The legislative session in Sacramento is shaping up to be another contentious one when it comes to public records and the rights of journalists. In this war over words, California is again expected to be a leading battleground for national issues.
In Sacramento, the biggest obstacle to opening up records and institutions to public scrutiny has been Democratic Governor Gray Davis. Davis fancies himself a centrist, but he has acted more like Gray Wilson when it has come to expanding rights to public records and increasing access for journalists. In his first year as California’s chief executive, he vetoed three of four critically important information measures.
“I would grade Davis no higher than a ‘C’ when it comes to public records,” says Terry Francke, attorney for the Sacramento-based First Amendment Coalition, a lobbying group for First Amendment rights.
“This governor is no better than Pete Wilson, and in some ways he’s been worse,” adds Francke. “Wilson could be frustrating, but he was transparent. It wasn’t because of some quirky thing. That made him easier to predict.”
Francke also says the Wilson administration had a point person with whom you could discuss the issues. But Davis has played it “extremely close to the vest.” Because he has taken such an autocratic approach to governing, Francke says, it’s been impossible to predict what bills he will sign. “It’s also been extremely difficult to get anyone to speak with confidence for this administration.”
The three bills that Davis vetoed last session — and which have been resubmitted this session — are critically important to the public-access fight.
First was AB 1440, legislation authored by Assemblywoman Carole Migden (D–San Francisco). It passed with overwhelming support in both houses and was backed by the powerful California Correctional Peace Officers Association, representing 27,000 officers policing some 33 institutions. AB 1440 would have reinstated the rights of journalists to conduct one-on-one interviews with inmates in the states’ scandal-ridden prison system.
A 1999 report by the General Accounting Office (GAO) highlighted the kind of abuses that could possibly have been uncovered earlier, if the media had been allowed to conduct prison interviews. That report found that female inmates in California have had a long history of being sexually abused by prison staff. The GAO stated that, despite fear of retribution from prison guards, female inmates lodged 117 complaints, 22 of which were sustained. The investigation also determined that prisoners at one unnamed facility were forced to perform stripteases for guards.
California’s Department of Corrections, the GAO continued, was also involved in four pending lawsuits related to sexual misconduct, and settled one suit alleging forced intercourse for $73,000. The GAO also found that California had no adequate system for tracking prison complaints, and that the state has failed to prosecute any prison guards for sexual misconduct against female inmates.
Next was SB 48, authored by state Senator Byron Sher (D-Stanford). The bill would have created a process by which any person denied a public record by an agency could have requested a review of that denial by the state Attorney General’s Office within 20 days.
SB 48 mirrored Proposition G, a new “sunshine law” approved by San Francisco voters in November. The ordinance requires that people be allowed more access to government meetings and public records, and institutes a speedier appeals process when requests are denied. Proposition G also gives the San Francisco Ethics Commission the power to suspend or fire government employees who don’t comply.
Under SB 48, the attorney general, a supporter of Sher’s legislation, would have issued an opinion as to whether the denial of public records by a state agency was lawful. If the attorney general’s opinion backed release of the disputed record, the agency could continue to deny access, but it would have been forced to hire outside counsel to defend its position if a lawsuit was filed. If the court ruled in favor of releasing the record, the agency would then not only have paid the other side’s attorney’s fees, but could be fined up to $100 for every day the release was delayed.
“My bill was modeled after a Kentucky bill that has worked quite well,” explained Sher. “I wrote this legislation after I requested some information on default complaints from the Insurance Commission and I had trouble getting them. I figured that if I, as a state legislator, was getting stonewalled, what chance did the average citizen have?”
The third bill vetoed by Davis was SB 1065, authored by state Senator Debra Bowen (D–Redondo Beach). Bowen’s legislation would require that agencies turn over requested public records in the format in which they are stored. This means that if an agency stores its information electronically, it would no longer be able to inundate requesters with paper records.
“I’ve been trying to get mandated electronic access to public records for years,” says Bowen. “This is an electronic-information age, and we need to get that information to people electronically in order to enhance public participation in government.”
Bowen says she found that some agencies view public records as an “asset of the agency,” rather than the property of the public, who paid for the collection of the information with their tax dollars.
Accessing public records is one of the hallmarks of a free society, adds Bowen. “It’s the reason we don’t have people disappear into secret jail cells or secret courts.”
In his veto message, Davis misrepresented the Bowen bill, claiming he was acting to “protect the confidentiality of citizens” whose records are stored by the state.
In an angry written response issued after the veto last October, Bowen charged that Davis was following the lead of former Republican Governor Wilson, who had vetoed the same legislation.
“Either you believe the taxpayers should have low-cost, electronic access to the public records they paid to create, or you don’t. And clearly this governor doesn’t,” stated Bowen. Bowen said her bill had nothing to do with releasing confidential information. “The bill only applies to items covered by the Public Records Act.”
Bowen also took aim at the state’s bureaucrats: “Although there aren’t any fingerprints, this bill was really killed by the government agencies who think that they, not the taxpayers, own the public records and ought to be able to sell them at a profit.”
Now Migden, Sher and Bowen are re-introducing their vetoed bills.
“Carole Migden will reintroduce 1340 [renumbered AB 2101], but nothing will be different,” explains Jeff Long, a staffer in Migden’s office. “We are going to put it in and keep trying to work with the Governor’s Office. We hope there are minds to be changed,” he adds.
Long also points out that last year’s bill not only had the support of the powerful prison guards union, but also had Republican Senators Ray Haynes and Tom McClintock, two of the Senate’s most conservative members, as co-authors.
“We are expecting no problems passing this bill again,” says Long, “and we hope the governor is more willing to work with us on this, now that he’s in his second year.”
Francke says the Sher bill, now renumbered SB 2027, will include one important change. In his SB 48 veto message, Davis stated that he took the action because it conflicted with another bill he had signed, requiring state agencies to employ the attorney general as its representation in any case emanating from state duties.
“Sher’s new bill states that a review by the A.G.’s Office will occur only if that agency is not currently advised by the A.G.,” explains Francke. “He hopes that change will be enough to get the governor to sign it.”
The biggest change will occur with Bowen’s legislation. Instead of being a stand-alone bill, SB 1065 will be part of a companion bill, AB 2799, authored by San Francisco Assemblyman Kevin Shelley, says Bowen chief of staff Evan Goldberg.
The Shelley bill includes a major change in the balancing test contained in the Public Records Act. Under the current formula, it is up to people making a request to prove they are entitled to a record. If the Shelley bill passes, not only will electronic access to electronic records be guaranteed, but the agency whose records are requested will have to prove it is entitled to keep them secret.
In contrast to pro-access legislative efforts by Migden, Sher, Bowen and Shelley, state Senator Steve Peace (D–El Cajon), a part-time filmmaker whose claim to fame is producing the film Attack of the Killer Tomatoes, has introduced the mother of all anti–public records legislation: SB 129. This bill would enable any individual to sue a business or government entity if it releases personal information without his or her permission.
The statute would effectively grind the transfer of information in California to a halt. For example, anyone who applies for credit cards or loans would have to give individual written permission to the lender to contact each credit source listed on their application. Information services, credit agencies and private investigators would either be put out of business or see their operations severely restricted.
Court and arrest records and virtually all current public records could be made confidential. Law-enforcement investigations would be stymied because police officers, if they’re not exempted, would find their ability to collect background information on suspects blocked.
Peace’s legislation also flies in the face of the facts. According to the Privacy Journal, a Rhode Island–based monthly newsletter that monitors privacy laws nationwide, California currently ranks as the top privacy state in the country.
“Its courts and its constitution provide the strongest privacy protection in the nation. [California] probably has the strongest collection of laws protecting personal information,” writes the Privacy Journal’s editors.
If enacted, Peace’s proposed legislation would mark the death knell of the Public Records Act in California.