By Rachel Brahinsky

WHO CONTROLS THE best-funded, most consistent proponent of government secrecy in California? It's not Gov. Gray Davis, the energy and insurance companies, or even the prison guards.

No, the most powerful lobby that fights freedom-of-information and open-government laws is an alliance of three nonprofit government associations whose operating budgets come almost entirely from taxpayer dollars. Over the years they have emerged as a secrecy lobby – a publicly funded operation that aims to keep the public in the dark.

The key players are the League of California Cities, the California State Association of Counties (CSAC), and the Association of California Water Agencies (ACWA). San Francisco pays a total of more than $206,000 annually in membership fees to the three groups.

Others that sometimes join in the fray against open government include school board associations, municipal sanitation, power, and water agencies, and sheriff's departments, along with some private industry representatives – but for years CSAC, the League, and ACWA have led the pack (see "The Secrecy Lobby," 3/4/87).

In the past, big cities like Los Angeles, Sacramento, San Diego, and San Francisco were part of the secrecy lobby. These days, insiders tell us, the cities don't play much of a visible role.

As lawmakers spar over whether the public should be able to listen in on negotiations over property sales, whether citizens should have the right to appeal to the state attorney general when local agencies withhold public information, and whether information discussed in closed session should be revealed afterward, the secrecy lobby has become a predictable, consistent force against open government.

In fending off efforts to open up more government deliberations and attempts to make public records more easily available, secrecy lobby representatives say they're defending their members' interests and looking out for the good of the public. Staffers we talked to at the three key groups emphatically denied that they're working to specifically squash public access to information. Yet they were also at a loss when we asked for any example of a pro-open government bill that they had actively promoted.

And in fact, FOI advocates say that on every significant freedom-of-information bill in the past several years, the secrecy lobby either blocked or refused to advocate for legislation that would have opened up the way government works.

"I can't recall any situation where they've actively supported making information or meetings more accessible," Terry Francke, general counsel for the California First Amendment Coalition, said.

CFAC, along with the California Newspaper Publishers Association (CNPA), both of which are based in Sacramento, are the primary advocacy groups on behalf of open-government law in the state.

"[We] respect these people. They're not sleazeballs by any means. They're not in business to promote secrecy for its own sake. But they are responsive to their members' concerns that [following open-meeting and public-record laws] is a burden, too time-consuming, or costly," Francke said. "It's not meant to suggest that our adversaries are an axis of evil; it's just that they're a pretty predictable chorus of opposition."

The result is that publicly funded agencies are actively fighting the public's right to know.

A far-reaching lobby network

It's tough enough for legislators to resist corporate lobbyists who want payback for contributions to past campaigns. But it's particularly sticky when a lobbyist that represents cities that fall within an official's own district comes calling.

"There's no question that when you're lobbied, for example, by CSAC, which represents San Francisco as a county, that clearly it's hard to just ignore them. They're the good guys," assembly majority leader Kevin Shelley (D-San Francisco), who authored San Francisco's local open-government law, told us.

Shelley, who has frequently introduced and supported open-government bills, said he's faced off against the secrecy lobby many times. This year he coauthored SCA 7, the state constitutional amendment that, if passed, would force officials to have to explain why secrecy is necessary when they deny a record to a citizen (see "Cloudy California," page 17).

As Shelly and Sen. John Burton, the bill's lead sponsor, move the legislation forward, they are likely to face opposition from the secrecy lobby. There's no official opposition yet, but none of the three main players are expected to support it.

A 'formidable force'

If the secrecy lobby actively opposes SCA 7, a wide lobbying network will be activated that reaches into every city, every county board of supervisors, and every water agency in the state.

When the League of California Cities opposes a bill, League lobbyist Amy Brown told us, "I would testify in committee. I'd do an aggressive letter-writing campaign, meet with staff, meet with members. If it were huge, I'd talk to the media, ask my membership to write letters as well, especially if they have a relationship with a [key legislator]."

The League employs five full-time Sacramento lobbyists and has also just hired 15 new staffers to act as regional lobbyists. Of the League's $8.7 million annual budget, San Francisco kicks in $82,393.

At CSAC, the group that represents all 58 California counties, and ACWA, the group that represents water agencies like San Francisco's Public Utilities Commission, the lobbying push is nearly identical. "We talk to committee members on the legislative committees in the capitol," CSAC legislative representative Rubin Lopez said. "We talk to staff and leadership if it's an issue of statewide significance, and we'll supply information."

CSAC's opinion is so valued that when the organization is neutral on a contested bill, policy makers consider it worth pointing out. "At times we're solicited by a chairman or a staff member to send a letter of neutrality," Lopez said.

CSAC's operating budget comes to $6.2 million a year; San Francisco contributes $105,000 annually, helping support CSAC's network of eight lobbyists. Allied with them on certain bills are five ACWA lobbyists benefiting from a $4.7 million budget – $19,000 of which comes from San Francisco's Public Utilities Commission.

Each agency dedicates one lobbyist to work on freedom-of-information issues, and that person generally has much more to do than work only on open-government bills. Still, the network of staff statewide can be called in on an important bill.

"It's a formidable force," said Tom Newton, general counsel for CNPA. "I sometimes violently disagree with them. I also think they are extremely well funded."

Newton said that over time he's developed a good working relationship with secrecy-lobby representatives, and because of that he sometimes wins: "I've found that this relationship is a great deal more effective when we deal with people in an aboveboard, honest way." In 1993, when CNPA and others were advocating significant changes in the Ralph M. Brown Act public meeting law, via a package of different bills, the secrecy lobby agreed to go neutral on certain bills, allowing CNPA to get some of the changes through.

"They recognized that the governor would sign the package," Newton said. "So at the end of the day, in waning moments of the 1993 legislative session, CNPA, CFAC, the League, and CSAC all kind of were in alignment. But on the other hand, if they had their choice, which they didn't, they would have seen no changes at all."

Killing bills

Every year there are examples of important legislation that the secrecy lobby has killed outright or significantly weakened.

It took Shelley five years to pass A.B. 2799, a bill that made it easier for the public to access records that are kept in electronic form. Shelley's bill created what CNPA calls a "reasonable right" of access to records such as computer databases. The law is useful for someone seeking a copy of a database of city contracts that could be sorted and reorganized to look for trends in contracting practices, for example. In the past the public agency wouldn't have to let you see the database in the form it uses. Now it has to – but it doesn't have to give you the software required to read it.

"We finally passed it, but we have to go back and fix it this year," Newton said. "It was hotly opposed by local government. They feared it."

Local governments were concerned about the cost of the bill and how much extra time staffers would have to spend – a common argument against this sort of legislation.

"For them to argue that it's an undue burden is wrong on its face," Shelley said. "It represents quite candidly a lack of their understanding of their function, which is to serve the public, not to hide themselves from public scrutiny."

Again, representatives of the secrecy lobby defend their positions: "We are all for public disclosure except when it hurts the public," the League's Brown told us. Hurting the public might include spending public dollars on staff time to deal with excessive record requests, she explained.

Two other important bills, opposed by members of the secrecy lobby, died last year. Shelley introduced A.B. 914, a precursor to this year's SCA 7. It would have switched what's called the "balancing test," putting the onus on a government agency to explain its reasons for denying a public record request.

A lobbying effort that included CSAC, the League, a county sanitation district association, the state peace officers and police chiefs' associations, and the American Insurance Association killed the idea before it could get out of committee.

CSAC's Lopez defended his agency's position, noting that as a rule, "We like bright lines in local government, showing which is the information that should [or shouldn't] be disclosed." From CSAC's perspective, Shelley's bill broke that rule.

Another bright line for Lopez keeps property negotiations secret. A.B. 1050, by Christine Kehoe (D-San Diego), was an attempt to rein in the use of closed sessions to discuss property negotiations. The bill would have kept public agencies from deciding whether it's a good idea to buy or sell or lease property in secret. That bill also died in committee.

Brown explained the League's position on property sales: "The League is a supporter of open and public information regarding what you're going to use that property for. But I want those negotiations of terms and conditions to be in private, because I want the public agency to get the best deal."

But Francke said buying and selling property is a key government function that the public should be able to observe.

"The only purpose of the closed session supposedly is to keep the party on the other end of the bargaining table from knowing your bottom line," he said. "But too often the ones who are really kept in the dark are the taxpayers. It's an authority that has been badly stretched over the years. It's not unknown for public agencies to invest large sums in buying handsome new central offices for their staffs or getting into interesting partnerships with sports-team owners or joint construction venues or stadiums that may or may not be assets for the community."

More entrenched

Since Sept. 11 the secrecy lobby has become more entrenched – and its agenda more ambitious. Just as President George W. Bush and Attorney General John Ashcroft are limiting information on the federal level, California officials are using the fears of the public to argue for greater secrecy.

"Things that have sort of been out there forever as public information, now they're thinking [twice] about. Things like maps. Or information about facilities," ACWA spokesperson Jennifer Persike said. "Some members have expensive watersheds. If you were to ask for a map, there's a question now: what's it going to be used for? They're real concerns. This is not a fabrication. There's a new balancing test."

There are indications that this sort of argument will be used against SCA 7. But Shelley said the bill would allow the public agency to make the case for withholding a record. "They might have a good point," he said. "Let them make that case. They may be able to very easily prove their case."

Secrecy lobby representatives deny that the open-government debate comes down to a fundamental ideological disagreement between them and FOI advocates. One lobbyist called the differences "wordsmithing," and all of them emphasized the similarities between them and their longtime opponents on the issues.

But in truth, there is a split, evidenced by the secrecy lobby's inability to support even the gentlest good government bill.

Last year lawmakers passed A.B. 1014 (by Lou Papan, D-Millbrae), which forces public agencies to engage in a good-faith discussion with a citizen looking for a record. It's now state law, but it was passed without the secrecy lobby's support.

For Francke and others who believe that publicly funded agencies should become more transparent and less secret, the differences are clear-cut. At stake, he says, is nothing less than the future of democracy in California.

"I am of the perhaps-naive belief that if you really want public support for government, the best way to do it is to let the people know as much as possible," he said. "If you really want government that isn't driven by nasty little internal politics or power plays by those who are just in it for the power, if you want it to be a really progressive, optimum organization, the more light that's thrown on how it really works, the better. If you want an institution compromised by waste, fraud, corruption, inefficiency, nepotism – if you want to encourage that – then make it hard for the press and the public to find out what's going on."