Cloudy California

The state's open-government laws have eroded to the worst level in 50 years – but the sunshine forces have a bold new plan to fight back.

By Savannah Blackwell

DEBBIE ACKER WAS shocked when Ontario city manager Greg Devereaux told her she couldn't see a consultant's report that might help the town near Los Angeles attract more air-cargo business to its airport. After all, she figured, the document was a public record – and Acker is a member of the Ontario City Council, which had paid for the study.

"As a public official, it is unfathomable to me that staff could have 15 copies of a report and refuse to give me a copy of it," said Acker, the only woman on the Ontario council and one of the few ever elected to that post. "I feel like I'm dealing with the good-ol'-boy network here."

For his part, Devereaux claimed that giving Acker the report would impede government business. The Los Angeles Times quoted him and two other members of the council saying that releasing what he called a draft report would "put a chilling effect" on consultants and staffers, whose initial thoughts might end up in the press.

Acker's frustration is hardly unusual. She told us the controversy over the air-cargo study is only one among many examples of Ontario officials making it difficult for her to get information she needs to make solid decisions, even as an elected official. And unfortunately, Ontario isn't unusual, either: all over California, citizen watchdogs are facing enormous problems getting access to public meetings and public records.

In fact, experts say, California, once considered a model for open government, is now among the most secretive states in the nation. "California at both the state and local levels has about the dimmest level of sunshine of any state in the U.S.," said Terry Francke, general counsel to the California First Amendment Coalition (CFAC).

"It's becoming dimmer and dimmer for a state that had two laws passed many years ago with preambles that are just downright eloquent in establishing the purpose and reason for people to have access," added Mel Opotowsky, former managing editor of the Riverside Press-Enterprise, a CFAC board member, and one of the state's veteran sunshine advocates. "It's been shot through with exceptions. There was a period when if you won against the [agency], you would get your attorney fees paid for – but now they even fight that. It's gotten harder and harder to fight."

Experts say that, in California, the public's ability to find out how its representatives are making decisions is as limited now as it was before the Ralph M. Brown Act, which established the right to attend government meetings, was passed in 1953.

Officials are tossing reporters out of meetings. Agencies are withholding studies on the basis that they are in draft form or are too technical for public consumption. Big-money contracts with private companies (including, most notoriously, energy companies) are kept out of the public eye. And it's really difficult for anyone to see notes that would reveal how a policy was put together – especially records of the ideas that ended up on the cutting-room floor.

Thanks to years of adverse court decisions and a governor who is hostile to public records legislation, California's sunshine laws have eroded to the point where they barely work anymore.

Seeing the light

That's why state senator John Burton, at the urging of CFAC, the Society of Professional Journalists (SPJ), and the California Newspaper Association (CNPA), in January 2001 proposed a state constitutional amendment that would, for the first time, make access to government information a fundamental right of the people of California.

Other states have already seen the light: the people of Florida, Louisiana, Montana, and New Hampshire have similar protections in their constitutions.

The wording of Burton's SCA 7, which was coauthored by Assemblymember Kevin Shelley (D-San Francisco), is simple, but the change would be dramatic. If Burton's bill passes, public officials won't be able to get away with "just saying 'no.' "

What SCA 7 would do, in essence, is shift the burden of proof: A member of the public who asked for information wouldn't have to make the case that the records were public. The official in charge of the records would have to make the case that they weren't.

In fact, public agencies would not be allowed to withhold information unless they could clearly explain exactly how releasing it would cause serious harm to the public – and prove that no other alternative to withholding the information existed. (Burton put it in these terms: "The burden should be on the agencies to explain why they keep this stuff secret.")

"If this passes, and it were perceived that providing all these factual justifications of what harm would result would be a grand pain in the neck, then if I were an administrator, I'm going to save my need to explain harm for only those cases where I have a really convincing argument," Francke said. "I would change my reflex from 'no' to 'yes.' "

And since the protection would be a constitutional right, any court faced with considering a denial as a result of a lawsuit would have to consider the facts with that in mind.

"By putting the right of access [in the constitution], we will elevate that right, and it will overlay every statute that attempts to take away access," Tom Newton, the general counsel for CNPA, told us. "We think it is going to be a great benefit."

The proposed amendment would also protect the public's right to attend and speak at meetings of any governmental organizations. It wouldn't jeopardize an individual's right to privacy (unless personal information was key to determining whether the person was fit for government office), and it would exempt information that would harm public safety, "the fair administration of justice," or the government's ability to protect public coffers and resources. Francke told us the bill would apply to government records the same approach that is currently used for getting access to court records. In 1980 the U.S. Supreme Court determined in Richmond Newspapers v. Virginia that the First Amendment provides a basis for access to court proceedings. By extension, Francke said, the First Amendment provides a right to government proceedings and records. The amendment would make it harder for government workers like Devereaux to withhold reports from concerned officials like Acker, Francke said. And that's really important.

"Most people don't pay attention to government day to day except when it bites into their freedom in some dramatic way," Francke said. "But they should know that the people who are watching government closely, the activists, the people in political life, the press, and those who blow the whistle, they are going to have a much easier job [if SCA 7 becomes law]. The people who are watching for the first hint of smoke will smell it a lot quicker than they can now."

Locking the doors

The move to put public access in the state constitution comes at a critical time. All over the country, from the federal government to the smallest of agencies, public officials are locking the door on documents and other kinds of materials critical to the public's ability to determine what's really going on and how decisions are made that affect their daily lives. Seventeen states are proposing to curtail the public's access to documents, ranging from information about hazardous-materials storage to blueprints of public buildings, in the name of national security. Attorney General John Ashcroft has announced that his office will back up any government agency's efforts in turning down a Freedom of Information Act request if he believes there's a legitimate reason for doing so. Meanwhile, the Bush administration refuses to turn over records of Vice President Dick Cheney's meetings with Enron and other energy companies – even though it's another government agency that's demanding them.

"You can hear the doors clanging right now, because every custodian of records is going to go in and say, 'Oh my gosh, if I release x, then some terrorist can do y,' " said Alice Lucan, a Washington, D.C., attorney who specializes in advising newspaper groups, including the Association of Alternative Newspapers. "If you're going to close a record, you better identify the record and then describe why it's dangerous to release it."

In California existing statutes have not stopped government officials from conducting business in secret and keeping information away from prying eyes. For example, it took a leak in former insurance commissioner Chuck Quackenbush's office for information about how he was dealing with insurance companies after the Loma Prieta earthquake to reach the public – even though state senator Byron Sher tried to get those documents using the California Public Records Act. And Controller Kathleen Connell was forced to post copies of the state's multibillion-dollar energy contracts on her own Web site after Gov. Gray Davis refused to obey a court order to do so (see "FOI Winners," page 24).

"I'd say the Brown Act has been litigated and amended to death," David Little, editor of the Enterprise-Record in Chico told us. "There needs to be a constitutional guarantee that public access to public bodies is unfettered at all times."

Little should know. In January school district officials threw one of the Chico daily paper's reporters out of what Little and Francke believe was legally a public meeting.

Officials with the Chico Unified School District had decided to put together a 29-member team formed of district teachers, administrators, and concerned parents tasked with formulating a "strategic plan" – a sort of general policy to guide district officials over the next 5 to 10 years. The district's board approved a $368,000 budget to cover the process. The three all-day sessions were to be held on city property, and Enterprise-Record reporter John Michael was told by the coordinator that the meetings were open and that he could attend.

At the first session, on Jan. 9, Michael didn't have any trouble sitting through a couple hours of discussions. But the next day, when the group started to talk about the district's weaknesses, he was suddenly informed by Superintendent Scott Brown and the team's facilitator, Howard Feddema, that he had to leave. When Michael came back the third day, board president Ann Sisco stopped him at the door and told him to stay out.

Feddema said he feared the participants would not speak candidly if a reporter was present, according to a Jan. 12 article in the Enterprise-Record. (Fear of embarrassment is not a protected exemption in SCA 7.) The district's attorney, Gregory Einhorn, insisted that the planning team's meetings were not subject to the state's open-meeting law. The paper's attorney, Rachel Matteo-Boehm, demanded that the district reverse its position and turn over any minutes or tape recordings of the sessions, and Little threatened to sue.

"One concern of theirs is they feel in a room with 29 people and one reporter that some people will clam up and some people might play to the reporter," Little said. "In the process they forgot what the law is. It's important because they told us they would give us a synopsis and tell us what went on. But I don't trust them."

On March 4 district officials relented, but they didn't admit they'd done anything wrong. Instead, Brown told the paper he just didn't want to slow the process down. That means Little will likely run into similar problems and have to call on the paper's lawyer again – unless SCA 7 is passed.

"A constitutional amendment means an average person doesn't have to spend thousands of dollars to hire a lawyer," Little said.

Francke told us that the situation in Chico provides a good example of why SCA 7 is needed. Even though the Brown Act most likely should have applied, the district isn't getting the point. Furthermore, if SCA 7 had been law and the meetings had been held in private, the very document the planning team produced would have to have been declared invalid, Francke said.

This is the same school district that conducted a performance evaluation of the superintendent at the home of one of the school board members, in private. Devanie Angel, an associate editor at the Chico News and Review, which blew the whistle on those private meetings, said SCA 7 would especially help in smaller towns where officials don't understand the importance of open-meeting laws.

"There's some ignorance of the law here. The way it shakes down when there's an issue like this is that the reporter being there will prevent discussion from unfolding naturally, and the children won't get the best service," Angel told us. "They act like serving the children is much loftier than some silly rule that's out there."

But even in cosmopolitan areas, officials seem to have trouble sticking to conducting the people's business in public. In Los Angeles, for example, the Los Angeles Times reported March 8 that the county Board of Supervisors met in secret to instruct its attorney to squash a ballot measure that would raise the salaries of low-paid health care workers. Reporter Evelyn Larrubia wrote that she found out about the board's move when the county accidentally attached documents dealing with the matter to a denial of a public records request. The situation is so bad in L.A. that CFAC president Richard McKee wrote in the Daily Journal, "Violations of the state's open government law have grown, festered and become a part of government culture in Los Angeles County like a viral infection in need of a vaccination."

Private interests, private records

Ventura County's efforts to revitalize its Fisherman's Wharf near Oxnard have resulted in a dangerous precedent – the privatization of decision making on the release of documents.

The shops, galleries, and restaurants located at the Channel Islands Harbor have fallen into disrepair, along with the marina. After years of trying to get the private companies that lease the land to fix the place up and get new businesses in, the county is negotiating to take back the leases as part of a master plan to transform the wharf into an upscale tourist destination.

But as part of the negotiations to repossess the land, the Ventura County Board of Supervisors agreed Feb. 26 to an unusual "confidentiality agreement" with Channel Islands Harbor Investment Co., the current landlord of the shopping center. That agreement allows county officials to examine the investment company's financial records – but leaves it up to the private company to decide what documents may be released if a member of the public requests them.

It even calls for the investment company to pay for the county's defense, should someone sue to see the records.

"They've abdicated all responsibility here," said Lee Quaintance, a director with an environmental group called the Beacon Foundation.

The Beacon Foundation has taken a keen interest in the county's plans for the waterfront and objected to the confidentiality agreement. "To put the question of whether to disclose information into the hands of a private party is a great delaying tactic," Quaintance said.

Lyn Krieger, the director of the Ventura County Harbor Department, told the Ventura Star that the deal is a "standard procedure" that will allow the county to interview the investment company's tenants and figure out the financial situation of the property.

The Bay Guardian ran into a similar situation in spring 1999, when the city of San Francisco prevented the paper from getting access to key financial records that would have shown if the city's monopoly towing contractor, City Tow, was performing its job adequately. Essentially, the city argued in court that it had to protect the rights of the private contractor – instead of the rights of the public (see "Car Carrion," 4/19/99).

Burton's bill would make it clear to Ventura County and San Francisco officials that they cannot shirk responsibility for providing information to the public, Francke told us.

"SCA 7 would strengthen the notion that the responsibility lies with the government in making a determination," Francke said. "Probably the [Ventura] agreement itself would be unconstitutional under the amendment."

Foundation secrecy

Natalie Connelly, a student at San Francisco State University who was writing for the campus daily, the [X]press, was on to a juicy lead early last year. Workers at the school had informed her that SFSU president Robert Corrigan had made university workers install a $20,000 alarm system that included 24-hour camera surveillance for his home. Worse, it appeared he used university funds to pay for the work. The sources slipped her purchase orders clearly indicating that at least some of the cost of the system was paid for by the university.

When she and fellow reporter Marcos Mocine-McQueen (who won last year's SPJ FOI award for student journalist) asked Corrigan to confirm that the school paid for a fancy alarm system for his personal use, he came up with different stories of where the money came from. First he said the university paid for it. Then he said a private foundation (the San Francisco State University Foundation) loaned him the money. That version was confirmed by university police chief Kim Wible, who claimed six weeks after reporters first sought comment that she had encouraged the president to install the system because she was worried about his safety. She also said the foundation had paid for the system. But she refused outright to provide documents proving this was the case. In addition, SFSU officials withheld information showing what work was done on the system. Their dubious claim: release of the documents would not serve the public interest.

SCA 7 would have changed the SFSU situation in two ways. First, SFSU officials would not have been able to get away with the "public interest" excuse for keeping the information secret. Second, SCA 7 would likely have helped the public gain access to records held by the foundation, whose representatives have consistently claimed that it is a private outfit that does not have to release any kind of detailed information about its finances and other activities.

That's because SCA 7 applies to "anyone acting on behalf" of any public body or agency, Francke said. The foundation gives out grants and performs other functions key to university life.

"It is quite possible that these college and university foundations would find themselves subject to the same rules," Francke said. "At any rate, [SFSU officials] saying this information was held by the foundation alone would not end the story."

In fact, Francke said, SCA 7 could go a long way toward addressing the larger problem of foundation secrecy – something that activists in San Francisco have been struggling with for years. Nonprofits that distribute public money – for example, many of the nonprofits handling city AIDS money – could be subject to greater sunshine under SCA 7.

"The privatization of government – whether it be power, water à la Bechtel, or basic social services – is a continuing trend," said equal benefits advocate Jeff Sheehy, who was part of a team of activists that fought to force nonprofits that received public money to open up some of their board meetings to the public and provide some information about their finances to the public. "This is important, because you need to have the same level of scrutiny when these services are being delivered on behalf of government with taxpayer dollars as you have with government."

E-mail Savannah Blackwell at savannah@sfbg.com.