On Access by Peter Scheer

FAC news: Prop 42 victory, amicus briefs on the Wrap, NCAA, fee waivers & more

June has been a busy month for FAC, both legislatively and judicially. Most gratifying: California voters on June 4 approved, by a comfortable 61 percent margin, Prop 42, which amends the state constitution to fortify state open meetings and FOI laws. FAC supported and sponsored Prop 42 to end funding disputes between local governments and the state that have given local governments a legal excuse to opt out of open-government laws.

Prop 42, by clarifying that cities and counties are responsible for the (modest) costs of conducting their affairs in accord with open-government laws, ends those disputes—and the legal uncertainty they caused.

In court, FAC has been making itself heard in amicus briefs filed in important first amendment and open-government disputes. In recent weeks FAC authored, organized or joined amicus briefs in the following cases (among others):

— A lawsuit challenging San Francisco’s denial of a record request under the city’s  sunshine ordinance, which contains an unusual provision restricting the city’s use of the attorney-client privilege for legal advice and opinions on compliance with open-government laws. FAC’s brief in the court of appeal, supporting the record request, argues that the sunshine ordinance should be given full effect. Grossman v. St. Croix, et al.

— An antitrust case brought by members of college football and basketball teams against the NCAA. The players’ claim that NCAA’s amateur-only rules, by preventing them from negotiating for a share of broadcast license fees, violate the federal Sherman Act. FAC’s amicus brief, urging a pre-trial appeal to the ninth circuit court of appeals, highlighted first amendment problems that would arise if networks broadcating NCAA games are forced to negotiate licenses with all players individually. In Re NCAA Student-Athlete Name & Likeness Licensing Litigation. 

—A libel suit against The Wrap, a Hollywood-focused, online news site. The amicus brief urges the CA Supreme Court to review the case in order to clarify that the state’s “retraction statute,” which limits the liability of publishers who correct factual mistakes, applies to digital publications as well as print publications. Thieriot v. The Wrap News, Inc.

—Enforcement of a CPRA request for emails of San Jose city officials, specifically including emails about government business that were sent from officials’ personal email accounts. FAC’s amicus brief to the CA Supreme Court urges judicial review to reverse an appeals court decision that the CPRA applies only to email in government-owned email accounts. City of San Jose v. Superior Court.

—Denial of press credentials for SCOTUSblog, a leading legal news website about the US Supreme Court. FAC joined a letter to the Senate Press Gallery urging adoption of more flexible and inclusive admission criteria and supporting reconsideration of credentials for SCOTUSblog.

—Federal FOIA suit concerning search fees—for which FOIA requesters are usually responsible, in contrast to CPRA requesters (who, in general, are responsible only for document copying fees). 1986 amendments to FOIA authorized agencies’ issuance of  “fee waivers” to various categories of requesters, including the “news media.” FAC joined an amicus brief to the DC circuit federal court of appeals urging a broad interpretation of the waiver to ensure maximum public access to government information. Cause of Action v. FTC

-PS

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