By Peter Scheer
One of California’s more remarkable political inventions is the requirement that lawmakers do their lawmaking in the open for all to see. Call it the people’s entitlement to democratic voyeurism: Members of city councils, county supervisors and school boards (among other local legislative bodies) must not only vote in public, they must confine virtually all debate, horse-trading and other deliberations to a public proceeding where voters get to watch.
The voyeurism entitlement is guaranteed by California’s Brown Act. Although taken for granted by voters, this right is a considerable—no, a radical–departure from traditional notions of American governance. After all, the Constitutional Convention, the mother of all American legislative proceedings held in Philadelphia in 1787, was conducted in secrecy. With the press excluded, the public learned only as much about the founding fathers’ deliberations as they wanted the public to know.
Consider also the U.S. Congress, where the public aspects of contemporary legislating consist, for the most part, of speeches to empty chambers, scripted “debates” to create phony legislative history, and votes that reflect deals previously struck behind closed doors. Despite its reputation for high-minded debate on great issues of the day, the modern Congress is more about secret earmarks and mutual back-scratching than it is about deliberations on matters of public interest.
California’s insistence on open decision-making is so contrary to politicians’ normal instincts that many local officials can’t quite believe the requirement applies to them. That’s why CFAC, together with the San Bernardino Sun, recently sued the chair of San Bernardino County’s board of supervisors.
Bill Postmus (now the county assessor) denied requests under the Public Records Act for emails between him and other supervisors, as well as his calendar of official meetings and appointments. Postmus says he doesn’t have to disclose records that might reflect his and his colleagues’ “deliberative process.” In this he relies on a 1991 Supreme Court decision, Times Mirror v. Superior Court, which affirmed former Governor George Deukmejian’s refusal to turn over his appointments calendar to the Los Angeles Times.
To be sure, the Court in the Times Mirror case ruled that the Governor’s “deliberative process” was outside the reach of the Public Records Act, and that the Governor enjoyed a privilege–the “deliberative process privilege”–to withhold records revealing his decision-making. But supervisor Postmus, his political ambitions notwithstanding, ain’t the Governor.
California’s chief executive, as the embodiment of state sovereignty, is entitled to a degree of deference that does not apply to lesser government officials. Even more important, the Governor’s office is not covered by the Brown Act (or its equivalent for state agencies, the Bagley-Keene Act) and its guarantee of the voyeurism entitlement: the public’s right to watch all the deliberations behind government decision-making.
The “deliberative process privilege” that the Supreme Court read into the Public Records Act has no relevance to a government entity, like a county board of supervisors, that is subject to the Brown Act. The Legislature could not have intended, as to the same government entities, to expose their deliberative process in the Brown Act, while simultaneously hiding their deliberative process in the Public Records Act. The Legislature may be dysfunctional, but it’s not schizophrenic.
The deliberative process privilege, so popular among government officials who prefer doing the public’s business in secret, is available only to those state and local government entities that are not regulated by the Brown Act. (And even those entities may no longer be able to cite the privilege due to passage of Prop 59 in 2004—but that’s a separate issue.) Entities that are regulated by the Brown Act already must abide by the voyeurism entitlement, conducting all their deliberations in the open. Since their deliberative process already is–or should be–public, requests for records showing their deliberative process may not be denied on those grounds.
Secrecy corrupts; absolute secrecy corrupts absolutely. Local government officials are always searching for a legal theory that will effectively exempt them from open-government requirements. Many, like San Bernardino’s Postmus, thought they had found their silver bullet against public record requests in the deliberative process privilege.
Wrong!
Peter Scheer, a lawyer and journalist, is executive director of CFAC.