CalAware Today

City Attorneys Agree: Executive Secrecy 'Dubious'

PUBLIC INFORMATION -- San Diego's new city attorney agrees with his predecessor, whom he defeated in November: the deliberative process (AKA executive) privilege used to shroud government decision-making is of dubious legal authority after Proposition 59. 

Maybe lower ranks in the city attorney's office literally didn't get the memo, however.  Rob Davis, writing for the Voice of San Diego, reports that they're citing deliberative process to block his information request for records bearing on the development of a questionable water rationing plan.

Update: Davis has just announced that the Voice of San Diego today gave the city a 24-hour ultimatum to change its denial position or defend a lawsuit under the California Public Records Act.

The city argues that the 692 e-mails I've requested are subject to the "deliberative process privilege." In short, the city claims it must keep the e-mails secret to protect the officials' decision-making process. If those officials knew the public would see what they e-mailed about, the city argues, they'd be less likely to discuss policy candidly. And the harm that would inflict on the public outweighs the benefits of being transparent, the city says.

But the city already turned over some e-mails in which its officials—Alex Ruiz, the Water Department's assistant director and Gerry Braun, the U-T columnist turned Sanders aide—discuss policy ideas. And it turned over drafts of some documents in responding to our request, despite claiming that drafts should be kept secret.

In justifying its case, the city cites a 1991 court ruling against the Los Angeles Times that allowed Gov. George Deukmejian to keep his calendars secret. That case has since been challenged. The California First Amendment Coalition sued Gov. Arnold Schwarzenegger for his calendars; Schwarzenegger turned them over in a pre-trial settlement.

What was different? California voters approved Proposition 59 in 2004. The ballot argument for the ballot measure said:

Proposition 59 is about open and responsible government. A government that can hide what it does will never be accountable to the public it is supposed to serve. We need to know what the government is doing and how decisions are made in order to make the government work for us.

In 2005, former City Attorney Mike Aguirre opined that in the wake of Proposition 59, the Times-Deukmejian case "is of dubious authority."

Aguirre's opinion said voters had decided that keeping an eye on government officials outweighed the benefits of keeping their decision-making process secret. Aguirre's opinion said with the proposition's passage: "Voters in their law-making capacity appear more concerned about the corruption secret government makes possible than chilling the discussions amongst their public officials."

I asked City Attorney Jan Goldsmith today whether Aguirre's legal opinion was still being followed. Yes, he said. In an e-mail, Goldsmith wrote:

The Opinion is on our web site and its legal analysis is sound. There has been no change in interpretation.

So, at the same time that Goldsmith stands behind the opinion, which concluded the Times-Deukmejian case is of "dubious authority," his attorneys are citing it to me as the main reason for keeping those 692 e-mails from being disclosed.

Student's Attorney Fee Award Gets Haircut

FREE PRESS --  A Marin County school district owes a student's attorney a much lower legal bill after illegally censoring the student's article eight years ago, reports Brian Stewart for the Student Press Law Center.

Instead of the nearly $1.5 million legal bill initially requested by Andrew Smith — who penned an article in 2001 that was censored by administrators — a trial court ruled the Novato Unified School District will pay $336,350 in attorney fees. The California Court of Appeal in San Francisco, Calif., affirmed that decision May 28.

The only matter left to settle is the amount of interest the school district will be required to pay on that total, which a trial court will decide within a few months, said Stephan Birgel, who represented the school district.

Birgel said the reduced amount was "a good ruling," noting he felt the requested $1.5 million was "very unrealistic." Birgel said the figure was high because the plaintiffs had included "a lot of excess," including charging to rent cars, learning new trial technology, and claiming six hours of attorney fees for a one-page form.

The lawsuit stemmed from Smith's 2001 editorial titled "Immigration" in the school's newspaper, the Buzz. Smith criticized immigration laws, causing some students to protest. Then-Principal Lisa Schwartz quickly implemented prior review and postponed a second column by Smith titled "Reverse Racism."

Governor's Sunshine Moves 'Too Little, Too Late'

OPEN GOVERNMENT -- "Forgive me for not running to the newsroom parapets with a trumpet when Gov. Arnold Schwarzenegger finally decided to join the 21st century earlier this month and order the posting of government contracts and audits online," writes Thomas Peele in the Contra Costa Times.

Imagine that, California government transparency on the Internet. Who'd have thought?

Actually, a lot of people have. Like every member of the Legislature, every open government advocate and just about anyone with a computer and a smidgen of common sense.

So here's the governor, with barely 18 months to go in office and presiding over a fiscal apocalypse, he finally follows through on campaign promises to shine a light into California's dark fiscal corners.

None of what Schwarzenegger did by issuing executive order S-08-09 earlier this month is a new idea. In fact, he's twice vetoed bills that would have done more for online transparency. Now, when California's coffers looking as if John Dillinger just paid them a visit, he does a little two-step?

In the past, Schwarzenegger has been nearly Pollyannaish about access. He vetoed reform legislation in 2006 claiming that access wasn't a problem because he issued an order telling his bureaucrats to be sure to comply with the Public Records Act.

If he expected people to believe that, he might as well have stood on the Golden Gate Bridge telling tourists he had its deed in his pocket and was taking bids on it.

He claimed that releasing his appointment calendar after passage of Prop. 59 in 2004 was a sign that he understood transparency. But what the governor did, in reality, was gut any chance that advocates had of establishing a clear judicial interpretation of the meaning of Prop. 59.

Sure, Schwarzenegger did the right thing by releasing his calendar, but his decision bound no one else. He didn't even declare that it was the policy of his administration that the calendars of all officials in state government were to be released.

Among the ideas the governor rejected was creating an office of open government, which could have turned Prop. 59 into a hammer to pound away at openness issues. The legal meaning of Prop. 59, which amended the state constitution to require that the government always take the broadest possible interpretation of disclosure, remains untested and largely ignored.

Who Owns SF Muni Transit's Schedule Data?

PUBLIC INFORMATION -- It's a good thing, writes Joe Eskenazi for SF Weekly, "we've got NextBus.com to tell us when to sprint to the station and when to saunter. But the question of who owns the actual arrival and departure data for the trains isn't as straightforward as you might think."

A representative of the city told us the data belongs to San Francisco and "was generated by a publicly owned system using taxpayer dollars." Along those lines, a Mission Bay programmer named Steven Peterson feels that as a member of the general public, he had as much right as anyone to create an iPhone application called "Routesy" and present NextBus data in a slightly cuter format. Yet the CEO of a two-person company -- the other employee is the COO—told us that he and he alone owns the data on NextBus.com—and his company's angry e-mails persuaded Apple not to feature Routesy anymore.

This is a complicated argument because the fellow claiming he owns the content of NextBus.com is Ken Schmier, the man who first conceived of the Muni fast pass decades ago and invented—and patented—the NextBus system in 1996. Drowning in red ink, however, Schmier sold his company to a Canadian firm called Grey Island International Systems in 2005 for a piddling $700,000 and around $1.25 million in stock. Here's the catch, though: While Schmier's current company, Next Bus Information Systems consists of him and a COO named Alex Orloff—and that's it—Schmier retains the right to serve as "the agent for the commercial use of predictive data." What does that mean? Not even folks employed by the city with many letters following their names are sure, and it allows Schmier to claim he owns NextBus.com's data.   

In a nutshell, this is not how the city sees things. Judson True, the spokesman for Muni, states unambiguously that the city owns the Muni-related data on NextBus.com and NextMuni.com. When asked, then, how Schmier could possibly demand to be paid for use of this data—as he did with Peterson, and according to Peterson, the site MuniTime.com—True says he'll leave answering that question to us. Make of that what you will. Peterson, incidentally, has contacted the Electronic Frontier Foundation to query about taking legal action against Schmier's company.

Meanwhile, SF Weekly tracked down a source within city government intimately familiar with the situation who spoke on condition of anonymity. He described Schmier's current company as merely "a group of shareholders" that has the right to be "'the commercial representative for the commercial application of the data'—whatever that means." What that has meant so far, according to Schmier, is that he's sold banner ads on NextBus.com—a Web site owned by Grey Systems, not him. The total amount of money brought in this way since 2005: Somewhere between $5,000 and $10,000.

"Mr. Schmier is trying to make a buck. That is what we think," said the city source regarding Schmier's claims to NextBus data. "Contrary to the information Mr. Schmier is feeding the media ... the MTA spent years getting this system to work. The reason it took so long to roll out is it didn't work. Mr. Schmier had a good idea, but he didn't have the technical know-how to make it work."
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In the meantime, it warrants mentioning that the nine-year-old contract between the city and NextBus is in the final stages of a revision -- our city source expects it to be completed within weeks. It will be interesting to see what mention there is—if any—of Schmier and his "right to be the commercial representative for the commercial application of the data."

HBO Documentary Reviews Recent Speech Fights

FREE SPEECH -- "Shouting Fire: Stories from the Edge of Free Speech" airs tonight and later again this week on HBO as a reminder that freedom of speech as a constitutional bulwark is re-won in every generation by those whom most of us would prefer to shut up.

As described by HBO, the 74-minute documentary

examines the balancing act between protecting civil liberties and national security in a post-9/11 world, asking whether all speech is equally free. (Producer Liz) Garbus' primary tour guide in navigating this perilous landscape is her father, noted First Amendment attorney Martin Garbus, who applauds "the idea that you can have a country where anybody can think anything, say anything, create anything," calling it "a miracle." The documentary looks into his own experiences as a First Amendment lawyer, including the Pentagon Papers case and his defense of a neo-Nazi group's right to protest.

"Shouting Fire: Stories from the Edge of Free Speech" examines the case of Ward Churchill, a tenured professor of Ethnic Studies at the University of Colorado, who was fired after writing that U.S. foreign policy abuses were a partial cause of the 9/11 attacks. Dismissed for research misconduct, Churchill later won a lawsuit against the university for unlawful termination of employment.

Liz Garbus also examines the story of Yemeni-American Debbie Almontaser, a veteran of the New York City public school system and founding principal of Khalil Gibran International Academy, the city's first dual-language Arabic-English public school. Almontaser claims she was forced to resign from her job in 2007 after she set off a firestorm by citing the literal definition of the word "Intifada" in an interview with the New York Post. After she left, the Academy opened with a temporary principal who did not speak Arabic. Alleging a witch hunt, Almontaser has filed a lawsuit claiming her First Amendment rights were violated.

The documentary also considers the case of Chase Harper, who was suspended from Poway High School in San Diego for wearing a T-shirt that read "Homosexuality Is Shameful" during a gay and lesbian awareness event. Advocates for Poway High argue that they have the right to censor speech that would disrupt the educational experience of other students.

Finally, Garbus looks at Ruth Benn and Ed Hedemann, who were arrested and detained along with other protesters during a nonviolent demonstration at the 2004 Republican National Convention in New York City. In the process of their defense, lawyers unearthed evidence that their organization and other peaceful groups had been subject to extensive surveillance by the NYC Police Dept.

Water Manager Tries to Shut off (News) Leaks

FREE PRESS -- Following a recent meeting with editors of the Antelope Valley Press, Randy Hill, general manager of the Palmdale Water District, denounced the newspaper for publishing an internal memo he circulated that alluded to the district's financial woes.  Then, the Valley Press reports, he went after his own staff to stanch future leaks. 

But the e-mail memo threatening them was also leaked.

The e-mail stated: Effective immediately while working for PWD no employee is to converse, or share information in any way with Antelope Valley Press reporter Alisha Semchuck. Anyone contacted by Alisha should immediately refer her to the General Manager. Failure to follow this directive will subject an employee to disciplinary action up to and including termination.

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Leaks to the media about dealings at government agencies are nearly impossible to suppress, according to (Jim) Ewert, legal counsel for the California Newspaper Publishers Association in Sacramento.

Whether government or corporate whistle-blowing, Ewert called leaks to the media "a time-honored tradition."

Demolishing a communication relationship with the press is equally ineffective, Ewert said.

"He's cutting off his nose to spite his face if he thinks he's going to control the flow (of information)," Ewert said.

Targeting a reporter to be singled out is shaky practice viewed through the lens of case law, Ewert said.

"If they're going to provide access to one media source, they must provide to all," Ewert said. "They have to treat all media sources the same." That conclusion falls under the equal protection clause of the 14th Amendment.

Hill, reached for comment by the reporter for this story, said that singling her out was not the whole intent of his order to cease and desist from supplying information to the Valley Press.

"It applies to all media," Hill said of his memos. "I just happened to use your name because you've been the problem," he told the Valley Press reporter.

Tenants Have Right to Display Window Signs

FREE SPEECH -- A helpful reminder for both landlords and tenants appeared in a recent San Francisco Chronicle, supplied by Project Sentinel: California law doesn't allow the former to censor or penalize the latter based on their display of political signs in their windows.

Attempts to regulate this type of tenant activity should be very carefully considered. California Civil Code Section 1942.5(c) protects tenants from retaliatory acts based on their exercise of "any rights under the law." The "No on Prop. 8" sign you are describing is an act of free speech and is almost certainly within the scope of Section 1942.5(c).

Since you already allow window signs, it would be difficult for you to argue that this particular sign is not permissible, unless it constituted some type of hazard because of its size or placement, or because of some other specific physical attribute. Deciding which signs can be displayed based on the content, such as deciding that certain language is "offensive," means that you are relying on a very subjective standard, because one person's "offensive" is another person's "free speech."

The referenced code provision states:

  (c) It is unlawful for a lessor to increase rent, decrease services, cause a lessee to quit 
involuntarily, bring an action to recover possession, or threaten to do any of those acts, for 
the purpose of retaliating against the lessee because he or she has lawfully organized or 
participated in a lessees' association or an organization advocating lessees' rights or has 
lawfully and peaceably exercised any rights under the law. In an action brought by or
against the lessee pursuant to this subdivision, the lessee shall bear the burden of 
producing evidence that the lessor's conduct was, in fact, retaliatory.

Prof Who Compared Nazi, Israeli Actions Is Safe

FREE SPEECH -- A faculty committee has notified U.C. Santa Barbara sociology professor William I. Robinson that it has found "no probable cause" to pursue complaints about his invitation to students to compare photos of the Nazi assault on Jews and of the Israeli Defense Force's assault on Gaza.  But the tenured professor wants an apology, reports Inside Higher Ed.

In a statement, Robinson said that he is waiting for “a public apology from the university as a first step in clearing my name after it has smeared my reputation and undermined my professional integrity.” He added that he plans to file a grievance over how he was treated in the case.

The case has attracted attention far beyond Santa Barbara, with the American Association of University Professors last month calling on the university to "pause" its inquiries because of the academic freedom issues involved. Cary Nelson, national president of the AAUP, said Wednesday night that "although I am pleased that the Robinson case has been closed, I am also concerned that unnecessary investigations of faculty exercising their academic freedom are having a serious chilling effect on our more vulnerable or less courageous colleagues."

The dispute dates to an e-mail message that Robinson sent to the approximately 80 students in January in a course about sociology and globalization. The e-mail contained an article criticizing the Israeli military's actions in Gaza. Part of the e-mail was an assemblage of photos from Nazi Germany's persecution of Jews and from Israel's actions in Gaza. Students were invited to look at the "parallel images." A message from Robinson argued that Gaza would be like "Israel's Warsaw."

In February, the Anti-Defamation League's Santa Barbara office wrote to Robinson to protest the e-mail and to urge him to repudiate it. "While your writings are protected by the First Amendment and academic freedom, we rely upon our rights to say that your comparisons of Nazis and Israelis were offensive, ahistorical and have crossed the line well beyond legitimate criticism of Israel," the letter said. It went on to say that the "tone and extreme views" in his e-mail were "intimidating to students," and that using his university e-mail to send "material that appears unrelated to" his course violated university standards for faculty members.

Following that letter, two students in the course dropped the class and filed complaints against Robinson. One student wrote that she felt "nauseous" upon reading the e-mail, and felt it was inappropriate. A second student complaint accusing Robinson of being unprofessional -- also from a student who dropped the course after receiving the e-mail -- said that Robinson has "clearly stated his anti-Semitic political views in this e-mail."

Local Officials As Brown Act Whistleblowers

OPEN MEETINGS -- Is it just a temporary blip or an illusion of wishful thinking, or is the Brown Act beginning to be enforced more assertively by the very local officials whose collective action it is designed to keep in the open?

Or is this phenomenon limited to local body alumni or short-timers with little to lose for rocking the boat? Consider two recent examples of those willing to blow the whistle on their current or former peers, complaining of perceived violations of the open meeting law.  One is from yesterday's Lompoc Record:

During a closed meeting of the Lompoc Unified School District Board of Education in June 2008, two of the members expected only to discuss the possible hiring of an interim personnel director.

Instead, former board members Bob Campbell and Ken Ostini said, they were surprised by the suddenness of a motion to hire Marilyn Corey, who had been interim personnel director in 2002, and the existence of a proposed contract to pay Corey $500 per day.

The actions of the board majority — Sue Schuyler, Anne Bossert and Kris Andrews — were highly inappropriate and perhaps violated California’s open meetings law, according to Campbell and Ostini, both of whom declined to seek re-election in November.

Andrews, Schuyler and Bossert deny that they violated the Brown Act and are reacting strongly to the accusation.

Although Corey wasn’t hired for that position, the discussion at the meeting a year ago threw the board into a tailspin, symptomatic perhaps of the turmoil it has been engulfed in for the past couple of years as it has made deep, painful budget cuts and controversial personnel moves.

It quickly became apparent, Campbell said, that the board majority had been discussing personnel moves privately and reaching a majority consensus outside of a board meeting — a clear violation of the Brown Act.

Another is from yesterday's San Jose Mercury News:

San Jose's planning commissioners Wednesday will formally rescind and retake last month's vote naming Thang Do as the panel's new chairman, following a complaint that the votes for his selection were illegally lined up ahead of time.

The outgoing chairman, Jim Zito, said Tuesday that he had asked the city attorney's office to investigate the matter, first reported in the Mercury News. The attorney's office recommended the vote be retaken.

Four of the seven commissioners — Xavier Campos, Christopher Platten, Hope Cahan and Do — reportedly discussed the matter before the panel's May 13 meeting, in violation of the state's open-meeting laws. They made up the four votes backing Do over outgoing Vice Chairman Matt Kamkar.

"I, as chair, specifically requested an investigation into this Brown Act violation," Zito said. "It's my responsibility."

The Brown Act is meant to prevent a majority of any government panel from privately discussing votes and other issues. Campos and Platten have said no such discussions occurred.

The recommendation by City Attorney Rick Doyle's office doesn't require commissioners to say whether Brown Act rules were broken. But commissioners apparently received a notice from Doyle's office spelling out the nuances of the law; Doyle could not immediately be reached for comment Tuesday.

A third item from yesterday's Atherton Almanac deals not with a Brown Act violation but still a restriction of speech and participation rights by majority jealous of its control.

Two members of the Atherton City Council are accusing their colleagues of censorship for making it harder to place issues on meeting agendas.

Until recently, Atherton had no formal process for a member of the council to add an item to a meeting agenda, leaving it up to the city manager to set the agenda. In March, a new policy was adopted requiring the approval of two council members before an issue could be placed before the entire council.

But now that's going to change. At the June 17 meeting, a divided City Council passed new rules requiring an additional step -- not only does a pair of council members have to agree in order to propose an agenda item, but it will require a majority vote of the council to authorize the item's placement on a future meeting agenda.

So, if three or more members of the council vote against a proposed item, that item won't get on a meeting agenda and won't be discussed by the City Council.

The vote was 3-2, with Elizabeth Lewis and Charles Marsala opposed.

"Agenda items can be very dangerous if they're not approved by the council," said Councilman Jim Dobbie.

Getting something on a council meeting agenda is important because, under the state's open meeting law known as the Brown Act, an elected body can't take action on anything that hasn't been placed on an official agenda and published at least 72 hours in advance. The rules can be cumbersome, but they serve a purpose -- to prevent the public from being blindsided by government decisions.

Mr. Marsala said that a lot of controversial issues faced by the town in the past few years would have benefited from a public airing, if only he had been allowed to get them on the council's agenda.

"If there is an issue that needs to be brought out and vented, then let that happen," he said. "I like the idea that if two council members want to bring something to the attention of the full council, (they can). I'm in favor of leaving things the way they are."

Judge Sotomayor No First Amendment Visionary

FREE SPEECH -- If the "empathy" Judge Sonia Sotomayor would bring to the Supreme Court means the ready ability to identify with the weaker against the more powerful, don't expect it to extend to the speech rights of students against school officials who would squelch their criticism.

That's the point made recently by journalist Ed Brayton on his blog, Dispatches from the Culture Wars.  And he's not the only one not expecting a Justice Sotomayor to be a passionate First Amendment champion.

The First Amendment Center's Ronald Collins reviews some of Sotomayor's other rulings dealing with the first amendment and concludes essentially the same thing I and others have concluded after looking at many of her rulings, that Judge Sotomayor tends to take a very careful, thorough and technical approach to applying the law that seems to lack an overarching vision of constitutional interpretation:

Generally speaking, Judge Sotomayor's 16 years of work on the federal district and circuit courts reveal a far more humble-minded jurist, one more concerned with context than with concepts, more attentive to discerning facts than with announcing new doctrine, and one who is more focused on applying law than developing it...

Perhaps her experience as a trial judge explains Judge Sotomayor's attention to facts, the importance of context and the need to apply the controlling law in a rigorous way duly attentive to what is or is not in the trial record. As previously noted, this approach to the First Amendment could prove salutary in some kinds of cases, as with the secondary-effects doctrine or the government employee-speech doctrine. Then again, it might lead to the kind of fact-specific jurisprudence championed by Justice Stephen Breyer in the religious monument cases -- McCreary County, Ky. v. ACLU of Kentucky (2005) and Van Orden v. Perry (2005) -- or to the confusing law of obscenity prior to Miller v. California.

What we now know of Sotomayor's First Amendment record seems consistent with the generalizations mentioned above. What we don't know is how that record and her contextual approach to decision-making will play out when, if confirmed, she is called upon to consider new exceptions to the First Amendment (see United States v. Stevens) or free-speech challenges to broadcast indecency regulations (see FCC v. Fox) or attempts to ban new kinds of commercial speech (see IMS Health, Inc. v. Ayotte).

Absent the kind of about-face we saw with Sen. Black when he became a justice, or the kind of jurisprudential development we have witnessed with Justice Anthony Kennedy, Sotomayor's First Amendment legacy is unlikely to be significant. Then again, she might surprise us.

I think this helps me to finally put my finger on why I am disappointed in the Sotomayor nomination. To some extent, one's approach to the law is independent of one's ideology. Sotomayor's minimalist, very technical approach to the law is mirrored most closely on the current court by Chief Justice John Roberts and Justice Alito. All three tend to eschew the kind of broad and bold statements, what is often called bright line jurisprudence, favored by Justice Scalia and Justice Thomas.

But what I wanted to see on the court was someone who does have an overarching vision of what the constitution is supposed to mean. I prefer the judicial approach of Scalia and Thomas even while rejecting the particular interpretations they would apply in almost all cases. And I was really hoping for a liberal equivalent of that, someone who could offer a bold and distinct paradigm to counter that of Scalia and Thomas.

Confiscation of Student Magazine Sparks Wide Ire

FREE PRESS -- A California high school principal's confiscation of most copies of a student magazine reporting on the youthful tattoo phenomenon has prompted outrage from student journalists, free speech advocates, and a state lawmaker who says he'll take legislative action.

As noted in a press release from Senator Leland Yee (D-San Francisco/San Mateo),

Earlier this month, S.K. Johnson, principal of Orange High School in Orange, California, confiscated nearly all 300 copies of a student-produced magazine after he objected to the cover story regarding a growing trend of students getting tattoos after turning 18.  He has refused to allow issues of PULP magazine to be distributed and the students have since recessed for summer break.

“The principal’s actions clearly violate state law,” said Senator Leland Yee (D-San Francisco/San Mateo).  “Proudly, California has led the way in protecting student speech and press rights.  As the author of several of these laws, I will do all I can to support these students and ensure that administrators stop infringing on the legal rights of their students.”

Last year, Yee successfully passed a law to protect high school and college teachers and other employees from retaliation by administrators as a result of student speech, which most often happens when a journalism advisor or professor is disciplined for content in a student newspaper.  In 2006, Yee passed the law to prohibit censorship or prior restraint of student press by administrators and to protect students from being disciplined for engaging in speech or press activities.

Through the years, California has provided broad protections to student speech activity, only limiting expression which is obscene, libelous, slanderous, or would cause a substantial disruption of the orderly operation of the school.

In the case of Orange High School, the students attempted to publish a magazine that included an illustration on the cover showing a tattoo of the magazine’s name and image of the school mascot.  According to the Student Press Law Center, Johnson told students he felt the cover may encourage students to get tattooed and promote gang activity, although the article did not even mention gangs.

"I really do feel that they're trying to suppress us when all we're trying to do is report on the daily life and general life of our students," said PULP Editor-in-Chief Lynn Lai to the Student Press Law Center.

Newspapers Still Competitive for Government Ads

PUBLIC INFORMATION -- Writing in SF Weekly, Matt Smith reports that in San Francisco, some of the city's top elected leaders want to stop having new ordinances published in newspapers and instead post them on the city's own website.

Supervisors David Chiu, Ross Mirkarimi, John Avalos, and David Campos — members of the city's left "progressive" wing — have quietly slipped anti-newspaper language into a proposed charter amendment that is being characterized as a mere measure to require five-year budget plans. Sprinkled unassumingly throughout, however, are edicts to strip part of the $450,000 in annual city advertising placed in newspapers, primarily the San Francisco Chronicle and the San Francisco Examiner. Instead of publishing the notices in newspapers, the proposed measure would have the city post notices only on its Web site, www.sfgov.org.

"I think there has to be some innovation in upgrading our ability to reach out and spend limited dollars on advertising, and modernize the way we do it," Mirkarimi said during a June 17 committee meeting. "The way we are doing it now is almost archaic." State law requires San Francisco and other cities to use newspapers for official notices, potentially limiting the proposed charter amendment's scope.

However, a pending bill in the state Legislature backed by California's local government clerks would allow public agencies to stop paying newspapers to publish government ads such as legal notices, and instead direct residents to a municipal Web site.

Newspaper publishers say this is yet another in a long list of efforts by bureaucrats to hide their activities from the public.

Tom Newton, general counsel for the California Newspaper Publishers Association, said allowing cities and counties to limit public notices to government-run Web sites would create a conflict of interest. Politicians and government employees, he said, often seek to hide, rather than publicize, their business.

Smith suggests that if public agencies want to grab their money's worth of eyeballs, government can't compete with private enterprise.

This idea that news organizations are an outdated way of obtaining information, and that other Web-based media are more up-to-date, comes up a lot nowadays. The public itself, however, is not buying this line of dot-com bombast.

Despite their financial problems, newspapers, whether online or in print, remain by far the most popular source of information about public life. The Chronicle's Web site, SFGate, has more than 3.4 million unique monthly visitors, 400,000 more than it did a year ago, according to the Web analytics site Compete.com. The Examiner's parent company site, Examiner.com, had 3.7 unique million visitors this past month, six times its traffic a year ago; www.sfgov.org, by comparison, had 223,000.

Californians outside San Francisco obtain an even greater portion of their information from newspapers and newspaper Web sites. As an example, Newton cites Grass Valley, a city two hours north of San Francisco, whose official Web site gets 150 daily visitors, while the Grass Valley Union newspaper's site gets 45,000. For finding specific information, a government Web site is a natural place to go. For a citizenry that wishes to remain casually informed about the day-to-day business of government, newspapers and their Web sites are by far the preferred alternative.

Do FTC Twits Want Tweet Consumer Disclosures?

FREE SPEECH/FREE PRESS -- Want your blog posts—or even tweets—to be regulated by the Federal Trade Commission for sufficient disclosure to consumers?  A reaction to Senator Barbara Boxer's "Call me Senator, please" comment the other day got this libertarian thinking.

It's no secret that I've been angry about how California Senator Barbara Boxer recently chastised Army Brigadier General Michael Walsh for acting in accordance with military protocol and addressing her as "ma'am." When I saw that my friend and business partner Shana Kluck had tweeted something on the topic, I was about to spread the word to my Twitter followers. Then I read this article, one which states that the Federal Trade Commission will probably be regulating disclosure on blogs in the immediate future:

New guidelines, expected to be approved late this summer with possible modifications, would clarify that the agency can go after bloggers - as well as the companies that compensate them - for any false claims or failure to disclose conflicts of interest.

It would be the first time the FTC tries to patrol systematically what bloggers say and do online. The common practice of posting a graphical ad or a link to an online retailer - and getting commissions for any sales from it - would be enough to trigger oversight. [...]

Any type of blog could be scrutinized, not just ones that specialize in reviews.

So parents keeping blogs to update family members on their child's first steps technically would fall under the FTC guidelines, though they likely would have little to worry about unless they accept payments or free products and write about them.

But they would need to think twice if, for instance, they praise parenting books they've just read and include links to buy them at a retailer like Amazon.com Inc. [...]

Still, the agency has a big job ahead as new communications channels continually emerge. Advertisers now are paying some Twitter users to post short items through the increasingly popular messaging service. The FTC says the guidelines would cover such arrangements, regardless of the medium.

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When no other crime has taken place, lack of proper disclosure is a political or business issue and no political entity or business chooses to look bad. Specifically because of it's free-market nature and lack of regulation, the Internet has done a wonderful job of policing it's own.  Throw government into the mix and you'll get people who are hesitant to start new blogs, continue writing at their current websites, or even update their Facebook status.

The situation gets even more ridiculous when one considers microblogging. Considering that most legal disclaimers are longer than the 140 characters allowed at Twitter, this borders on the absurd. 

Here's how the blogger sees the mandated disclosures operating on his partner's tweet about Senator Boxer.  Remember roadside Burma Shave signs?

TWEET ONE: RT@ ShanaJean Sen. Boxer reminded us that common courtesy is not so common- http://is.gd/19zA6 www.HowToSaveYourFamily.com #tlot #veterans..

TWEET TWO:...Disclosure: @ShanaJean is my business partner and she has a contract to promote the book advertised (but not the article she linked to)..

TWEET THREE:...in the aforementioned tweet. Because 5% of our firm's gross receipts go into a common account to pay for common expenditures, I'm...

TWEET FOUR:...receiving some financial benefit from retweeting her message. If enough people retweet this, it may even cover the expense of one...

TWEET FIVE:...business card.

Whistleblowers, Sunshine, Speech Bills Advance

PUBLIC FORUM LAW -- In a very encouraging hour or so for public forum law, bills with new protections for aggrieved government whistleblowers, open government law enforcement, and speech and press freedoms won approval today in the Assembly Judiciary Committee; three of the four are headed for their final stop on the Assembly floor before going to the Governor.

All are Senate bills already passed in that house.  Three of the four are authored by Senator Leland Yee (D-San Francisco), whose office reports their progress as follows:

In July 2008, the California Supreme Court ruled that University of California (UC) employees who are retaliated against because they report wrongdoing cannot sue for damages under the state’s Whistleblower Protection Act, so long as the University itself reviews the complaints in a timely fashion.  The ruling uncovered an oversight made by the Legislature when the Act was amended in 2001, which provided legal standing for all other state employees, including employees of the California State University, to seek damages.

In response to the Court’s decision in Miklosy v. the Regents of the University of California (S139133, July 31, 2008), the Assembly Judiciary Committee today approved (8-2) legislation to provide UC employees with the same whistleblower protections and legal standing as all other state employees.

*****

On a 7-2 vote, the Assembly Judiciary Committee also approved Yee’s SB 220 to expand the protections for state employees who report waste, fraud, and abuse.  That bill now heads to the Assembly Appropriations Committee.

Yee's office also reports passage of a bill whose need was highlighted by CalAware's troubling experience in a lawsuit to enforce open government laws:

On a 9-1 vote, the Assembly Judiciary Committee today approved legislation to prohibit public entities from recovering attorney’s fees from individuals who sue to enforce the State’s open government laws, specifically the California Public Records Act, Bagley-Keene Open Meetings Act, and the Ralph M. Brown Act.

“SB 786 corrects an abuse of the anti-SLAPP law by government bodies,” said Senator Leland Yee (D-San Francisco/San Mateo), the bill’s author.  “The anti-SLAPP law was designed to protect freedom of speech and petition; not to chill an individual’s right to participation and ability to access public documents.  SB 786 will not only protect the right of individuals to enforce open government laws without fear of a significant financial burden, but will also ensure that government entities act with greater transparency.”

In 1992, the California Legislature enacted the original anti-SLAPP (Strategic Lawsuits Against Public Participation) law for individuals to obtain an early judicial ruling and termination of a SLAPP suit arising out of one’s exercising of speech and petition rights in connection with a public issue.  Prior to the law, big corporations and developers – in attempt to silence an individual who was exercising their free speech or petition rights – would often masquerade false defamation cases as ordinary lawsuits.  Such cases resulted in severe economic hardships against innocent individuals.

“In 2007, we filed an action for declaratory relief—not damages—against a school district, alleging violations of the Brown Act, the CPRA and the First Amendment,” wrote CalAware Executive Director Terry Francke, in a letter supporting the bill.  “We challenged the board of trustee majority’s censure of one of its members for his open session criticism of board action and staff performance, and the superintendent’s editing of those remarks out of the video recording distributed for cable TV replay.  Our belief at the time was (and still is) that the public has a right to hear even the harshest criticism by an elected member of a government body as to how the body has dealt with any issue—even a personnel matter—on which it has acted.”

The trial court dismissed CalAware’s action upon the district’s anti-SLAPP motion (Californians Aware et al. v. Orange Unified School District, No. G038499).  As a consequence, the nonprofit organization was held liable to pay the district attorney’s fees and costs for trial totaling more than $80,000.

The committee also approved SB 320 by Senator Ellen Corbett (D-San Leandro), which would, as summarized in the committee analysis,

permit a court in California to not recognize (and enforce) a judgment for (libel or slander) 
obtained in a foreign jurisdiction that does not provide at least as much protection for 
freedom of speech and the press as that provided under the United States and California 
Constitutions. This bill seeks to address the problem of "Libel Tourism," which is the 
increasingly popular practice of suing U.S. journalists and authors in libel-friendly foreign 
courts (often in Great Britain) and then attempting to enforce the judgment in a 
California court. Because existing state law, the Uniform Foreign-Country Money 
Judgments Recognition Act, requires the recognition of foreign money judgments in the 
U.S., except as specified, and because there are stark differences in libel law and free 
speech protection between the U.S. and other countries, there is an incentive for libel 
plaintiffs to engage in forum-shopping in order to silence speech they find objectionable. 
Past examples of this phenomenon, with their chilling effect on free speech and which 
have been well documented, have spurred lawmakers in the U.S. to propose legislation 
similar to and including this bill, with the goal of protecting free speech from the effects of 
Libel Tourism. 

Coincidentally, the Reporters Committee for Freedom of the Press notes that the U.S. House of Representatives Judiciary Committee last week passed a bill addressing the same problem.

The bill that passed, H.R. 2765, put forth by Rep. Steve Cohen (D-Tenn.), would prevent American courts from recognizing foreign libel judgments that are deemed "repugnant" to the First Amendment. It does not go as far as two other libel tourism bills under consideration in Congress, both of which would allow libel defendants to counter-sue the plaintiffs who bring such claims against them in foreign courts.

Those bills —H.R. 1304, sponsored by Rep. Peter King (R-NY), and S. 449, sponsored by Sen. Arlen Specter (D-PA)—have not yet been put to a vote.

Cohen’s bill passed the full House last September, but that was as far as it got before the congressional session ended.  

All three of the libel tourism bills were introduced after New York author Rachel Ehrenfeld was ordered by a British court to pay 30,000 British pounds in a libel lawsuit brought by billionaire Saudi businessman Khalid bin Mahfouz.

Justice Department Worries Facts Will Seed Satire

PUBLIC INFORMATION -- The Washington Post's soon-to-depart blogger Dan Froomkin notes that "the Obama Justice Department yesterday put forth an new legal argument, one that even the Bush team might not have had the gall to employ. Call it the Daily Show disclosure exclusion."

Yes, a Justice Department lawyer actually argued to a federal district court judge that there should be an exemption from Freedom of Information Act disclosure rules for documents that would subject senior administration officials to embarrassment—as in on late-night television.

This is not just wrong, it's perversely wrong. By contrast, a good rule of thumb would be: The more embarrassing, the more we need to know. The Justice Department and the White House should be forced to renounce this assertion immediately.

And if this wasn't bizarre enough, consider the irony that in the case at hand, the Obama Justice Department is fighting the release of a transcript of former vice president Dick Cheney's testimony to special prosecutor Patrick Fitzgerald about his role in the outing of Valerie Plame as a CIA agent.

And guess what else? The Obama team relied extensively on a legal opinion (via Emptywheel) authored by Stephen Bradbury, the utterly discredited head of the Office of Legal Counsel whose other writings included memos outrageously asserting that torture was legal—and that Karl Rove had absolute immunity from congressional oversight.

In his memo, Bradbury described the information in question:

Portions of the withheld documents reflect or describe frank and candid deliberations involving, among others, the Vice President, the White House Chief of Staff, the National Security Adviser, the Director of the Central Intelligence Agency, and the White House Press Secretary. These deliberations concern, among other things, the preparation of the President's January 2003 State of the Union Address, possible responses to media inquiries about the accuracy of a statement in the President's address and the decision to send Ambassador Joseph Wilson on a fact-finding mission to Niger in 2002, the decision to declassify portions of the October 2002 National Intelligence Estimate, and the assessment of the performance of senior White House staff.

OK, right this second, I can't think of a single document that I want—or deserve to have—more.

And yet, as R. Jeffrey Smith chronicled in The Washington Post this morning:

[C]areer civil division lawyer Jeffrey M. Smith, responding to Sullivan's questions, said Bradbury's arguments against the disclosure were supported by the department's current leadership. He told the judge that if Cheney's remarks were published, then a future vice president asked to provide candid information during a criminal probe might refuse to do so out of concern "that it's going to get on 'The Daily Show' " or somehow be used as a political weapon.

This is yet another example of Obama's lawyers blatantly violating the president's promise not to "protect information merely because it reveals the violation of a law or embarrassment to the government."

Activist Gets Water Plans—and Attorney's Fees

PUBLIC INFORMATION --  The Humboldt County Superior Court has awarded a Fortuna resident $22,000 in attorney’s fees and court costs for her successful lawsuit to force the city to allow access to the schematics of its municipal water system.

“I am sorry it had to come to this,” Janelle Egger told her attorney, Paul Nicholas Boylan of Davis. “But I really had no choice but to hire a lawyer to help me get the records I requested."

Ms. Egger, a vocal critic of the City of Fortuna’s plan to build a new water system, feels that the city staff hasn’t adequately studied how to best use the existing system. To learn more, she made a request under the California Public Records Act (CPRA) for the information the staff used to come up with its recommendation to invest millions of dollars in a new system.

“In particular," she says, "I asked to see the water system schematic, which was shown at a city council meeting as part of a PowerPoint presentation. I wanted to look at it a little closer.  But I was told I couldn’t have it because of "national security concerns.”

Egger hired Boylan, an experienced CPRA litigator, who prepared and filed a lawsuit. The city provided the documents Egger wanted—including a full-size copy of the water system schematic—and, on June 10, Superior Court Judge John T. Feeney ordered it to pay Boylan $22,728 to compensate him for the time he spent on the case. The CPRA requires local agencies to pay the attorney’s fees of citizens who have to sue in order to obtain public records.

“I am confident the city will react differently the next time my client asks to see public records,” Boylan says. “I have a similar motion in Glenn County dealing with virtually identical facts and law, which means the rulings should be similar, but I am still waiting to find out what that judge decides.”

In the Glenn County lawsuit, the Sacramento Valley Mirror requested public documents from the City of Willows.  The city provided copies, but blacked out important information.  The Mirror filed a petition for writ of mandate asking the Superior Court to order the city to reveal the blacked out information. In response to the lawsuit, the city provided the documents with no deletions.

Judge: Courts' Spending Records Are Public

PUBLIC INFORMATION -- A small newspaper in rural Glenn County north of Sacramento has won a court order from a visiting appellate justice for the release of information documenting spending by and for superior court judges.

The Sacramento Valley Mirror, California's most sunshine-litigious newspaper, seemingly as often as not responds to a denial of access to government information by filing suit, and almost always gets the information it seeks by either judgment or settlement.  (Editor and publisher Tim Crews is a member of the board of directors of Californians Aware.)

Here's how the Valley Mirror—which recently shut down its website—reports its victory in the current edition:

Justice Betty Dawson of the Fifth District Court of Appeal [pictured] late Thursday granted this newspaper’s demand for court spending records.

Ruling from the bench, Justice Dawson, assigned to the case by the Administrative Office of the Courts, said that, indeed, The Mirror had the right to see spending and the details of such spending, particularly on the Orland Court Chambers remodeling.

The Mirror filed a petition for a writ of mandate on March 11. The court executive officer, Tina Burkhart, initially released quarterly financial summaries.

But no detail on the spending at the Orland Courthouse, which is due to be abandoned in the near future.

After Paul Nicholas Boylan, of Davis, filed the suit on behalf of the paper, 10 remodel documents were released. And most of them led to other documents and revealed an unaccounted, secreted spending.

Of particular concern was the matter of estimates. None were apparently solicited.

Also, the fees and contract for an interior decorator, a former court official from Nevada County, are hidden as well as cost of furniture, lighting and other items.

References to these things were also documented in county records secured from the Glenn County Department of Buildings and Grounds and the Glenn County Department of Finance.

The attorney for Ms. Burkhart argued that the court wasn’t compelled to release information on how it spent the public’s money.

But Justice Dawson disagreed, saying that while the California Public Records Act did not directly apply, and the rule of court was not precise, “The spirit of the California Public Records Act” was what counted.

The Administrative Office of the Courts and the chief justice have long said that the public has the right to know exactly how its money is spent. Yet, for the most part court operations are hidden from public view. This, despite the direction from court hierarchy in San Francisco.

“I never doubted this outcome,” said Mirror attorney Boylan. “It is simply absurd to believe that any governmental agency, even a court, can hide how they spend public money, and yet that is exactly what the court’s attorney was arguing,” Mr. Boylan said. “Every dollar spent defending the decision to withhold the requested information was a dollar utterly wasted that should have been spent on something else.

“The irony here is that this dispute is going to end up like most public records disputes,” Mr. Boylan observed.  “After spending enormous amounts of time and money to keep records secret, Ms. Burkhart is going to turn over the requested information, it isn’t going to reveal anything unusual, and people are going to ask why she spent so much money and invested so much effort into trying to keep the information hidden. The bottom line is that most public agencies say no because they can, not because they have a reason for saying no,” Mr. Boylan concludes.

The Mirror receives no money from the victory. Mr. Boylan is entitled to attorney’s fees.

But Mirror Publisher Tim Crews thinks that this effort will show “a certain lack of regard for how ordinary Californians struggle to keep afloat and the absurd idea that grandiose furnishings and surroundings somehow advance the interests of justice. We think it will show how money was spent and who was employed.

“We do not think there is any problem with local workers and providers but we do wonder at the large quantities of money directed out of county. Also, we haven’t seen evidence of estimates or any sort of shopping for the best deal. One also wonders why things like motorized remote control blinds are necessary in a tiny office.”

Valley Mirror City Editor Sara Inés Calderón called the local court and left a detailed message asking if Ms. Burkhart had a comment on the ruling granting The Mirror's petition for a writ of mandate and when can the newspaper expect the detail documents.

By press time, we had no answer.

This is the second loss to the Mirror by the Glenn County Superior Court  the issue of fiscal records. In 2003 the Third Appellate District, California Court of Appeal ruled for the Mirror in our quest for court financial documents held by Glenn County. Ms. Burkhart ordered the county’s finance chief to withhold the documents. The paper sued and the documents were released. Questionable and previously unknown spending was found.

San Diego Agencies Using Web for Transparency

OPEN GOVERNMENT -- A survey by the San Diego Union-Tribune shows local public agencies increasingly using the Internet to keep the community informed about decisions made—or about to be made—at public meetings, and how to reach key staff and elected officials.

For example, reports staff writer Anne Krueger, "Information about the business being discussed at Helix Water District meetings is now just a computer click away, with the water district joining other East County government agencies in providing more access to the public on the Web."

In addition to an agenda for last week's board meeting, the district also posted on its Web site the staff reports and backup information given to board members.

Other government agencies have been providing the information online for years, but Helix General Manager Mark Weston said security and technical issues kept the district from putting the information online.

Dexter Levy, a 71-year-old retired plumber who lives in La Mesa, said he found the online information useful as he follows the district's plans to increase its rates.

“It's going to help alleviate the perception of non-transparency,” Levy said.

The reports offer a much fuller view of the topics that a government board is considering. For example, while the Helix agenda listed a three-line item on a new rate study, the board package included a 10-page rate report, breaking down all the costs for Helix customers.

The Union-Tribune reviewed the Web sites of East County's major government entities: four cities, 10 school districts, the Grossmont-Cuyamaca Community College District and the Grossmont Healthcare District. Each site was studied to determine whether viewers could view board agendas and reports provided to board members and whether the e-mail addresses of staffers and elected officials were provided.

The cities and agencies showed varying levels of Web savviness and openness. Some had lots of easily accessible information, while others had less information or made it challenging to find.

Terry Francke, general counsel for Californians Aware, an open-government group based in Carmichael, said government agencies aren't legally required to post agendas on the Web – but they should.

“A district or city or county is well-advised to use technology to put everything in the window that it can so people are less likely to be surprised,” he said.

Government meetings in California are guided by the Ralph M. Brown Act, enacted in 1953. It requires government bodies to post their agendas and give notice of meetings at least 72 hours in advance.

Before the Internet, government agencies often complied with the act by posting their agendas on their office window a few days before a meeting. They still do that, but more often they also post their agendas on their Web sites.

Francke said he doubts the Brown Act will be updated to require Web posting of agendas because government entities – even agencies that already post the information on the Web – could then demand that the state reimburse them for the cost of complying with the law.

All of the East County cities and agencies surveyed posted their basic agendas on the Web. All but two smaller agencies – the Lakeside Water District and the Dehesa School District – also post backup reports on their Web sites.

*****

The Grossmont Union High School District also posts videos from its meetings on its Web site. El Cajon and La Mesa televise their council meetings on public access television.

All of the East County government entities provide e-mails for staff members, with some offering individual e-mail addresses for department heads and others providing a general e-mail address for the agency.

Steve Van Zant, superintendent of the Mountain Empire Unified School District, said he gets four or five e-mails a week from parents.

“It's a good way for people to track me down, to find me and let me know what they're thinking,” Van Zant said.

*****

The Otay Water District is the only water district in East County that provides individual e-mail addresses for its board members on its Web site. The Helix district provides an e-mail address for the board but not for individual members. Helix Board President Richard Smith said he prefers having the board secretary pass on e-mails from constituents.

“She could contact us, and we would have the option that we would respond or not,” Smith said.

Otay's Web site also provides e-mail addresses and phone numbers for all of its supervising employees. In addition to staff reports, it includes PowerPoint presentations to be given at meetings.

“The principle we were after in the design of our Web site was transparency,” said Geoff Stevens, Otay's chief information officer. “We wanted to make it as easy as possible for people to get information about the district.”

Web Design for Stimulus Site: A Moving Target

OPEN GOVERNMENT -- Web-design firms bidding on a contract to revamp the official stimulus-tracking site Recovery.gov face the challenge of building a prototype that must comply with unpredictable content requirements, according to procurement specialists and information access academics, reports Aliya Sternstein for Nextgov.com.

"There is a big question about how the front end of Recovery.gov actually connects to a back-end reporting infrastructure," said Eric Kansa, executive director of the information and service design program at the University of California-Berkeley School of Information.

In October, agencies will be required to start transmitting reports from stimulus fund recipients to Recovery.gov, which is maintained by the Recovery Accountability and Transparency Board. But the details of what will go into those reports and the technologies that will collect information have not been finalized.

A request for proposals for the Recovery.gov redesign obtained by Nextgov acknowledges that Obama administration guidance on reporting requirements will expand. "Flexibility will be required [of contractors]. I think that's a good thing," Kansa said.

*****

The RFP tries to satisfy open government advocates by recognizing the public's preferences could change.

"Public expectations of openness and transparency, coupled with explosive advances in technology and multichannel communications mean that standards that may have fully met the public's expectations yesterday, may fall well short tomorrow," the solicitation stated. "The offeror shall provide the government a process to add functionality to meet new paradigms, as they are defined."

Agencies, too, will have to be flexible in meeting the demands of the new site, said Stan Soloway, president and chief executive officer of the Professional Services Council, a contractor trade group. The costs of changing the rules in the middle of the game are unknown, he added.

"The unavoidable reality is that we are going to be changing practices even as the stimulus work is going forward," Soloway said. "The answer I don't have is [whether this] is a cost-effective way of doing it."

City Attorney's Concerns about Facebook Use

OPEN GOVERNMENT -- What could be more open than Facebook?  And yet a city attorney is warning city officials about using that forum for discussions of official business.

The warning comes from Florida, but as is evident in this memo from Fort Lauderdale City Attorney Harry Stewart to his city council, it addresses many of the same concerns that would arise in California.

Florida’s Sunshine Law applies to a formal or informal gathering of two or more members of a public board or commission to discuss some matter on which foreseeable action will be taken by the board or commission. The three basic requirements set forth in Section 286.011, F.S. are (1) meetings of public boards or commissions must be open to the public, (2) reasonable notice of such meetings must be given and (3) minutes of the meeting must be taken promptly and recorded. The AG notes that though the Sunshine Law does ordinarily apply to meetings of two or more members, because the Florida Supreme Court has stated the law is to be construed “so as to frustrate all evasive devices”, the physical presence of two persons is not always necessary. See also: AGO 89-39, in which the AG opined that private discussions via email between board members about board business is prohibited under the Sunshine Law. That Opinion analogized the use of such private email discussions to private telephone conversations or the exchange of written memoranda between two or more members on topics to come before the board– all of which conduct is regulated and prohibited by the Sunshine Law.  See also: AGO 08-07, in which the AG’s office concluded that use of a website blog or message board to solicit comments from other members of the board or commission by their responses on issues that would come before the board triggers the Sunshine Law.

The AG warns that “while there would not appear to be a prohibition against a board or commission member posting comments on the city’s Facebook page, members of the board or commission must not engage in an exchange or discussion of matters that foreseeably will come before the board or commission for official action.” (AGO 09-19).
Engaging in an exchange of ideas or discussion on such matters is a slippery slope – and comments made on the site by one member in reaction to the letters, emails or personal postings of another member may be broadly construed as such an exchange or discussion and thus constitute a violation of the Sunshine Law.  See also: AGO 01-21, in which the AG noted that although the preparation and distribution of individual city council members’ “position statements” is technically in and of itself not a violation of the Sunshine Law, to the extent the position statement is a response (or construed as a response) to another members’ statement, it violates the Sunshine Law and thus is problematic and strongly discouraged. The AG concluded that the best practice is for each member to discuss his or her position in the context of an open meeting.

Similar concerns regarding record retention and Sunshine Law violations would abound in the undertaking of a personal website by a Commissioner if information on the site fell within the definition of “public records” as defined in Florida Statutes and caselaw.

The memo also comments on the publlic information and records retention consequences of citizens' FaceBook visits to the city's official page.

The Florida Attorney General’s Office recently released Attorney General’s Opinion (AGO) 09-19 dealing with the creation of municipal Facebook pages and the implications this would have under Florida’s Public Records and Sunshine laws. Facebook is a social networking website on which users create profiles, interact with one another in real-time and are able to build networks of “friends”. The analysis contained below is also applicable to participation by the City or individual public officers in websites and blogs generally. We felt it important to share this with you as the advent of new technologies, and the desire to participate in them, bring about new issues relative to our duties under Florida law.

Public Records Law

Section 119.011(12), Florida Statutes, defines “public records” to include:

All documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency.

The AG opined that a municipality may create a Facebook page if it finds there is a valid municipal purpose. The Opinion, relying on the Florida Supreme Court’s interpretation of a public record encompassing all material made or received by an agency in connection with official business and used to perpetuate, communicate, or formalize knowledge, went on to say that indeed information on a municipality’s Facebook page would most likely constitute a public record under the law – but such determination would need to be made based on the information posted on the site.

As for the “friends” that are part of this site, whether or not the content of their postings and their pages are deemed public records would also be a determination based upon whether or not the information contained therein was made or received by an agency in connection with official business. Because of the likelihood that such information would be deemed public record, the AG suggests posting a warning on a municipality’s Facebook page regarding the implication of public records law on the material posted and shared by “friends”.

Public records law also imposes a duty of disclosure and retention upon every person who has custody of a public record. Custody has been described as having “supervision and control over the document or hav[ing] legal responsibility for its care, keeping or guardianship.” (AGO 08-07).

Maintaining such a Facebook site, indicating that the City is aware of and has approved the content, places responsibility on the City to ensure the records are maintained in accordance with public records law as well as the General Retention Schedule GS1-SL for State and Local Government (providing retention periods for administrative records).

Though the AG’s Opinion asserts information contained on the Facebook site and deemed a public record would have to be retained in accordance with the GS1-SL schedule, as this is a new technology in the eyes of the law, it is wholly unclear what the applicable time period for retention would be as the GS1-SL does not specifically address website content. Indeed, the recommended retention periods could vary based on the content.

There exists an ancillary, though important issue, of whether or not the City even has the technological capability to retain the content of the Facebook site. The City does not have ownership, control or affiliation with this site and research would need to be done to determine if City retention is even possible technologically and financially.  See also: AGO 08-07, in which the AG opined that an individual council member who created posted comments and emails on a website for which the council member served as webmaster was responsible for ensuring that the information was maintained in accordance with both public records law and the policies and retention schedule of the City where the City had no ownership, control or affiliation with the website.

(Hat tip: Kimo Crossman)

Immigration Judges Respectful—When Watched

OPEN COURTS -- Jacqueline Stevens, an associate professor in the Law and Society Program at the University of California, Santa Barbara, reports in The Nation, "You don't need to go to Iran or North Korea to find secret courts. They're alive and well right here in the United States."

On March 26, 2009, I was denied access to immigration courts in Eloy and Florence, Arizona, even though a federal regulation states, "All hearings, other than exclusion hearings, shall be open to the public" with a narrow range of exceptions—none of which were cited as a reason for excluding me.

I'd heard horror stories about mass hearings and the humiliation of detainees by Immigration and Customs Enforcement (ICE) attorneys and judges, and I wanted to see for myself. But a guard told me only family members or attorneys could be admitted. An attorney in the lobby affirmed the legality of my request and invited me to attend his hearing. After waiting forty-five minutes and missing his hearing, I was told by the head of security to go to my car and call Eloy's ICE office. That's when I learned that detention centers across the country were restricting public access to immigration courts.

*****

In an interview, Representative Zoe Lofgren, a California Democrat and chair of the House subcommittee overseeing immigrant rights, expressed concern about the public's exclusion from immigration courts in detention centers. "A federal regulation requires proceedings to be open. The public has a right to attend these hearings under this regulation and any limit of this is in violation of this regulation," with the exceptions, Lofgren noted, of restrictions imposed at the discretion of the judges—for asylum claims, cases of sexual abuse or at the request of the respondent.

The Executive Office of Immigration Review (EOIR), an agency in the Department of Justice charged with managing immigration courts, reports that in 2008 its judges decided 134,117 deportation cases, of which 48 percent were for detainees. The individuals facing deportation hearings in these remote sites—far from their families, indigent and without attorneys—are the most legally fragile population in the country. The least the government can do is follow the law and allow public access to the courts. ICE is physically barring entry into the immigration courts in detention centers, but the real culprit is the EOIR. If that agency, under the Department of Justice, cannot arrange to allow the public into immigration courts in detention centers, then the Justice Department should house the courts in other facilities.

*****

Mary Naftzger, a member of the Chicago New Sanctuary Coalition who frequently attends immigration hearings, said, "We have feedback from lawyers who say the judges are more respectful when court watchers are there." She explained that most of the respondents do not have attorneys and that judges ask them questions en masse "rather than examine their cases individually, a practice that changes once the court watchers arrive."

Journalist: It's Not the Tab Size, It's the Table Talk

OPEN MEETINGS -- Marsha Sutton, a freelance writer covering education issues in San Diego County, says on SDNN.com that she's "struggling with this pseudo-controversy" about how much public funds school officials spent on a Washington, DC dinner recently.

Sutton notes that San Diego Unified School District superintendent Terry Grier spent $350 on a dinner for himself, two others from his staff, and three school board members.

The six were in D.C. on school district business, and this $350 dinner, along with other travel expenses, may have been charged to the wrong accounts. Specifically, Grier may have dipped into a pot of federal money meant exclusively for low-income students, to pay for his travel expenses and lobbying efforts. The amount in dispute is reportedly about $2,000.

No question that the $2,000 needs to be charged to the correct account. But some perspective is needed. Two thousand dollars is less than .001 percent of the district’s total budget.

Yes, I understand - $2,000 here, $2,000 there, and pretty soon it adds up to real money. And there is the principle of the thing, to be sure.

But the bigger problem that shouts out at me is that we have three trustees sitting around a dinner table with their superintendent, all discussing … what? What are they discussing?

What could they possibly be talking about but school district business? Unless they are incredibly gifted at self-surveillance and friendly restraint, they’ve got to be gabbing—at least in part—about their schools, budgets and education policy.

*****

So I’m less troubled by the measly cost of this dinner tab than I am by the fact that three trustees and a superintendent were all sitting at the same table at the same time—presumably without public notification. And unless they were discussing gardening or the weather, they just shouldn’t do that—no matter who is paying the bill.

Purchase Option Leads to Brown Act Challenge

OPEN MEETINGS -- A local residents group today threatened a lawsuit if the City of San Juan Capistrano does not withdraw from plans to buy 116 acres of open space now owned by Crystal Cathedral Ministries, reports the Orange County Register.

Under a plan announced in January, 170 acres of Rancho Capistrano in northwest San Juan would be split in three. The city said it is prepared to spend $10 million for 116 acres. Continuing Life Communities would buy 34 acres to develop an upscale assisted living/retirement community. Crystal Cathedral would keep 20 acres for a retreat and chapel.

Three residents sent a letter to the city attorney today alleging that the purchase agreement, which gives San Juan the option to buy its portion of the property, was drafted in violation of California's Ralph M. Brown Act, which requires that public business be conducted in open meetings.

The residents are former Mayor Roy Byrnes, aerospace engineer Jim Reardon and Kim Lefner, who was active in the recall of two Capistrano Unified School District trustees in 2006.

"This (purchase agreement) was never on the agenda of any public session of the City Council, the RDA (Redevelopment Agency) board or the city's Open Space Committee … at any time prior to the Jan. 20 meeting," the letter states. "Far from being a technicality, this is an egregious violation of (the) law."

Mayor Mark Nielsen said the letter represents a "misunderstanding or mischaracterization."

"This whole project is just in the beginning phases," he said. "This project still has to go through all the public hearings, all the public discussion and dialogue. The statements of fact in that letter are incorrect. Nothing was hidden."

The actual acquisition of land would take place over the next four to five years, according to a city announcement in January. However, the option agreement pulled the land from the open market.

The Brown Act provides that those seeking court action to nullify unlawfully secret decisions must first send the suspect government body a written notice spelling out the alleged violation of the law and demanding a cure and correction.  If they fail to do so within a certain deadline—in this case 90 days from the date of the challenged decision—they cannot go to court to have the decision undone.

Court Strikes Most Defenses in Student Paper Case

FREE PRESS -- High school students and their faculty advisor on the school newspaper convinced a federal judge in San Diego to strike most of the affirmative defenses raised by their school district in a lawsuit over a principal's decision to shut down the newspaper over content disputes, reports Scott Clines for Courthouse News Service.

During the 2007-08 school year, Fallbrook High School seniors Chantal Ariosta and Margaret Dupes wrote articles for the student paper, The Tomahawk. Ariosta's article was critical of former Fallbrook Union High School superintendent Tom Anthony's refusal to comply with a fire marshal request to close Fallbrook High School for use as an evacuation center during the wildfires of October 2007.

Dupes wrote an editorial that critiqued the Bush administration's abstinence-only sex education policies and a supporting rally held at the school that year.

Fallbrook High School principal Rod King ordered the articles removed shortly after they were published.

Teacher David Evans served as the faculty advisor to the journalism class and the student paper. In June 2008, he complained to the school district's president about King's actions in removing the articles.

The next day, King met with Evans and expressed his displeasure over Evans' conversation with the school district president. During this meeting, King informed Evans that the journalism class was canceled and The Tomahawk would no longer be published.

Evans, Ariosta, Dupes and a third student editor named Daniela Rogulj, along with two other students who planned on taking the journalism class before it was canceled, filed suit against the school district and King. The lawsuit alleges violations of California law and federal constitutional violations, including violations of the First Amendment.
 

Legislature Will Provide a Copy of Its Bill Database

PUBLIC INFORMATION -- Settling a lawsuit with political watchdog and open records groups, state officials have agreed to provide a computer database for tracking thousands of legislative votes, reports Peter Hecht in the Sacramento Bee.

The state also agreed in the Sacramento County Superior Court settlement to pay $65,000 in attorneys fees to the California First Amendment Coalition and MAPLight.org.

The groups charged that the state legislative counsel's office violated California's open records law by refusing to hand over its computer database for all bills introduced in the state Assembly and Senate.

While individual bills can be tracked on-line, the organizations said they wanted access to the full computer data base to undertake sophisticated searches tracking campaign contributions and lawmakers' votes on multiple bills.

Newspapers Want Public Workers' Pension Data

PUBLIC INFORMATION -- The Contra Costa Times, the Los Angeles Times and the California Newspaper Publishers Association will fight a legal move by a retired Contra Costa County sheriff's deputy to block the release of pension data, reports Lisa Vorderbrueggen in the San Jose Mercury News.

The newspapers seek to preserve gains the industry made in a successful case brought by the Contra Costa Times in 2007 in which the California Supreme Court ordered public agencies to disclose as public information the names and salaries of employees.

In conjunction with its intervention in the recent court action, the newspaper organizations also filed a Public Records Act request with the Contra Costa County Employees Retirement Association for the names of retirees whose gross monthly pension benefits exceed $8,333 in any month in 2009, retirement dates, records of pay and formulas used to calculate retirees' pensions.

The legal battle over whether or not names and pension amounts of retirees is public information began in May when retired Contra Costa sheriff's Deputy Donna Irwin filed a petition for a restraining order in Contra Costa Superior Court to block a request for the data by a taxpayer group.

The California Foundation for Fiscal Responsibility, a pension reform watchdog group, had requested the data as part of a statewide effort to request the names and pension amounts of former county employees who collect $100,000 or more per year.

The organization views the data as a key public education component of its campaign to alter the public employee retirement system.

Reporter Subpoenaed by Military Defendant

FREE PRESS -- A military judge has ordered a news reporter to obey a subpoena and testify in the case of a Camp Pendleton Marine who is facing a court-martial for an interview he gave over the handling of classified material, reports Greg Moran for the San Diego Union-Tribune.

In a 12-page ruling released Monday, Cmdr. Kevin O'Neil said the rights of the accused, Pvt. Gary Maziarz, to a fair trial outweigh the First Amendment rights claimed by Rick Rogers, a reporter for The San Diego Union-Tribune.

Maziarz is facing a charge of willfully disobeying a direct order. Prosecutors say he was under orders not to discuss his role in a ring of Marines who passed top-secret intelligence files on individuals under surveillance to a Los Angeles civilian law enforcement agency.

In 2007, Maziarz pleaded guilty to mishandling classified material and theft of government property and was released from the brig last July. Afterward, Rogers interviewed him for a story that was published in November 2008.

In a subsequent story, Maziarz said he had not been ordered to stay away from the news media and that his lawyer then, appointed by the military, approved his speaking with the newspaper.

Maziarz's new lawyer says Rogers' testimony about his conversations with Maziarz seeking the interview is needed to rebut the charge that he “willfully” disobeyed the order.

California law, which does not bind a military court but which could provide an argument supporting the subpoena under these circumstances, holds that even a strong journalist's shield law like that of this state may be trumped where the subpoenaed information

• is sought by the defendant in a criminal trial; and
• is not available from another source (or from one as neutral as the journalist); and
  
• is important as evidence for the defendant's case; and
  
• would not disclose a confidential source; and
• where its compelled disclosure would not make the journalist's job more difficult in the future.

The rationale: the defendant's federal Sixth Amendment right to a fair trial—and "every man's evidence"—supersedes a state constitutional right like California's shield law for journalists.

Somewhere, George W. Bush May Be Smiling

OPEN GOVERNMENT -- If you've had the increasing impression that President Obama has been backsliding more and more on his campaign and early post-inaugural commitments to governmental transparency, Glenn Greenwald provides a sobering summary of milestones along this retreat.

Greenwald's piece for Salon.com also includes a video version of his report  from today's Democracy Now program with Amy Goodman.

In effect, every week it gets harder to see much daylight between Obama policies and practices on disclosure of information and open government generally and those of the Bush/Cheney Administration, which many if not most observers at the time called the most secretive in modern U.S. history.

Looked at one by one, some of counter-transparency policies might be excused or at least explained by Administration apologists as:

• a desire to show some responsible continuity in executive branch positions on matters already in the courts, or
• an unwillingness to alienate more members of Congress than necessary while big and controversial administration priorities like recession-fighting, financial regulatory reform, health care reform, environmental and energy policy reform etc. are still pending, or
• a reluctance to demoralize or alienate career operatives in the intelligence agencies, or
• a reluctance to provide terrorists with photographic or other documentation of hard-to-defend U.S. behavior in the shadow war or the literal combat theaters since 9/11.

But the White House visitor's log?  That may be what did it for Greenwald.

(Hat tip to Kimo Crossman.)

New Freedom for the Press, If Not the Staff

FREE PRESS -- As a remarkable departure from the general decline of inmate-written and edited newspapers in recent decades, the San Quentin News is born again, reports Michelle Locke for the Associated Press.

The revival of the News last year, after a hiatus of nearly two decades, goes against a national trend of shrinking prison journalism, said James McGrath Morris, who wrote about the penal press in his book "Jailhouse Journalism."

"San Quentin is sort of like a flower coming up in a barren garden," he said.

Lt. Rudy Luna, the program sponsor, said it is not clear why the San Quentin News quit publishing, but the impetus to restart it last year came from then-Warden Robert Ayers. The plan was to teach inmates skills and keep the community informed.

"A lot of the issues with inmates are just lack of information and by putting that information out and telling them we have programs available, maybe we can bring them on board," said Luna.

Being an inmate reporter means unique challenges — no direct access to the Internet, no ability to make a quick phone call or send an e-mail. It also means having thousands of potential critics living right next to you.

DoD Doctrine: Protest = "Low Level Terrorism"

FREE SPEECH -- The men behind newly re-elected President Ahmadinejad of Iran would agree with the Pentagon on one point at least: protest is just another word for low-level terrorism. 

According to current Department of Defense anti-terrorism training course material, what many would call the exercise of First Amendment rights constitutes terrorist activity, reports Dennis Loo, Professor of Sociology at Cal Ply Pomona, on OpenSalon.com.

The Department of Defense is training all of its personnel in its current Antiterrorism and Force Protection Annual Refresher Training Course that political protest is "low-level terrorism." 

The Training introduction reads as follows:

"Anti-terrorism (AT) and Force Protection (FP) are two facets of the Department of Defense (DoD) Mission Assurance Program. It is DoD policy, as found in DoDI 2000.16, that the DoD Components and the DoD elements and personnel shall be protected from terrorist acts through a high pirority, comprehensive, AT program. The DoD's AT program shall be all encompassing using an integrated systems approach."

The first question of the Terrorism Threat Factors, "Knowledge Check1" section reads as follows:

Which of the following is an example of low-level terrorism activity?

Select the correct answer and then click Check Your ANswer. 

O   Attacking the Pentagon

O   IEDs

O   Hate crimes against racial groups

O   Protests

The "correct" answer is Protests.

A copy of this can be found on the last two pages of this pdf.  The ACLU is, well, protesting this item in a recent letter.