CalAware Today

Public Forum Law Week in Review: 5/9/08

(CalAware Weekly comprises this plus the three previous posts)

Free Press

Public Defender Defends Subpoena to Newspaper     
Writing in the Santa Barbara Independent, County Public Defender Gregory C. Paraskou insists that his deputy’s subpoena to the Independent for unpublished photographs for possible use as defense evidence in a murder case should not have been compared in a column as akin to the Bush Administration’s incursion into rights protected by the First Amendment.

Open Government

E-mail Expert Calls for Special Prosecutor     
Zatz Publishing, producer of special-interest online magazines and books for technical consumers and information technology professionals, has announced the publication of its latest special report on the White House e-mail controversy: “It's Time for a Special Prosecutor.”  Authored by David Gewirtz, ZATZ editor-in-chief and the author of Where Have All The Emails Gone?,  this latest report spotlights what it calls “the increasingly apparent examples of massive negligence within the White House Office of the Chief Information Officer, this time resulting in evidence that the White House has irrevocably broken at least two key federal laws: the Presidential Records Act and the Federal Records Act.” 

Public Information

Transparency Activist Challenges Fund Decision
The Daily Bulletin in Ontario reports that open-government advocate Richard McKee—president emeritus of Californians Aware—has requested public documents from Los Angeles County administrators, citing concern that a rule change excluding a Claremont project from affordable-housing funds was made improperly.

Student Wants to Know Bookstore’s Markups    
The Sacramento State Hornet reports that a senior government major wants to propose an amendment to the California Public Records Act making the textbook price markups applied by the campus bookstore operators available as public information and, not, as the university’s lawyer insists, privileged trade secrets.

Court Accused of Putting Private Data Online     
Computerworld magazine reports that privacy advocates claim that Social Security numbers, medical histories, tax records, bank account data and other sensitive personal data are freely available online via the website of the Superior Court in California's Riverside County.

Free Speech

Internet Archive Gets FBI to End Secret Demand     
The San Francisco Chronicle reports that in a rare if not unprecedented reversal, the proprietor of the nonprofit Internet Archive has caused the FBI to withdraw its secret demand for records of all communications with one of his patrons as part of an investigation of "international terrorism or clandestine intelligence activities."

Editorial: Teacher Loyalty Oath an Anachronism     
The Sacramento Bee says in an editorial that SB 1322 by state Senator Alan Lowenthal (D-Long Beach) would eliminate membership in the Communist Party as a reason for dismissing a public employee, noting that California is the only state that allows public employees to be dismissed for membership in a political party. Meanwhile the Los Angeles Times reports that the Quaker teacher who lost her appointment as a Cal State Fullerton lecturer after she objected to the loyalty oath submitted a revised statement of her beliefs yesterday in a bid to win the job back.

Whistleblowers

FBI Raids Offices of Federal Whistleblower Guardian
The Los Angeles Times reports that Federal agents Tuesday swarmed the home and office of the Bush administration official responsible for protecting government whistle-blowers, part of an investigation into whether the official retaliated against his employees and obstructed justice.

Open Meetings

Editorial Criticizes Mayor’s Veto of Taping Proposal   
An editorial in the San Francisco Bay Guardian urges the Board of Supervisors to override Mayor Gavin Newsom’s veto of a proposal to audiotape or videotape any meeting of any public agency at City Hall and post the tape on the Internet within 72 hours—for the benefit of citizens whose day jobs don’t permit them to attend the meetings.

Court Asked to Limit 'Mental Processes' Decision

A trio of nonprofit organizations led by Californians Aware (CalAware) is asking the California Supreme Court to order the depublication of a controversial decision of the California Court of Appeal concerning access to government records.  Depublication would leave the decision in place, binding the parties to the case, but would remove its force as precedent to guide other cases.

CalAware, the California First Amendment Coalition and the California Newspaper Publishers Association contend, in the letter composed and signed by Los Angeles attorney Dennis Winston—CalAware’s secretary-treasurer—that the opinion of the Court of Appeal for the Sixth District in Sutter’s Place v. Superior Court contains unnecessary and erroneous language, and in particular needlessly belittles the effect of Proposition 59 on the California Public Records Act (CPRA). 

The plaintiff in the underlying case, a cardroom, made a discovery request for a host of documents, intending to show that the San Jose City Council approved restrictions on its operating permit that were deliberately designed to limit and eventually ruin its business.  The city argued, and the trial court agreed, that a constitutionally-based “mental processes” privilege precluded access to evidence of the councilmembers’ motivations, which in any event could not be used to attack decisions that otherwise complied with the law.

In challenging this ruling before the Court of Appeal, the cardroom argued among other things that Proposition 59 had effectively repealed a superficially similar privilege—for executive decision-makers’ “deliberative processes”—that had been recognized as supporting an exemption from disclosure under the CPRA.  The Court of Appeal decided to the contrary and then some: that Proposition 59 not only did not eliminate deliberative process as a basis for withholding records, but really had no substantial effect on interpretation of the CPRA.

The request for depublication argues that the whole CPRA/Proposition 59/deliberative process line of reference is a red herring—one that conclusively and summarily answers questions that never needed to be addressed in order to decide whether the city’s documents were privileged from discovery as a shield from attack on the councilmembers’ “mental processes.”  But leaving the opinion in Sutter’s Place on the books would be not only unnecessary but also damaging to Proposition 59’s rule that doubts arising in the interpretation of open government laws be resolved in favor of access, the letter says:

In short, the result of allowing the Opinion to remain published will likely be to see it invoked as a basis for public agencies rejecting every request for public records that, in the view of the agency, touches upon the “deliberative process.”

Bill on E-filing of Form 700s Not for Public’s Sake

The California Senate on April 28 passed, on a bipartisan 38-0 vote, a bill that would allow government agencies responsible for receiving  candidates’ and officials’ Form 700 statements of economic interests (SEIs) to allow their being filed electronically.  SB 1204 by Senator Jeff Denham (R-Modesto) would leave in place the current requirement that the information be available to citizens upon request in the current paper format as well.

Lest there be any raised expectations, however, the bill serves the convenience of the filing officials, not that of the public seeking to check the information.  The staff consultant for the Senate policy committee that first approved the bill had this to say in his analysis:

This bill makes various legislative findings and declarations regarding the electronic filing  of SEIs, including the following . . .

(g) Electronic filing can be a safe, secure, and efficient method of completing, filing, and retaining Form 700s for state and local public officials and at the same time grant viewing capabilities by the general public at the location of the filing officer, public kiosk areas, and local libraries with the ability to print a copy for statutory fee.

Finding . . . (g) above refers to granting viewing capabilities by the public at, among other places, public kiosk areas and local libraries even though this bill does not require  or otherwise address online access to the electronically filed SEIs.  The author and committee may wish to consider whether these two findings should be deleted or  otherwise amended accordingly.

The bill was then stripped of the references to the convenience of the public.  Under general provisions of the California Public Records Act, a local and/or statewide watchdog could still probably request and obtain digital copies of those Form 711s that had been filed electronically, and could post them on the Internet.  But the fact that one would have to go to that much trouble to make anti-corruption checks easy for the citizenry says something about lawmakers’ zest for such transparency.  And of course no one should be surprised if the creation of such a watchdog site deterred officials from filing electronically, which SB 1204 leaves a strictly voluntary option.

Senate Passes Brown Act Serial Briefings Bill

The California Senate, on a 32-0 vote, today passed SB 1732 by Senator Gloria Romero, intended to correct one effect of a 2006 ruling by the Court of Appeal in a Brown Act case.  That case, Wolfe v. City of Fremont,144 Cal.App.4th 533, held that a violation of the prohibition on serial meetings occurs only the meetings result in a “collective concurrence” to do or not do something.

SB 1732 would instead prohibit a majority of the members of a local government body from using, outside a meeting authorized by the act, a series of communications of any kind, directly or through intermediaries, to discuss, deliberate, or take action on any item of business that is within the subject matter jurisdiction of the legislative body.  But it would also provide that

the changes made by this bill shall not be construed as preventing an employee or official of a local agency from engaging in separate conversations or communications, outside of a meeting authorized by the Brown Act, with members of a legislative body in order to answer questions or provide information regarding a matter that is within the subject matter jurisdiction of the local agency, if that person does not communicate to members of the legislative body the comments or position of any other member or members of the body.

In short, local government staff would be free to brief members of the body in serial fashion about pending or future agenda items so long as they did not pass on the members’ views to one another in doing so.

The sponsoring California Newspaper Publishers Association would have preferred to eliminate these behind-the-scenes staff briefings as well, but resistance from the League of California Cities and other local government lobbies eliminated that option in a similar Romero bill last spring, and that bill was vetoed in any event, for reasons that remain unclear.  What this bill does correct from the Wolfe decision, however, is the notion that so long as a majority of the members of a local body do not succeed in achieving “collective concurrence” or agreement through serial discussions, the Brown Act is not violated.

The bill would also end discrimination against certain local body members in providing access to agency records, amending the California Public Records Act to state:

when the members of a legislative body of a local agency are authorized to access a writing of the body or of the agency as permitted by law in the administration of their duties, the local agency . . . shall not discriminate between or among any of those members as to which writing or portion thereof is made available or when it is made available.

Public Forum Law Week in Review: 5/2/08

(CalAware Weekly comprises this plus the three previous posts)

Free Press

Two Student ‘Barks’ Provoke Official Bites       The Reporter in Vacaville  reports that a decision by the principal at Vacaville High School to change the advisor of the student-run newspaper, The Bark, is leaving one teacher fighting for his job—a conflict expressly addressed by a bill now making its way through the California Legislature.  Meanwhile a columnist for the North Coast Journal in Arcata reports that the principal of Eureka High School recently ordered the removal from newsracks and recycling of about 1,000 copies of the student newspaper, the Redwood Bark, because an article about a student artist showed one of her paintings that included a female nude.  A law passed in 2006 makes it a misdemeanor to take more than 25 copies of the current issue of a free or complimentary newspaper if done to recycle or to deprive others of the opportunity to read the newspaper, punishable by a fine not to exceed $250 for a first violation.

Justice Department Wants No Shield for Bloggers      Blogger MiniMediaGuy reports that the U.S. Justice Department is lobbying the Senate to amend a proposed reporters’ shield law to exclude bloggers from the limited protections that it would give paid reporters against the forced disclosure of confidential sources. The House passed a shield law bill last fall that treated bloggers and paid media the same. The Senate version uses different words to accomplish the same goal.

Public Information

Newspaper Resists Secret Motion in Corruption Trial     The Los Angeles Times reports that its attorney is arguing against former Orange County Sheriff Michael S. Carona's request to file a secret motion to move his corruption trial out of Southern California, contending that such secrecy violates the First Amendment.

City Denies Access to Retiree Health Care Cost Study     The North County Times reports that at an April 24 budget workshop, Kevin Cummins of the Encinitas Taxpayers Association told the city council he had requested a copy of the draft retiree health-care liability study that was presented but had been denied access to it.

U.S. Forest Service Need Not Name Faulted Employees      The San Francisco Chronicle reports that the U.S. Ninth Circuit Court of Appeals has ruled that the Forest Service need not reveal the names of employees involved in a bungled operation to a private watchdog group that doesn't trust official investigations of the incident.

Public Records Disclose . . .
    • that two architecture firms vying for the design contract for the new Midfield Satellite Concourse at Los Angeles International Airport had tied with a score of 229 points in their written proposals, according to the Daily Breeze.

Free Speech

Teacher Fired for Refusing to Sign Loyalty Oath      The Los Angeles Times reports that Cal State Fullerton has cancelled a lecturer’s appointment to teach American Studies because, as a Quaker and pacifist, she did not sign a loyalty oath swearing to "defend" the U.S. and California constitutions "against all enemies, foreign and domestic." The loyalty oath was added to the state Constitution by voters in 1952 to root out communists in public jobs.

City’s Proposed Campaign Law Raises Questions     The Press-Enterprise in Riverside reports that a proposed Temecula campaign finance law is raising concerns about freedom of speech in future city council races. It would require candidates and political fundraising committees to file with the city clerk copies of fliers, brochures and other documents mailed to 100 or more voters. The mailings must identify who sent them.

Abortion Protesters Raise Hackles on Campus      The Orange County Register reports that a group called Survivors of the Abortion Holocaust is suing Cypress College for having arrested its members twice for refusing to confine their bloody photo displays and information handouts to the campus’s official 20 by 50 foot “free speech zone.”  They also say police confiscated two cameras and a videorecorder that have not been returned.

Assembly Panel OKs Local Whistleblower Shield      The Oakland Tribune reports that a local government whistleblower protection bill authored by Oakland City Auditor Courtney Ruby and sponsored by Assemblyman Sandre Swanson, D-Oakland, cleared a key Assembly committee this week with unanimous support.

Protection for Anonymous Speech on the Internet      The Electronic Frontier Foundation reports that if AB 2433 becomes law, speakers who successfully oppose the use of bogus litigation to obtain their identities could also demand attorneys' fees. The bill has now passed the Assembly unanimously and is moving on to the Senate.

Open Meetings

Fire District Sues Volunteers under Brown Act       The Herald in Monterey reports that the Carmel Valley Fire Protection District is suing the Valley Volunteers organization — made up of volunteer firefighters who staff the Carmel Valley Village fire station — in a dispute over whether the volunteers are legally obligated to open their meetings to the public.

‘Patrol Special’ Officer to Get Open Hearing     The Bay Area Reporter reports that a “patrol special” police officer facing administrative charges failed in her efforts to have the charges against her dropped, and to have the San Francisco Police Commission proceedings closed to the public, since the city doesn't consider such officers—approved by the police department but hired by private businesses and individuals to provide security—to be peace officers who are provided with closed disciplinary hearings.

Public Officials’ Coveted Scofflaw License

The Orange County Register recently reported on a 30-year-old law whose principal function is

to allow nearly 100,000 vehicles registered to California state and local public officials and

employees to evade speeding and other traffic and parking tickets and fines and red light

camera violations.  The newspaper has also spotlighted the current dual efforts to remove the

protection from Vehicle Code sanctions on the one hand and to expand the list of public

workers eligible for the protective list on the other.   

The law was first passed in 1978 to protect peace officer home addresses from disclosure to the public.  It’s been continually expanded since then, and the list now includes:

• the Attorney General and State Public Defender, and all attorneys they employ;
• district attorneys and public defenders, and all attorneys they employ;
• members of the Legislature;
• judges,court commissioners and trial court employees;
• city attorneys certain attorneys they employ;
• nonsworn police dispatchers;
• child abuse investigators and social workers employed in child protective services within a social services department;
• active or retired peace officers;
• employees of the Department of Corrections and Rehabilitation, Division of Juvenile Facilities, or the Prison Industry Authority;
• nonsworn employees of a city police department, a county sheriff's office, the California Highway Patrol, a federal, state, or local detention facility, or a local juvenilehall, camp, ranch, or home, whose employer verifies that, he or she controls or supervises inmates or is required to have a prisoner in his or her care or custody;
• county counsel assigned to child abuse cases;
• members of a city council or board of supervisors;
• federal prosecutors, criminal investigators, or National Park Rangers working in the state;
• active or retired city officers engaged in the enforcement of the Vehicle Code or municipal parking ordinances;
• county psychiatric social worker s employed by a county.
• any police or sheriff’s department employee designated by the police chief or sheriff
• as being in a “sensitive position”—a term undefined in the law;
• state employees classified as licensing registration examiner, Department of Motor Vehicles; motor carrier specialist 1, California Highway Patrol; or museum security officer and supervising museum security officer;
• veterinarians employed by a zoo, a public animal control agency shelter, or a society for the prevention of cruelty to animals shelter or a humane society shelter contracting with a local public agency for animal care or protection services; and
• the spouses and children of any of the above, regardless of where they live.

But the Confidential Records Program has been redundant and needless to protect anyone since 1989, when the Legislature made all persons’ contact information within DMV files inaccessible to the public.  What the law does accomplish, however, is to hide from Vehicle Code ticket and fine enforcers itself the identities and contact information of those on the list.  As the Register put it, the Confidential Records Program

shields these motorists in ways most of us can only dream about:

• Vehicles with protected license plates can run through dozens of intersections controlled by red light cameras and breeze along the 91 toll lanes with impunity.
• Parking citations issued to vehicles with protected plates are often dismissed because the process necessary to pierce the shield is too cumbersome.
• Some patrol officers let drivers with protected plates off with a warning because the plates signal that the drivers are "one of their own" or related to someone who is.

Many who had signed up for the program denied intending to duck tickets or fines, or even to be aware of the possibility of doing so.  But some had to be aware. 

It's impossible to tell whether every motorist included on the list knowingly exploited their confidential plates—and many of those contacted by The Register insisted it was some kind of mistake.
    But by the time a California Highway Patrol officer recognized Loretta Duplessis' Camry from a "heavy hitter" list of toll evaders and pulled her over Feb. 27, the couple had racked up $34,805.95 in penalties from (Orange County Transportation Agency), according to a note the officer wrote on her citation. The couple did not respond to repeated requests for comment, including a note left on their front door in Riverside County.

Assemblyman Todd Spitzer (R-Orange) reacted to the Register exposé by declaring he would introduce legislation to help enforcement agencies penetrate the shield and go after the privileged scofflaws.  But meanwhile Assemblyman Sandré Swanson (D-Oakland) has introduced a bill to expand the list to include firefighters and housing code enforcement officers, despite lack of any evidence that the protection for all individuals in DMV files has been inadequate to shield those on the special list or off it. AB 1958 passed its first test last month in the Assembly Transportation Committee on a bipartisan 13-0 vote  (all committee members but Assemblyman José Solorio (D-Anaheim), within the Register’s readership area).

Those interested in which local (or state) officials have taken advantage of the Confidential Records Program can follow the example of Mark Dierolf, a CityWatch watchdog in Salinas, who in reaction to the Register disclosures has made a California Public Records Act request to the city for “all Request For Confidentiality of Home Address forms (INV32), except for sworn police officers, that are now or were in effect over the last 12 months."  He has provided CalAware with an image of the request form he refers to.  Note: The form’s statement that DMV policy precludes duplication of the form refers to duplication by the applicant.

Will his request (with the information to be protected redacted) be honored?  Stay tuned. Meanwhile, see the list of the top 20 motorists who lived largest in the Orange County fast lane—without paying the toll.

Charter Schools and the Brown Act

AB 772 by Assemblywoman Bonnie Garcia (R-El Centro) would, among other things, provide that among the criteria that are required to be included in the petition for the establishment of a charter school, there be an assurance that the charter school’s board will comply with either the Ralph M. Brown Act (the open meetings law for local agencies) unless the school is operated by an entity subject to the Bagley-Keene Act (the open meetings law for state agencies).

Currently whether the Brown Act applies to a charter school board depends on whether the school is operated by a nonprofit corporation that meets the following test of Brown Act coverage, found in Government Code Section 54952 (c) (1) (A):

A board, commission, committee, or other multimember body that governs a private corporation, limited liability company, or other entity that . . . (i)s created by the elected legislative body in order to exercise authority that may lawfully be delegated by the elected governing body to a private corporation, limited liability company, or other entity.

In a lawsuit that was not appealed, a Marin County Superior Court judge in 2001 concluded that a local charter school board had violated the Brown Act, but that has been the only known judicial ruling on the question.  The California Charter Schools Association, which sponsors AB 772, has for some time encouraged its members to assume that the Brown Act applies to their meetings.

The bill has been approved by the Assembly Education Committee and will be heard in the Assembly Appropriations Committee on May 7.

No Good Reporting Goes Unpunished

The California Newspaper Publishers Association’s Legislative Bulletin out today reports that the Assembly Health Committee has passed Assemblyman Alberto Torrico’s AB 2917, which would generally require more systematic tracking of the backgrounds and behavior of emergency medical technicians (EMTs)—an area whose need for reform was demonstrated by investigative reporting by the Sacramento Bee and others.
But as the CNPA report notes,

AB 2917 contains a provision that would exempt from disclosure written reports and supporting documents regarding EMT(s) submitted to the medical director of a local Emergency Meucal Services agency within 30 days after a disciplinary action has been taken against the employee following an investigation. Investigative information regarding firefighter misconduct would also be exempt.
    Ironically, the need for of AB 2917 was brought to light in several investigative stories published by The Sacramento Bee, Los Angeles Times and The Bakersfield Californian. The stories revealed the lax oversight of EMTs and chronicled such abuses as EMTs injecting themselves with morphine taken from vials in the ambulances and stealing money from unconscious patients being treated. Among the various sources used by the newspapers was information obtained from CPRA requests that on Jan. 1, 2009, may no longer be available if AB 2917 becomes law.

Thus ambulance personnel would join peace officers in the elite ranks of public employees with life or death power over Californians but whose proven record of misconduct, no matter how dangerous, is required to be kept secret.

Governor Schwarzenegger vetoed a similar bill last year, in part because of its similar secrecy provision, but CNPA thinks he might sign AB 2917 because his people are involved in developing it.