Article 1  (Text of the Amendment)
SEC. 3. (a) The people have the right to instruct their representatives, petition government for redress of grievances, and assemble freely to consult for the common good.

(b) (1) 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.

(2) 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.

(3) Nothing in this subdivision supersedes or modifies the right of privacy guaranteed by Section 1 or affects the construction of any statute, court rule, or other authority to the extent that it protects that right to privacy, including any statutory procedures governing discovery or disclosure of information concerning the official performance or professional qualifications of a peace officer.

(4) Nothing in this subdivision supersedes or modifies any provision of this Constitution, including the guarantees that a person may not be deprived of life, liberty, or property without due process of law, or denied equal protection of the laws, as provided in Section 7.

(5) This subdivision does not repeal or nullify, expressly or by implication, any constitutional or statutory exception to the right of access to public records or meetings of public bodies that is in effect on the effective date of this subdivision, including, but not limited to, any statute protecting the confidentiality of law enforcement and prosecution records.

(6) Nothing in this subdivision repeals, nullifies, supersedes, or modifies protections for the confidentiality of proceedings and records of the Legislature, the Members of the Legislature, and its employees, committees, and caucuses provided by Section 7 of Article IV, state law, or legislative rules adopted in furtherance of those provisions; nor does it affect the scope of permitted discovery in judicial or administrative proceedings regarding deliberations of the Legislature, the Members of the Legislature, and its employees, committees, and caucuses.

Analysis

Prop 59 does not explicitly create new access rights. Any substantive enhancement of access rights under Prop 59 will have to come about through litigation — and as of 2009 there had been no significant judicial interpretations at the appellate level.

Prop 59, however, does very clearly articulate rules of construction to be followed by government agencies, in their compliance with access laws, and by courts, in litigation over access issues. Legal authorities, presumably including court decisions issued before passage of Prop 59, are to be “broadly construed” if they further “the people’s right of access,” and “narrowly construed” if they limit access to government.

This is a potentially significant provision because it can be seen as instructing courts to, among other things, reconsider past decisions that unduly restrict public access. For example, in a suit against Governor Arnold Schwarzenegger for access to his aides’ meeting records, CFAC argued that courts should reconsider and overturn Times Mirror v. Superior Court, 53 Cal. 3d 1325; 813 P.2d 240; 283 Cal. Rptr. 893 (1991), in which the California Supreme sustained the withholding of such calendars. In a pretrial settlement, the Governor agreed to release the calendars.

Prop 59 can also be viewed as potentially plugging loopholes contained in access statutes. For example, while Prop 59 apparently retains the exemptions of the CPRA and Brown Act, it may create a new access right against the judiciary (for administrative, not adjudicative, records). CFAC is currently testing this theory in a lawsuit against Riverside County Superior Court. Press-Enterprise and CFAC v. Superior Court, Case No. RIC 444406 (Argento, J)