CalAware Today

Police Agencies and the Inquiring Public, Part 3

It's not hard for a law enforcement agency of any size to serve the public well by knowing and observing the basics of the California Public Records Act and treating inquiring citizens with dignity and respect. While many departments audited last month (with results released this week) seem to have mastered those essentials, a disturbing minority showed performance so far below these norms that they almost seem contemptuous of them.

A few of the best-intentioned departments took CalAware up on its offer of free training in the past few months, and for these sessions we developed a model policy statement, (legally annotated version free on request) designed to serve three purposes:
    • putting the chief or sheriff on the record as stating the guidelines and procedures the department will follow to assure prompt, courteous and meaningful responses to information requests;
    • providing a posted and leafleted briefing on what to expect, addressed directly to the the public; and
    • providing a clear and concise training reference for department employees dealing with information requests.

While departments sending staff to our training sessions seemed to find the experience positive and helpful,  at least one law enforcement professional organization discouraged its members from participating. It's easy to convince departments not to trust an organization like ours that has the gall to test their legal and professional performance, assign a grade to the results, and publish it all. But we know enough now about those doing the best job at sharing information with ordinary citizens to suggest that there is no shortage of training exemplars in the law enforcement community itself. If there is some way that the best performers could help brief and bring along the rest, one could not ask for a better solution.

Meanwhile, departments assuming that they can charge citizens far more than the direct cost of duplication for copies of crime and accident reports, tapes and photographs need to stop simply taking consultants’ recommendations for these inflated fee levels and instead consult their legal counsel. A class action lawsuit to recover years of fee overcharges could be extremely costly.

Police Agencies and the Inquiring Public, Part 2

Yesterday I reported the first three of four overall lessons from CalAware’s audits of law enforcement agencies’ compliance with the California Public Records Act.  Those conclusions were that    
    • too many police and sheriff’s departments, contrary to law, demanded identification and a statement of purpose before disclosing to non-journalists basic information about particular recent crimes;
    • too many departments in any event say that non-journalists cannot get information from a crime report unless they are the victim—again, a view contrary to law; but that
    • our recent second audit showed improved performance overall, and some top grades in smaller community departments, with larger departments often still challenged.

Our final observation deals with a glaring anomaly, but one that seems to be corrected in many cases as soon as the department’s legal advisor becomes aware of the practice.

Overcharging the Victim


Those involved in a traffic accident or victimized by a crime have but one source for the official record confirming their experience to supply to an insurance company or the state’s crime victims restitution fund. There is no alternative supply of such documents if they do not purchase them from the department that investigated the accident or crime. Moreover, the great majority of such unfortunate persons will probably need such records only once, and have little or no incentive to question the amount charged to obtain them.

Accordingly, the second audit found numerous examples of departments requiring such requesters to pay a fee for crime or accident reports far beyond what the law allows as the “direct cost of duplication.” The most accommodating policy found was to charge crime and accident victims nothing at all, such as in Davis, Santa Rosa, Carlsbad, Galt, Glendora (for the first five pages), Santa Clara Sheriff (for the first 50 pages), and Sacramento (for the first 49 pages).

The lawful and still citizen-friendly policy—to charge the same low per page fee to all requesters for all records copies—is the standard for departments like Coronado, Campbell (5 cents), Dublin, Berkeley, Contra Costa Sheriff, Piedmont, Pleasanton (10 cents), Beverly Hills (20 cents), Banning, Redding, South San Francisco and Brentwood (25 cents).

Beyond these simple and reasonable standards is a wide variation of approaches, many of which set a price on crime and accident reports very far beyond what could possibly be a recovery of the direct cost of duplication per page. A sampling of these rates:

Department                Per page charge for         Crime report fee        Accident report fee
                                      records generally      
Mountain View PD            25 cents                            $16                                $16
Palo Alto PD                        12 cents                            $10                                $10
San Diego PD                        25 cents                            $12                                $12
Los Gatos PD                        50 cents                            $20                                $20
Whittier PD                          10 cents                            $11                                $11
San Bernardino PD             15 cents                            $10                                $15
San Diego Sheriff                25 cents                            $15                                $20
San Jose PD                          20 cents                            $15                                $15
Los Angeles Sheriff            3 cents                               $12                                $12
CHP                                       30 cents                             $10                                $10

Considering the number of audited departments that provided no (or incomplete) information on their fees, local news organizations or citizens interested in their departments’ pricing policies should check the audit spreadsheet or inquire themselves. 



An even more striking set of high charges, apparently well beyond direct duplication costs (considering the economies of high-speed tape dubbing and digital photography), appeared in the amounts charged for copies of videotapes, audiotapes and photographs. One explanation may be that the typical requesters for these kinds of record are attorneys who can pass the cost on to their clients, who in turn may have little inclination to challenge these fees.
 A sampling of these rates:


Department                        Videotape copy            Audiotape Copy            Photograph

Davis PD                                        $65                          $30/30 minutes                   $20
Brentwood PD                               $45                                    $45                              $33
Newark PD                                     $60                                    $60                              $22
Pacifica PD                                     $40                                   $40                               $10
Palo Alto PD                                  $64                                    $64                              $35
Antioch PD                                     $35                                   $35                               $35
Livermore PD                                $63                                    $41                               $45
Concord PD                                   $42                                    $107                      $11.50/disk
Los Gatos PD                                 $48                                    $48                        $48/first 3
Beverly Hills PD                           $120                                  $70                        $1.10-$5.70
Manhattan Beach PD                   $135                                  $135                            $26.50
San Bruno PD                                $63                                    $63                               $39
Santa Monica PD                          $69                                    $13                               $59

Again, considering the number of audited departments that provided no or incomplete information on their rates, local news organizations or citizens interested in their departments’ pricing policies should check the audit spreadsheet or inquire themselves. 



Police Agencies and the Inquiring Public, Part 1

If you can imagine yourself, as a non-journalist Californian, wanting to know more about what really happened in the rumored break-in near your workplace or the apparent arrest down the street last night, be prepared for some resistance if you call up or stop in at the police or sheriff’s department and ask for the basic facts.

The news media get a certain feed of these who-what-where-when specifics, and the victims of crime can get copies of the police reports that more thoroughly record the incident.  But in far too many communities, as an uninvolved, non-media third party, you may be required to state your name and purpose for even asking—and then get little or no information in return.

How do we know this?  A significant sampling of local law enforcement agencies that CalAware has organized over the past year leaves us with this sobering conclusion.  These agencies shouldn’t behave this way, but too often they do, as documented in walk-in audits done first last December and again in mid-October.

Full details including department names, itemized queries and responses, numerical scores, letter grades, and a narrative report of each auditor’s visit are available for both the first and second audits—the latter reported this week by participating news organizations (and some non-articipants) such as KGTV 10News in San Diego, the North County Times in Oceanside, the San Bernardino Sun, the Redding Record Searchlight, the Half Moon Bay Review, The Reporter in Vacaville, the San Jose Mercury News, KGO-TV in San Francisco, the Palo Alto Weekly and the Berkeley Daily Californian.
.
But today and tomorrow I’ll summarize the four main impressions gained over the two audits.

1. Small Is Dutiful

Generally speaking the smaller departments seemed to perform notably better than the largest. Police departments with 200 points or more (combining their legal compliance and customer service performance) were those in the cities of Banning, Coronado, Half Moon Bay, Lincoln, Rocklin and Santa Rosa. Only a few points below were Brentwood, Campbell, Davis and Redding. The biggest department with a score in this high range was the Contra Costa County Sheriff. Otherwise, some of the largest departments did not have impressive composite scores: Los Angeles County Sheriff (125 out of a possible 210), Riverside Police Department (126), San Diego County Sheriff (Vista and San Marcos stations—125), and San Francisco Police Department (110). One explanation might be that the smallest departments have much less crime to deal with, but then their records staff would normally be much smaller as well. At any rate, it is clear that a department need not be huge or even of medium size to do a first rate job in comp lying with the public records law and dealing with information requests courteously, professionally and promptly. On the contrary, departments toward the large end of the spectrum often have the farthest to go in meeting these standards. 



2. A Distrusted Public 

About half the departments audited demanded to know the auditor’s name, affiliation or purpose for requesting the information, or some combination of these disclosures. Making these revelations a condition for obtaining the kind of information requested here violates the Public Records Act. Departments can ask the purpose of the request in order to help the requester, but cannot insist on knowing. And yet that point either has not been included in many departments’ training or has been allowed to be forgotten. The result often unmistakably conveys distrust to the requester and may intimidate pursuit of the inquiry altogether. This “Who wants to know?” response is justified by some as necessary to keep criminals from getting information that could threaten someone harm or frustrate the successful completion of an investigation. But the Legislature’s solution for that concern is to allow departments to withhold certain otherwise public information based on either or both of those rationales, depending on the facts of the particular case. And in such rare instances the denial of access must extend to all requesters, including the press, and must not depend on the requester’s identity, affiliation or purpose. The Legislature has pre-defined the level of information all citizens are presumed to have a right to, and they have the right to remain silent about who they are and what they mean to do with the information. 



3. The Nosy Neighbor Myth 

By far most of the departments that refused to disclose any information to the requester who walked in and asked to learn more about a particular burglary (23 percent of those audited) did so on the mistaken belief that only victims are entitled to any substantial information at all about crimes—that others have no need to know and thus no right to know. This attitude is perfectly reflected in the following excerpt from a July 19, 2007 story in the Inland Valley Daily Bulletin:

Dorothy McKnight was concerned about the effects a Wal-Mart Superstore would have on her neighborhood and wanted to know the number of traffic collisions near the proposed site.                     McKnight, an Ontario resident, said she believed the streets around Mountain Avenue and Fifth Street were already prone to collisions and the store would exacerbate the problem. She said this week she called the Ontario police station for that information but was told it was private.
    McKnight said after she clarified she only wanted the number of collisions—not details about the parties involved—she was told she had to first fill out a form at the station.
    When she reviewed the form, though, McKnight said she was uneasy with the questions it posed, such as, why she wanted the information—so she hesitated.
    Police Officer Anthony Ortiz said citizens have a right to traffic and crime statistics. More information is not guaranteed, though, he said. If you're a victim or a party involved, you get all the names, details, etc.," Ortiz said. "But if you're just being a nosy neighbor down the street, you're out of luck."

True enough—you’re always out of luck with a law enforcement agency that doesn’t know the law.

Public Forum Law Week in Review: 11/18/07

(CalAware Weekly comprises this plus the previous two posts)



Free Speech


March on Your Own     The nongovernmental organizers of a Veterans Day parade in Long Beach excluded an antiwar vets’ group from its ranks.

The Stamp Act    Students at Fresno City College complain that they have to get an official stamp of approval on leaflets to be distributed on campus.

Records Released Reveal . . .


State officials’ explanations about aircraft unavailable to fight the Southern California wildfires did not always match the facts; how Pasadena City Council members use e-mail sent to and from their new city-bought computers during council meetings.

Open Meetings
   

Browse council from home    Union City residents (or anyone else who cares) will soon be able to get a live webcast of city council and planning commission meetings, or search an archive and play the video of a past meeting.

Public Information

The taxpayers’ tab        San Bernardino County Supervisors sometimes refuse to disclose whom they met for meals and drinks charged to their county credit cards, or why. More.

Gone with the draft        After prodding the Gilroy City Council approved release of the most recent drafts of a consultant’s report on police services—but two earlier drafts have disappeared.

Covering Candidates' Paper Trails

Hillary Clinton’s White House experience is documented in her husband’s presidential papers, which they claim are at the mercy of the National Archives to release from his Presidential Library—and then only on the archivists’ schedule, which they insist they can’t accelerate.

Whatever the Church Lady might make of those protestations—Barack Obama, as quoted in the Chicago Tribune, and Judicial Watch in two federal court lawsuits, for example, are skeptical—the fact remains that the automatic filter that the presidential papers archiving process puts on the official record of those running for office is a problem that needs correcting, and it’s mirrored in a California law that needs equal attention but may never get it.

There are actually two potential barriers to access to ex-presidents’ papers by political researchers, journalists or more impatient historians. The first is an Act of Congress—actually a succession of them—and the second is an executive order issued by President George W. Bush early in his first term.

Under the original provisions of the Presidential Libraries Act, ex-presidents would build their own libraries with privately donated funds and then voluntarily turn over those buildings—and the bulk of the White House records the ex-presidents had generated and taken with them—to the National Archives.

But, as explained in an essay marking the 1955 law’s 50th birthday, there have been some imperfectly resolved issues surrounding the fundamental question of who owns presidential papers—the former chief executive or the American people.  After the crisis in which former President Nixon declined to donate his papers to federal custody, President Jimmy Carter signed into law the Presidential Records Act of 1978.

This act declared that, starting with the next presidential administration, the official papers of the presidency would automatically become government property, would be transferred to the National Archives at the end of the administration, and would be subject to public request and disclosure five years after the end of the administration. A President would still have to utilize the Presidential Libraries Act if he wanted to build or donate a library to house the presidential records, which all Presidents have continued to do.
    The 1978 act, however, requires that the National Archives follow special procedures to allow both the former and incumbent Presidents to review the records before they are released to the public. These procedures, which were revised in 2001 under Executive Order 13233, ensure that the former President has a full opportunity, as required by the Supreme Court, to assert possible claims of executive privilege.

A federal judge has recently held invalid that portion of the order that allowed former presidents and vice presidents to review their records sought from the Archives under the Freedom of Information Act.  Meanwhile an effort in Congress to legislatively undo the order is hung up in the Senate by a hold placed by a single Senator who will not state his reasons for the obstruction.

In California, an exemption from disclosure under the California Public Records Act allows ex-governors to bar public access to their papers, transferred to the State Archives, an institution under the administration of the Secretary of State, for the rest of their lives. Government Code Section 6268 states that the records of a former governor—even a recalled one—must be transferred to the Archives, but that he or she, acting in writing, “may restrict public access to any of the transferred public records, or any other writings he or she may transfer, which have not already been made accessible to the public,” but access “shall not be restricted for a period greater than 50 years or the death of the Governor, whichever is later,” and papers concerning applications for clemency or extradition can be withheld for only (!) 25 years after the cases are closed.

Accordingly, for example, if either Gray Davis or Arnold Schwarzenegger were to again seek some public office, he could instruct the State Archives keep the official papers of his administration out of the public’s reach. Davis may have already done so, whether or not he contemplates resuming public life.

Section 6268 is bad policy, creating a post-executive privilege to plough under one’s record at the very time when it may be of the greatest significance to the greatest number of people.  As such, it is a perk ripe for reconsideration, but is unlikely to be repealed so long as a governor has enough legislative support for an override-proof veto.

Classifying the Phone Book

Sometimes it’s hard to tell whether most proposals to make speech or open government practices illegal are just silly or actually sinister.  Is the gag reflex—that is, the reflex to gag someone else—the product of a photophobic anxiety that is well-meaning but misinformed about the law, the facts or both—“If this gets out the sky will fall”? Or is it the result of a deliberate attempt to suppress information or even curiosity about embarrassing if not incriminating anomalies or arrangements— “If this gets out the game is up”?

(To find out, it would be helpful to embed source taggants into all legislation so that the actual authors of each  element of a bill could be traced back and identified for purposes of credit or otherwise, answering the question we so often have, especially with Congressional output, “Who put that in the bill?”  If taggant seeding is worth requiring in order to ease finding out who purchased certain ammunition or explosives, it’s certainly worth doing to discover the parent of would-be or actual laws with much wider and more continuing destructive potential.)

In any event, a prime example of an idea that’s at least silly if not sinister is a provision in the Senate version of the pending omnibus Farm Bill that would create civil and criminal penalties for the disclosure of information gathered in the U.S. Department of Agriculture’s developing National Animal Identification System (NAIS).

NAIS is USDA’s work-in-progress technical response to the nation’s limited experience with Bovine Spongiform Encephalopathy—“mad cow disease”—and the challenge of tracing the origin of sick animals to allow effective meat recalls and other public health measures.

A year ago one of the secrecy issues surrounding this regulation was addressed with Governor Schwarzenegger’s signature of SB 611 (Speier) which, as described by Consumers Union at the time,

allows California public health officers to notify the public of the names of retailers that receive USDA-recalled meat and poultry, so that consumers can better protect themselves from food-borne illnesses.
    In 2002, California’s Department of Health Services (DHS) signed a secrecy agreement with USDA, agreeing not to release the names of the stores and restaurants where tainted, USDA-recalled beef and poultry have been shipped and sold. Federal and California state agencies maintain that secrecy is necessary in order to protect the proprietary interests of the beef and poultry industries. But eighty percent of Californians believe that the public should be told the names of retail stores and restaurants that receive and sell potentially contaminated, USDA-recalled beef and poultry, according to a 2006 Field Research Corporation survey.

As for the current Farm Bill proposal, there are two serious problems.  The first is that how it’s handled—simply creating liability for the disclosure of government-held information without expressly making the information exempt from disclosure under the Freedom of Information Act—runs contrary to another pending major FOIA reform bill. The OPEN Government Act of 2007,  which the Senate passed in early August, says that when a bill would make information exempt from FOIA it should say just that and put the public on notice of the erosion.

The second problem is the overkill.  By penalizing any disclosure of any NAIS information other than by the Secretary of Agriculture to certain other officials or agencies for certain official purposes, the language would go “way beyond most existing law in imposing disproportionately harsh penalties for press activities protected by the First Amendment of the U.S. Constitution.”

Those words are from a letter protesting the secrecy provision sent to Senators by OpenTheGovernment.org and signed by Californians Aware and 27 other, mostly national, public interest and journalism organizations.

A major backer of the proposed secrecy is the National Cattlemen’s Beef Association—the trade group that tried to sue Oprah for product libel for raising mad cow concerns about the nation’s beef supply on her show.

The silly element is a different kind of overkill.  As pointed out in an e-mail by Mary Louise Zanoni, an upstate New York lawyer and leading critic of USDA’s animal tracking plans as a whole, the department currently has no sensitive information in its database, only voluntarily submitted contact information.

There are three potential data collections related to NAIS, but only one is a government database.
     1.  The government database is the National Premises Information Repository, and that is the database that, by USDA's own admission, contains only "phone book" information namely, a business name, contact person’s name, address, and phone number.
     The other two potential databases are both private databases:
     2.   Lists of individual animal ID tags assigned to particular livestock owners, which will be maintained by the companies selling the tags; and
     3.  "Animal tracking databases," which, like the tag databases,  will be created and maintained by private companies (these databases will store livestock owner's reports of movements or sales, etc., of individual livestock).
     Note that the whole federal system is voluntary.  . . But under the way NAIS is set up, the fact that the records in databases nos. 2 and 3 above are in private hands would mean that those databases are not subject to FOIA requests anyhow. . .
      So there is no reason at all to give a FOIA exemption to basic contact info, and in fact giving such an exemption would overturn well established FOIA caselaw and thus be a very bad development in the history of open government in the United States. 

Ms. Zanoni’s phone book analogy is apt, and a good illustration of the silliness dimension too often found in secrecy policy.  While the intelligence official who suggested the other day that the 9/11 era makes anonymity from government awareness an outmoded luxury staked out one dubious extreme, to say that basic directory information about a category of business is such that only government may use it probably represents the other equally dubious extreme. A federally maintained list of cattle ranches—and an opt-in list at that—is neither the first step on the road to fascism nor a data file too sensitive to let the public see.

Public Forum Law Week in Review: 11/11/07

(CalAware Weekly comprises this plus the previous two posts)



Open/Secret Government 
 

Stem cell agency at 3    On its third birthday, says an observer, the California Institute for Regenerative Medicine’s penchant for closed-door grant reviews and secrecy still screens much of the institute's most important decisions from public view.

CSU Foundation’s perk loans    California State University President Alexander Gonzalez got generous loans from a campus-related foundation that insists it’s a private corporation and won’t disclose where the money came from.

A cloudy sunshine record          An Associated Press report shows Governor Schwarzenegger opposing open government reform as often as not despite his campaign pledge for transparency.

Free Press

Latex limit    The editors of California State University, Fullerton’s Daily Titan are upset because the university will not allow them to distribute condoms in the November 14 issue. 
   

Free Speech
 

Muzzling cops    Police watchdog Mary Shelton of Riverside is among those quoted in a Reason magazine story on the special problems that may arise when law enforcement officers sound off online.

Gagging students    A federal magistrate finds unconstitutional the use of a campus speech code to pursue students who stomped on a Muslim flag during a demonstration.    

Records Released Reveal . . .


Who said what to UC Irvine Chancellor Michael Drake to get him to rescind—or then renew—his invitation to a “controversial” constitutional scholar to head the campus’s new law school; the San Francisco Mayor Gavin Newsom’s plan to offer a power plant funds and help to find a new location.

Open Meetings
   

No need for comment    The Santa Clara County DA finds no Brown Act violation in the denial of public comment on a matter that had been dealt with at two prior Los Gatos Planning Commission meetings.

An “innocent” violation       The Riverside County DA finds that an e-mail discussion among three of county supervisors was not a deliberate breach of the Brown Act and was cured by a later open discussion.

Open Courts

Sealed justice study    UCLA Law School and the Rand Corporation have launched a joint venture to study secrecy in the nation's civil justice system.

Secret evidence    Prosecutors will be permitted to secretly present certain recorded surveillance data to a jury in the forthcoming trial of two former officials of the American Israel Public Affairs Committee (AIPAC) who are accused of leaking classified information.   

Smacking the Hornets’ Nest

Thirty-one years ago Don Bolles, an investigative reporter for the Arizona Republic, was fatally injured when a bomb exploded under his car outside a Phoenix hotel where he had been lured to meet a nonexistent source.  Before dying in the hospital 11 days later, minus both legs and an arm, he said the word “mafia” and named the man who later pleaded guilty to planting the remote control explosive.

Two other relatively small-time figures served long prison terms for their roles in the killing, but the powerful figure unofficially suspected as the one who ordered the hit was at the time Arizona’s wealthiest man. Possessed of a name right out of James Ellroy—Kemper Marley——this billionaire rancher, real estate tycoon and wholesale liquor distributor had rumored ties to organized crime as well as many of the public officials for sale or rent in the state through the latter half of the 20th century. Bolles’ stories about Marley led to his resignation from his recently appointed seat on the state racing commission, a fact which police and prosecutors saw as a plausible motive for revenge. But he was not charged in the case.

In fact the most conspicuous public allegation of Marley’s connection to Bolles’ death came from journalists rallied by the recently formed Investigative Reporters & Editors (IRE) to swarm into the state from all over and start digging into the deep background of the case.  Marley sued them for libel in 1981; a jury awarded damages of $15,000 for emotional distress.

But the extraordinary fact was the Arizona Project itself, as the IRE team called it, and its unprecedented and intensive immigration and collaboration among reporters, editors and others bent on seeing to it that Bolles’ death was not the end but the beginning of a wide-ranging expose of Arizona’s network of corruption. Swat one of us down, went the message, and stand by to deal with the hive.

The legacy of the Arizona Project is at this date mixed.  The full story from IRE’s perspective is here  (disappointingly, the archived reports on the power relationships of the “Phoenix 40” have broken links) but its work was attacked immediately by locals (like Senator Barry Goldwater) as “pack” or “vigilante” journalism; the New York Times and Washington Post declined to lend people to the effort; and Bolles’ own employer, the Arizona Republic, declined to print the reports.  A 2006 retrospective concludes that the project did not have the long-term reform effect its authors had hoped.

But meanwhile, just as there had been nothing like the Arizona Project before, there has been nothing like it since.  But that’s because, with the exception of the 1984 murder of a Chinese American writer ordered by a Taiwanese intelligence official, no one has put a hit on an American journalist on American soil since then. 

Until three months ago, that is, when Chauncey Bailey, Jr., 48, was shotgun-assassinated one morning on an Oakland sidewalk on his way to work. The 37-year veteran of print and broadcast journalism was the editor-in-chief of the five-city San Francisco Bay Area Post, northern California’s largest African-American weekly. His 19-year-old confessed killer, who calmly walked away to a waiting van that day, was an employee of Your Black Muslim Bakery, which Bailey had been investigating for a major story, and which police targeted with a massive raid several days later.   

The local bakery chain, founded in 1968 and developed as a hopeful example of Black entrepreneurship and community self-help, had come on hard times since the death of its founder, Yusuf Bey, in 2003. The police raid was prompted by an official investigation into suspicions that the bakery company had become a front for a fraudulent and increasingly violent criminal enterprise, and that investigation continues.

But Bailey’s colleagues are not leaving it to the police to trace and expose the criminal forces that at least indirectly were responsible for his death.  The Northern California chapter of the Society of Professional Journalists has announced formation of a Chauncey Bailey Project to unite a team of more than two dozen reporters, editors, and photographers drawn from Bay Area print, broadcast and online media to continue and expand Bailey’s inquiry into what the announcement called “the past and current activities surrounding the Bey family empire, which operates the Bakery, and their activities over the past two decades.” 

The project will also draw on the resources of IRE, the Bay Area Black Journalists Association; Bay Area News Group; the San Francisco-based Center for Investigative Reporting, the Oakland-based Maynard Institute for Journalism Education, the National Association of Black Journalists, New America Media, New Voices in Independent Journalism, the journalism departments at San Francisco State and San Jose State Universities, and the Graduate School of Journalism of UC Berkeley.

The project is supported by a $20,000 grant from the Sigma Delta Chi Foundation of the national Society of Professional Journalists, to pay for records and travel expenses and stipends for student interns as well as development of a website to report the findings.  Unlike the Arizona Project this enterprise will be run by local journalists, and has the advantage of vindicating the work of a well-known media personality (Don Bolles was a relatively minor figure at the time of his death) and, above all, of focusing on an organization whose most menacing leaders are already in custody.  Before the police raid on the bakery and the arrests, Bailey’s publisher was so nervous about his planned disclosures that he held them back.

Closed Party Caucuses at City Hall?

In Saturday’s Ventura County Star Tony Biasotti and Timm Herdt reported on the increasing influence of party politics on local government elected offices that for almost a century have been formally nonpartisan by law.  Taking races and personalities in Ventura County as examples, they pointed out what most local politicians and activists probably already know:

Both Republicans and Democrats are pushing for more control over school boards, city councils, and other local races that are officially classified as nonpartisan. It's a top priority for leaders of both parties at the county and the state level.

The key control factor is money. Whoever gets a party central committee endorsement gets party financial support for the campaign, and that’s especially critical for the majority of first-timers who have neither a highly familiar name nor the personal fortune to create one fast.  Why are the parties more intent than ever in developing farm teams of talent for possible higher office? The authors point to the explanation given by Mike Osborn, who heads the Ventura Republican Central Committee.

Getting candidates elected to local office is always a top priority for either party, Obsorn said. With term limits forcing Sacramento legislators out of office after six years in the Assembly and eight years in the Senate, there's a constant need for fresh talent.
    "If there weren't term limits, you wouldn't have anywhere near the interest in local elections that you do now," he said.

In other words, a textbook example of the unintended consequences of political reform: the hydraulic pressure for new blood at the top perturbs local politics with all the dignity and disinterested  devotion to the public interest of the Sacramento scene. And accelerating this churn is a recently signed bill to take effect in January, AB 1430, which got very heavy and bipartisan support in both Assembly and Senate, was widely supported by business interests and unions alike, and was opposed only by four good government advocates, one city ethics commission and one city councilman, plus some editorials like this one in the Sacramento Bee.

In cities where limits have been enacted on how much can be given to local office candidates by individual donors, the money is simply given to parties or labor unions, with instructions on which candidates to boost in messages to members.  When that practice recently showed signs of being headed for restriction, AB 1430 was the result, and public awareness of who’s spending what on whom also suffered. 

Here’s how the Bee editorial put it.

Consider the impact of this bill on Los Angeles, one city that has passed its own campaign finance ordinances.
    Los Angeles prohibits groups and individuals from giving more than $500 to City Council candidates and $1,000 to mayoral candidates. For years, special interests have sidestepped these limits by contributing directly to the parties, which then bombards registered voters with advertising touting one candidate or another.
    After billionaires Eli Broad and Ron Burkle tried to use these methods to elect Antonio Villaraigosa mayor in 2001, Los Angeles toughened its law by requiring political parties, unions and others to disclose within a day if they spent $1,000 or more on "member political communications," such as a mailer to support a candidate.
    AB 1430, by Assemblyman Martin Garrick, R-Solano Beach, would block such disclosure requirements, preventing voters from learning which groups are bankrolling local campaigns. Garrick, who says he introduced the bill to enhance "free speech," apparently did so to head off a San Diego campaign disclosure proposal.

But there’s another transparency issue on the horizon as well.  What happens when the majority of a city council or school board is officially and unabashedly Democrat or Republican and the pressure builds to issue partisan instructions on a particular proposal (or resistance to it)?  The Ventura piece quotes Tim Hodson, director of the Center for California Studies at CSU Sacramento, as commenting that voters in the past favored nonpartisan local elections because there’s no Democrat or Republican position on building a bridge, for example.  But another observer insists that that’s oversimplified, or at least outdated; there may be a very partisan difference of opinion “on where the bridge is built, how it's paid for, and whether it has a carpool lane.”

In the Legislature, reaching and enforcing a party line requires caucuses, and caucuses take place in meetings that the state constitution permits behind closed doors, as an exception to the general open session rule.  The closed caucus, in fact, is the main feature distinguishing how policy-making meetings happen in Sacramento and at city hall or the school district office. 

Closed caucuses are utterly alien to the principles underlying the Brown Act, whose preamble expressly emphasizes citizen control of local government through transparency. 

The people of this State do not yield their sovereignty to the agencies which serve them.  The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know.  The people insist on remaining informed so that they may retain control over the instruments they have created.

But how long will it take before the normally diverse, even adverse forces and factions that united in supporting AB 1430 decide that their ability to control local government is too awkward in the sunshine?

After all, closed (or actually secret, unannounced) caucuses could be so helpful to the "deliberative process" of a party- or union-pledged majority in exploring, deciding and enforcing the correct common line on environmental or growth-sensitive questions, what the firefighters’ union should get in bargaining, what tax or regulatory concessions should be extended to that coveted developer, or what the politically acceptable doctrine should be in the high school courses on biology or American history.

If that practice were to become common enough, how long would it be before a Sacramento legislative majority—most of which came from the local partisan talent pool—decided to codify and legitimize it by amending the Brown Act expressly to authorize party caucuses for city councils, county supervisors, school boards and other public bodies on the local scene?

Public Forum Law Week in Review: 11/2/07

(CalAware Weekly comprises this plus the previous three posts)

Free Press
    Gag denied   A judge has again denied a public employee union’s bid to stop the Daily News in Los Angeles from publishing members’ names, positions and salaries in a lookup database on its website.
    Police clashes   Law enforcement officers blocked news media coverage in several incidents in the San Diego wildfires, according to a report by the local ACLU; a San Diego Police Department spokesman responded that the police have the authority to protect evacuees from unwanted press interviews.
    Offending column   The Benicia Herald, a daily newspaper, has fired its editor for a political column he wrote that upset two heavily advertising candidates in next week’s city election.
    Shield veto threat   The White House is threatening to veto the federal shield law bill, H.R. 2102, if Congress passes it, which USA Today predicts is likely.

Free Speech
    Flame retardant   Statements posted to a website on homeowner association issues attacking an attorney’s professional integrity were merely “a private campaign of vilification” and not a matter of public concern meriting anti-SLAPP protection, ruled the Court of Appeal in an unpublished decision.

Open/Secret Government
    Paper trace   Senator Jim Bunning (R-KY) has put a hold on a bipartisan bill to reverse President Bush’s 2001 executive order giving presidents and former presidents more power to halt indefinitely the release of their White House records. The House-originating measure is authored by California’s Henry Waxman.  Meanwhile candidate Hillary Clinton, asked about releasing her husband’s papers, stayed true to message and said they’ll be available after being processed.
    Pumping irony   Contra Costa Times columnist Tom Peele’s reaction to Governor Schwarzenegger’s boast, in vetoing AB 1393, that “My administration's commitment to the public records act is unwavering"—“Really? Does the governor actually believe the things his staff writes in his name?” Meanwhile Schwarzenegger’s office has told the Daily Journal in Los Angeles (sorry for the link lack—its website is subscription only) that it will not identify those whom it consults for recommendations on the appointment of judges, although it has said it would release the names to the Assembly—by January.
    Land deal secrets   The Legislative Analyst’s Office has concluded after two years of research that the Department of Fish and Game and other California state agencies “keep too many documents secret when they buy land and do not have consistent standards to ensure the public is paying reasonable prices,” reports the San Jose Mercury News.

Public Information
    Day labor employers   The California Newspaper Publishers Association, the Los Angeles Times and the San Diego Union-Tribune have appealed a judge’s ruling barring the City of Vista from disclosing a list of those who have registered as an employer of day laborers.  The ACLU obtained a temporary restraining order in September against release of the names to protect the employers’ privacy.

Records Released Reveal . . .
A city official denied pension credit for time she never worked; an admired police chief’s retirement marred by an issue of possible pension-spiking; a legal aide to the Insurance Commissioner secretly helped regulated companies in their lawsuit against his boss; Long Beach subsidies for a summer Sea Festival run by a private association were wasted, according to an online news site.

Open Meetings
    A Fate Worse Than Indictment?  The Orange County DA won’t prosecute four members of the Capistrano Unified School Board who accepted his report that over a six-month period they discussed business unlawfully in closed session and otherwise violated the open meeting law dozens of times. But wait—OC Weekly reports that the county Republican Central Committee “did something unprecedented by unanimously voting to call for the resignations of four of its own elected officials who sit on the Capistrano Unified School District Board.”

Whistleblowers
    Dummy up!   The Bush administration isn’t the first to punish insiders who go public  with inconvenient facts.  But, James Sandler tells Salon, it’s the most ferocious in resisting Congressional efforts to protect them.