Fortunately, the California Legislature didn’t have a hand in crafting the federal Freedom of Information Act. If it had, the American people would have been denied the primary source material for a large chunk of recent American history.
Much of what we know about the major themes of US political history during the 35 years following World War II comes from the investigative files of the FBI.
From the anti-Communist witch hunts of the 40s and 50s, to the surveillance of Martin Luther King and other leaders of the early civil rights movement, to the infiltration by federal agents of the Vietnam anti-war movement, the Black Panthers and dozens more groupings of cultural and political dissenters on both the left and right.
This rich history exists because armies of journalists, historians and curious individuals, using the federal FOIA law, have requested FBI files on these matters—and they have gotten them. And thousands more individuals, exercising what has become something of a birthright of national citizenship, have requested their own FBI files–and gotten them.
Now, suppose that instead of the federal FOIA, these vital historical records were subject to California’s bastard version of that law, the California Public Records Act, with all the special interest exemptions and loopholes that, over the years, have been engrafted thereon.
If that were the case, none of these records ever would have seen the light of day.
Why? Because the CPRA infamously includes section 6254(f), which authorizes the denial of requests for “investigative” or “security files” “compiled by any state or local police agency.” Although there are exceptions for specific pieces of information (for example, name of person arrested, identities of witnesses, time and location of crime, etc.), the investigative records themselves are categorically unavailable to the public.
And even the specified pieces of information can be withheld in the case of CPRA requests for historical records–meaning any records that are not “contemporaneous.” Imagine if the FBI took the position, regularly invoked by police departments across California, that it could deny requests for FBI files about the 1960s and 1970s because the information is not “contemporaneous.”
My point is not that the federal FOIA is without flaws. Hardly! But even a seriously flawed federal FOIA opens wide a window that is firmly shut by California’s CPRA.
Who knows what public corruption and abuses of power might be found in Sacramento and across the state if journalists and historians could claim a right of access comparable to that afforded by FOIA?
Peter Scheer, a lawyer and journalist, is executive director of FAC. The views expressed here do not necessarily reflect the views of FAC’s Board of Directors.
What would it take to change CPRA? A constitutional amendment? There must
be a way to change it.
Certainly, the “contemporaneous” requirement poses a serious obstacle to historical research, but the CPRA has advantages over the FOIA, as well. One major one is that a public agency cannot respond to a CPRA request with a “Glomar” “neither admit nor deny” response. California has no equivalent to secrecy classification, which is another major FOIA obstacle. Nor does CPRA have an equivalent to the FOIA subdivision (c) exclusions, which allow a respondent agency to claim that responsive records positively do not exist, when the agency knows that they positively do exist, and thus to conceal the use of a particular exclusion. The CPRA, by contrast, always requires that the respondent agency admit the existence of sought records, and provide a “demonstration” that they are not subject to review, if it wishes their contents to remain concealed from the public. The CPRA is also (and this is procedurally a major advantage) not subject to the extensive administrative backlogs that dominate FOIA requests. (DOE – average wait = 1 year; CIA – my privacy act request took 2.5 years to get a (botched) response.) Lastly, the CPRA does not insert a toothless administrative review — usually interpreted as a simple repeat of the requested search — as a bar to court action.
Thanks, Peter. As one of the many, many authors of the California freedom of information law, passed when we had no such law at all, it is stimulating, at least to see you refer to it as a “bastard” law.
One of two founders of the California Freedom of Information Committee, which became CFAC two or three decades ago.
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