California: Decision in favor of disclosure in kidnapping case adds starch to publics’ right to government records

A Superior Court  judge strengthened the Public Records Act by ruling that the press and the public had the right to access government records to answer questions about why parole officers did not check on registered sex offender Philip Garrido who had kidnapped a 12-year-old girl and held her captive for 18 years. -db

Contra Costa Times
March 8, 2010
By Thomas Peele

More than five years ago California voters overwhelmingly passed Proposition 59, which inserted the public’s right to access government records into the state Constitution.

Here is the substance of what more than 83 percent of voters in the 2004 general election approved:

The people have the right of access to information concerning the conduct of the people’s business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.

A statute, court rule, or other authority, including those in effect on the effective date of this subdivision, shall be broadly construed if it furthers the people’s right of access, and narrowly construed if it limits the right of access. A statute, court rule, or other authority adopted after the effective date of this subdivision that limits the right of access shall be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.

That language seems simple enough, especially the part that requires the rules — effectively the Public Records Act — be broadly construed if they further the right of access. The law already statutorily required a broad view of disclosure, but putting the same language in the Constitution added significant weight.

But then comes the legal mumbo jumbo — the words that seem to mute much of the above: Nothing about Prop. 59 shall nullify the right to privacy, or any statutory exemption to access to records.

In other words, Prop. 59 starts great and ends poorly. It took a lot of compromising language to get it on the ballot — language that effectively gives the government’s information gargoyles too much wiggle room to disregard the voters’ intent.

I cite Prop. 59 in every public records act request I file and in many, many arguments with bureaucrats as I try to wring public records from them.

It has, for years, been largely an effort in futility. Bureaucrats don’t think outside of the preverbal box, and judicial interpretations tend to come slower than BART expansion, or the Caldecott Tunnel’s fourth bore, or the new Bay Bridge. In other words, never as quickly as the public needs them.

The problem always seems to be that there is no clear judicial writing on Prop. 59’s meaning, something, when needed, that can be used as a figurative club in the fight for access.

But one has finally arrived. And bizarrely the person at the root of it is Antioch’s Philip Garrido, the convicted sex offender who is accused of keeping Jaycee Lee Dugard captive in his backyard for 18 years.

A pair of newspaper companies — McClatchy and Hearst — sued the California Department of Corrections and Rehabilitation for Garrido’s parole field file after the department refused to release it under the Public Records Act.

At the heart of the newspapers’ argument was a simple question: How did Garrido manage to avoid being found out for nearly two decades when parole agents were supposed to be checking up on him?

The state argued that regulations made the file exempt from disclosure. But that’s where Prop. 59 made what is arguably its biggest difference yet.

Sacramento County Superior Court Judge George P. Marlette ordered the records released, specifically citing Prop. 59 because the regulation was adopted in 2009 — well after voters amended the Constitution — and it didn’t contain any findings demonstrating why limits on disclosure were appropriate.

Marlette then went on to write in his decision that Prop. 59 also requires the principle of the broad view of disclosure.

The case was argued by attorney Karl Olson, who has also worked for the Bay Area News Group.

Given the likelihood that aggressive parole oversight of Garrido would have saved Dugard years of terror and imprisonment, the public interest in disclosure was “at its apex” in the case, Olson said. “It was obvious from the start that this was an egregious situation.”

There are no higher needs for access to government records when those records illuminate wrongdoing, incompetence or corruption.

Lo and behold, the records that Marlette ordered released because of his interpretation of the constitution showed parole agents had little interest in thoroughly checking on Garrido and didn’t even realize for a year after he moved from Nevada that he was a registered sex offender.

Down here in the trenches, Marlette’s reliance on Prop. 59 is a welcome weapon, although certainly not one worth a minute of Jaycee Dugard’s suffering. Perhaps the disclosures the judge ordered will prevent someone else from experiencing her horrors.

Copyright 2010 Bay Area News Group