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Prop 59 – Sunshine and Shadow: Commentary by Peter Scheer

Copyright 2005, Sacramento Bee

DONATE TO FACSunshine and shadow
State must operate in the open to maintain its accountability

By Peter Scheer — Special To The Bee

(Sacramento Bee 3/13/05) — What’s the governor doing? What’s the California Supreme Court doing? What, for that matter, is Michael Jackson doing?

The public’s right to know has a bearing on all of those questions. Access to the deliberations of government agencies and to government records and information is critical not just for journalists and lawyers but for citizens who want to hold government and public officials accountable. That access for the public is improving on at least one front in California while being thwarted on others. Here are highlights of how those tools for accountability are working lately:

The promise of Prop 59

Voters overwhelming approved Proposition 59, the “Sunshine Amendment” to the state constitution, in November’s election. Prop 59 reaffirms California’s public policy in favor of government openness and accountability, a proposition with which few people would disagree in the abstract – indeed, fewer than 20 percent of voters opposed the initiative.

Although Prop 59 has yet to be ruled on by the courts, Gov. Arnold Schwarzenegger clearly sensed a change in political expectations when he announced, to the surprise of just about everyone, that he would make public his calendar of appointments, reversing a longtime policy of gubernatorial secrecy that the California Supreme Court had endorsed.

Within weeks of Schwarzenegger’s announcement, every elected official holding statewide office, from Attorney General Bill Lockyer to the members of the state Board of Equalization, had also disclosed their calendars. Even Secretary of State Kevin Shelley, although occupied with other matters, made public his appointments calendar as one of his last acts before leaving office.

These officials were opting not to invoke the “deliberative process privilege,” an exception to public access requirements created by the Supreme Court in a 1991 decision involving records of former Gov. George Deukmejian. Although it remains to be seen whether, legally speaking, Prop 59 eliminated the deliberative process privilege, politically speaking the privilege is dead.

Just as candidates for governor or president must disclose to the public their tax returns, California’s elected officials will be disclosing their appointments calendars. Not because the law requires it, but because the voters, impatient with claims of special privilege, will require it.

These new political winds should blow even harder against local government officials who presume to assert the deliberative process privilege to deny requests for government records. A local official’s claim of privilege, in the face of the governor’s decision not to invoke the privilege, is the height of hubris.

At the end of the day, that new political reality – voters’ intolerance for grandiose claims of special privilege – may be Prop 59’s most important legacy.

Our secret judiciary

Despite the progress achieved by Prop 59, the public has lost ground on access rights in other battles. The state judiciary, for example, remains remarkably resistant to requests for access. Although the First Amendment in theory affords a right to court records and hearings, in reality judges routinely grant motions to gag lawyers and witnesses and to seal court records — even entire case dockets — with little regard for the public’s countervailing right to know.Think of the Michael Jackson trial: The judge, in his attempt to control all information about the case, cast a net of restrictions so big that it at one time gagged comedian Jay Leno (who nonetheless continued to include Jackson jokes, but through surrogate comedians on his show).

The court system is even more secretive when it comes to its administrative and policy-making functions. Last month the judiciary refused to open the doors to a gathering of more than 100 judges, administrators and legislators who were considering an overhaul of the court system, including changes to judges’ terms and to funding for local courts.

Also meeting in secrecy is a new Supreme Court advisory committee charged with reviewing the court’s controversial policy of “publishing” only selected decisions of the courts of appeal. (Litigants aren’t allowed to cite or discuss the many more opinions that are officially “unpublished.”) The advisory committee’s work on what gets published and what doesn’t is thought to be so sensitive, and the danger of public access believed to be so grave, that even the dates and locations of its meetings are confidential.

To be sure, judicial deliberations can’t be open to the public in the same way and to the same degree as the actions of a city council. Judges must confer in secrecy when discussing how to rule in a particular legal case. Even if they face election periodically, judges are not supposed to be politically accountable in the way city council members are.

But when courts act legislatively and administratively instead of judicially, their actions should be open to the public. There’s nothing about a bunch of judges sitting around discussing issues like judicial compensation or court budgets that requires secrecy.

Access vs. privacy

When it comes to open government and individual privacy, conflicts inevitably occur. The public’s right to know tends to suffer in these disputes. Lately, the view that privacy trumps access has a new chief proponent: public employee unions. It used to be the unions were allies in the struggle for access to government information. Apparently not anymore. In one recent case, the city of Oakland, yielding to pressure from unions representing police officers, departed from its past practice and policy of many years and denied a request for public records concerning the pay of employees earning more than $100,000 per year.

Because of the union pressure, the Contra Costa Times was forced to take the city to court to enforce the records request. The court agreed with the Times, ordering release of the salary information. Once the salary data became public, it was obvious why the union tried so hard to keep it under wraps.

The records showed that 34 percent of police and firefighters receive more than $100,000 a year because of overtime payments that are clearly out of control. These include the fire battalion chief, who took home $230,400 last year with a base salary of $128,300, and a police sergeant who earned $181,728 on a base salary of $91,225.

Even the police Web master, in a job that does not usually involve major security risks, was paid $187,386, including overtime. Try to match that salary -not to mention the Police Department’s generous pension and health benefits – in a private-sector job.

In another case, The Sacramento Bee requested city records concerning the suspension of firefighters for misdeeds such as drinking on duty, using fire engines as personal transport for trips to bars and an adult bookstore (to get a porn star’s signature) and for joy riding with girlfriends.

Before the city could comply with the newspaper’s public-records request, Local 522 of the firefighters union filed suit against Sacramento, requesting a preliminary injunction to block disclosure of the firefighters’ disciplinary records. At the end of December, Sacramento Superior Court Judge Thomas M. Cecil rejected the union’s argument that releasing the records would violate the firefighters’ privacy rights.

Unions have no legitimate business injecting themselves into other parties’ public-records requests. Agencies are supposed to decide requests under the Public Records Act on their merits: Do the records qualify for an exemption from disclosure or not? The agencies shouldn’t decide based on lobbying pressure from an outsider or a threat of litigation. Such interference should be grounds for reversing an agency’s denial of a request for records.

This isn’t to say that unions have no forum to complain about a request for information affecting its members. Unions, like other outsiders, can sue an agency, after its release of records, for damages caused by disclosure of information that they contend is confidential, privileged, proprietary or whatever.

But unions, like other outsiders, should not be allowed to preempt an agency’s release of records. Such action not only prevents the agency from exercising its discretion under the law but also hijacks a requester’s claim, forcing both parties to litigate when neither wants to.

Protecting confidential sources

Perhaps the most important battle in the access struggle is one thought to have been won long ago: the ability of the press to protect confidential sources.The issue is properly seen as a test of access rights: If the press cannot keep its confidential sources confidential, the public will be completely cut off from news on government corruption, national security matters or organized crime – the primary types of investigative reporting in which sources, for obvious reasons, will only speak on the condition that they remain anonymous.

At least nine reporters around the country have been held in contempt or face contempt charges for refusing to honor federal court subpoenas ordering them to disclose confidential sources. In the best known case, reporters at the New York Times and Time magazine face the imminent prospect of going to jail for refusing to reveal the sources – presumed to be Bush administration officials – of stories published in 2003 that exposed a CIA operative.

The laws in California and at least 20 other states provide considerable protection for reporters’ confidential sources. No such “shield” law applies to the federal government, however. Although a number of federal appeals courts had construed a 1972 Supreme Court decision as recognizing similar protections under the First Amendment, the more recent trend, culminating in a ruling last month by the federal appeals court in Washington, D.C., affirming contempt judgments against the reporters for the New York Times and Time, rejects that interpretation.

Congress is now considering at least four bills to create a federal shield law, comparable to California’s law, that would curb federal judges’ power to compel reporters to disclose their sources. If Congress fails to enact a federal shield law, reporters will go to jail for doing their jobs.

The public’s right to know is one of those rare issues that cuts across political lines, appealing to progressive Democrats and libertarian conservatives alike. As so often happens in Sacramento, however, this broad consensus in favor of government openness is easily defeated by organized and well-financed special interests. More “sunshine” is the best hope for the public to resist these encroachments and to achieve full accountability.

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