognizing that constitutional right.

Consider these developments since the November 2004 passage of Proposition 59, the constitutional “right-to-know” provision which received an astounding 83 percent vote:

• While Gov. Arnold Schwarzenegger agreed, in a break with his predecessors, to disclose his calendars (showing people with whom he met about policy issues) after Prop. 59’s passage, some of his top aides refused to do so until a lawsuit was filed against them. And the governor still invokes a murky, elastic “deliberative process privilege” to withhold some documents from disclosure despite clear ballot language that Proposition 59 was intended to do away with that “privilege.” Most recently, the governor asked a court to clamp a lid of secrecy over input to him on what to do with California’s lethal injection procedures.

• Two San Bernardino County supervisors refused to disclose their calendars — even after the governor and three other San Bernardino supervisors disclosed theirs — triggering a pending lawsuit brought by the California First Amendment Coalition and a local newspaper against that county.

• Two public employee unions in Alameda County are appealing lower court rulings ordering the city of Oakland to disclose the names and salaries of public employees making more than $100,000 a year. The California Supreme Court is considering that case.

There’s no good reason for the public officials in any of these cases to be fighting against disclosure. They are public officials doing the public’s business, and being paid pretty well while they do it. None of them has any reasonable expectation of anonymity, and if they didn’t want basic information about themselves disclosed they shouldn’t have gone into public service.

All of these people would do well to heed the words of Harry S Truman: “If you can’t stand the heat, get out of the kitchen.” This is especially true with people like the governor or county supervisors who ran for public office, but no less true of the people who set or implement public policy and make the kind of six-figure salaries at issue in the Oakland case.

In fairness, California public officials aren’t the only people with a penchant for secrecy. Venture capitalists a few years ago fought against disclosure of how well their funds performed, even though they’d accepted hundreds of millions of dollars from public pension funds like the California Public Employees’ Retirement System (CalPERS) and the University of California.

The deposed executives of software maker Mercury Interactive are fighting against disclosure of a complaint which charged them with backdating of stock options, even though state court rules provide that such documents should be public in all but the most exceptional circumstances. And at the federal level, Vice President Dick Cheney has been fighting almost since he took office to avoid disclosing the names and affiliations of energy company executives with whom he met while formulating the administration’s energy policies.

What’s the answer to this secrecy? It will take a continually vigilant public, acting through measures such as Proposition 59 and holding elected officials responsible when they deny access to information, and public officials and judges who take seriously the constitutional right of access provided by Proposition 59.

As James Madison, a founding father and America’s fourth President, said, “Knowledge will forever govern ignorance, and a people who mean to be their own governors must arm themselves with the power which knowledge gives.” And as the framers of Proposition 59 said two centuries later, “A government that can hide what it does will never be accountable to the public it is supposed to serve.” Those remain words to live by.

Karl Olson, a graduate of Sonoma State University, is a partner at the San Francisco law firm of Levy, Ram & Olson who specializes in First Amendment law. Olson has defended numerous news media clients and individuals in defamation and SLAPP (Strategic Lawsuits Against Public Participation) suits, including the San Francisco Chronicle, the Sacramento Bee and others. He is a board member for the California First Amendment Coalition and counsel in several cases mentioned above.