Secrecy busters
Voters this fall could put sunshine in the California Constitution, giving journalists and the public a new way to hold government accountable.

By Steven T. Jones

LAWS COME AND go, but a state's constitution endures. The California Constitution defines the most basic rights of the people of this state, serving as the foundation for all the statutes, ordinances, and legal case laws that guide human interactions. Drop a new principle into the constitution and its impacts can ripple outward, subtly altering everything in its path.

And that's precisely what proponents of State Constitutional Amendment 1, the open-government measure on the fall ballot, hope will happen. By enshrining sunshine in the constitution and creating a presumption of openness in conducting the people's business, the document would for the first time create a standard by which judges, bureaucrats, and the public could measure government accountability.

In the process, time-honored First Amendment protections of a free press and the right of citizens to petition their government would begin to take on a powerful new aspect: the right of access. California courts would be forced to protect not just our right to speak and write but also our right to know what our government is doing.

"What good does it do you to be able to say anything you want if you can't find out the facts you need to be credible in what you're talking about?" said attorney Terry Francke of the California First Amendment Coalition, part of the broad-based coalition pushing the measure.

Lost ground

SCA 1 is a homegrown measure born at a time when concerns about privacy, criminal justice, and national security are putting the squeeze on the imperative of government openness.

The erosion has come from executive orders (such as former governor Pete Wilson's restricting press access to the prison system), legislative acts (including those allowing government to enter into more secret lawsuit settlements), court rulings (which have expanded definitions of when local government bodies may meet in private or loosened exemptions to the California Public Records Act), and by arbitrary denials of records requests by public agencies, particularly police and sheriff's departments.

Concerned about this growing trend toward secrecy, a coalition that includes the CFAC, the California Newspaper Publishers Association, and the Society of Professional Journalists recognized the need for a sunshine provision in the constitution. Its push began six years ago in San Francisco after a CFAC meeting, CNPA general counsel Tom Newton told the Bay Guardian, when the group determined, "We're losing ground here. Let's do something."

The coalition batted around versions of the bill but was stymied by the lack of money to launch a statewide ballot campaign. So three years ago, at the request of Bay Guardian editor and publisher Bruce B. Brugmann, state senate president pro tem John Burton agreed to carry the bill that would place it on the ballot.

The measure was tweaked to overcome opposition from privacy advocates, local government, law enforcement, and other interest groups until there was little formal opposition. But behind the scenes last year, then-governor Gray Davis stalled the bill over its exemption of the legislative, but not the executive, branch. After that was negotiated, the bill got held hostage by Republicans during partisan battles over the budget, so it didn't make the March ballot as intended.

Yet Burton never gave up on the bill, and earlier this year he not only got it passed but also won unanimous votes for the bill in both the state senate and assembly, a remarkable feat in this divisive era. And now SCA 1 is poised for approval with no individual or group yet stepping up against it.

"We anticipate no formal opposition to the measure because the wording has been carefully crafted to alleviate any reasonable concerns of those organizations otherwise opposed," CFAC executive director Kent Pollock said. "The fact that this effort passed the legislature without a single no vote and that it obtained the endorsements of the League of California Cities, the League of Women Voters of California, CNPA, CFAC, Attorney General Bill Lockyer, and a host of other organizations demonstrates the Sunshine Amendment's broad support."

Pollock said it's the first effort of its kind in the country, and Francke added that this kind of fundamental rethinking of the issue of government openness could spread to other states around the country.

Presumption of openness

Practically speaking, SCA 1 wouldn't change much in the short run, except maybe to force bureaucrats who are denying public records requests to better explain their reasoning.

In establishing that "access to information concerning the conduct of the people's business is a fundamental and necessary right of every person in this state," the measure would flip the burden of proof for denying records to government, calling for officials to issue "particularized findings demonstrating a substantial probability of serious harm to the public interest that the denial will avert."

Newton said the law's broad dictates could inspire the public to demand more openness from government. "An aggressive public that want to know what their government is doing is a good thing," Newton told us. "And they could be emboldened by this new set of civil rights.... It could really change the public views of their role."

Yet Francke and other media law attorneys told us that the most significant impacts of SCA 1 wouldn't be felt for many years, until the courts have had opportunities to interpret and apply the new sunshine dictates and those decisions work their way back into how government conducts its business.

"It would change the way courts look at the issues that come before them and tilt the balance in favor of public disclosure," said James Chadwick, a media attorney with Gray, Cary, Ware, and Freidenrich and an early advocate for SCA 1. "It will take a while. It takes some time to work through the courts."

Similarly, SCA 1 would also serve as a litmus test for new state laws, forcing politicians to address whether legislation they propose runs afoul of the constitutional protections of the public's right to know.

"Right now there's nothing to prevent a new secrecy provision from being added to a bill in the final hours," Francke said, referring to the last-minute revisions many bills get at the behest of lobbyists for powerful interests.

Much like the evolution of the First Amendment, SCA 1's true form would take shape over time as lawmakers and judges interpret its meaning within the larger sociopolitical context. Francke noted that for the first 100 years of our nation's existence, the First Amendment was more of a philosophical statement than a legal precedent, drawing its first significant legal challenges in the dawn of the 20th century.

"It only came into play when there was a strong federal government and a more developed network of communication," Francke said. At that point muckraking journalists started challenging big business, political activists began asserting their rights to protest government policies, technological advances extended the media's reach, and the courts found themselves determining the limits of freedom of speech.

"Everything people know about freedom of speech is a result of legal decisions made around the time that their fathers or grandfathers were born," Francke said. "It's relatively new."

Later, as journalists and the public began to exercise their right to speak out, the realization began to dawn on people that the press wasn't truly free until they were able to freely obtain important information about their government. Thus, the sunshine movement was born.

The sunshine movement

Sunshine was largely a reaction to the cold war. With J. Edgar Hoover and the Federal Bureau of Investigation spying on American citizens, the Central Intelligence Agency surreptitiously subverting foreign governments, and the whole of U.S. government falling into dangerous patterns of secrecy and duplicity, the American people began demanding more openness and accountability.

"It arose after the birth of the national security society after World War II," Francke said of the demands for open government, which coincided with an era of progressive reform in the areas of civil rights and Great Society social welfare programs.

Congress passed the Freedom of Information Act in 1964, opening up federal documents to public inspection. In California, that was quickly followed by the Public Records Act (opening state and local documents) and the Bagley-Keene Act (opening up the California legislature), coming after the state's own landmark Ralph M. Brown Act (creating an open meeting standard for local agencies) of 1952.

Suddenly, government was open to inspection. But the courts were slow to begin creating the case law that would start drawing the connections between the First Amendment and the right to know, the intersection of which has come to be dubbed "sunshine."

"Formally, what we call sunshine wasn't treated as an aspect of the First Amendment until around 1980," Francke said.

That was the year the federal courts started making a series of decisions that firmly established the standard of openness in legal proceedings. "Starting in the '80s and continuing into the '90s, the courts have said the public has a constitutional right to information from the courts," Chadwick said.

Yet the legal link between the First Amendment and the actions of the executive and legislative branches of government lagged by comparison, even with the big advances during the 1960s in legislation opening up government.

"There's nothing in the Brown Act or the California Public Records Act that says 'First Amendment,' and there's nothing in the First Amendment that says 'open government,' " Francke said. "But there is a convergence."

And to codify that convergence, sunshine proponents hope SCA 1 will begin to strengthen and expand California's presumption of openness in government.

Privacy lessons

The California Constitution begins with these words: "All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy."

That last word, "privacy," was added by a voter initiative in 1972. The change portends both the possibilities and pitfalls of SCA 1 and whether sunshine can join the three pillars of accountable government – initiative, recall, and referendum – that were inserted in the constitution during the progressive era.

Francke said the insertion of the privacy concept into the constitution set in motion a series of interpretations by the courts and the legislature that created the privacy standards Californians now enjoy, such as the privacy of academic and medical records and the expectation of freedom from undue interference in our personal lives.

In fact, privacy has taken such primacy in the courts that it has often come at the price of access to information and freedom of the press. That's why SCA 1 was careful to dance around this potential clash of rights.

"Privacy also being a fundamental right of the citizens of this state, nothing in this section shall be construed to limit the ability of the legislature to provide for the protection of information about private individuals submitted to or obtained by a public body," the measure reads in part.

Yet by placing sunshine alongside privacy in the California Constitution, the courts would have a mandate to find the balance between those concepts, something that would be hashed out through test cases over many years. Francke said the sunshine movement is still in its early stages, and SCA 1 could take 25 years for its impact to be fully realized.

"My hope is the effect of SCA 1 would transform government's respect for the expectation of public access dramatically during that time," Francke said. "SCA 1 is for the long haul."

It isn't just journalists who would rely on SCA 1. Activists and other government watchdogs count on open meeting and public document laws, said attorney Doug Heller of the Foundation for Taxpayer and Consumer Rights.

"Access to government records is crucial to making government accountable and keeping democracy functional," Heller said. "So much of the work we do in fighting for the public involves getting access to government documents."

In fact, Heller said his group's work in exposing the flaws in California's electricity industry deregulation plan and the corruption that forced former insurance commissioner Chuck Quakenbush from office were hindered by the failure of state officials to comply with FTCR's public records requests in a complete and timely fashion.

"More-expansive public records laws means there will be less government corruption," Heller said. "I say that unequivocally."

Matthew Hirsch contributed to this report.

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