Requiring a more transparent Legislature and making agencies keep public records longer are good ideas. But will officials actually change their ways?

By The San Diego Union-Tribune Editorial Board

https://www.sandiegouniontribune.com/sdut-u-t-editorial-board-staff.html

Consumer Watchdog — the crusading organization that for decades has sought to hold government officials and agencies accountable for their actions — is gearing up for a signature-gathering campaign to place a measure on the 2024 ballot that would strengthen open-government laws in California. Among its many provisions, the Government Transparency Act would seek to close some loopholes in existing laws, make the Legislature far more accountable, strengthen provisions on reporting of junkets, require all public records be kept at least five years, and require vendors and contractors to disclose public records on the work they have done on behalf of public agencies. It’s premature to take a position on the complex 29-page measure pending a much fuller analysis, but it certainly sounds good.

If the measure reaches the ballot, one key point must be stressed repeatedly during the ensuing campaign: It’s needed primarily because government officials often fail to act with good faith in observing existing laws. In 1968, the California Public Records Act was enacted in part because local and state legislators — not to mention regular citizens — often struggled to get information out of government agencies. Crucially, the act emphasized that “access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state,” and that this right required “maximum disclosure of the conduct of governmental operations.” But it has one big catch-all exemption — information can be withheld if the benefit of doing so “clearly outweighs” the benefit of releasing it — and lots of specific ones — such as for records related to litigation and about individual public employees — so “maximum disclosure” was readily avoided by government officials who disregarded the law’s plain intent.

In the decades that followed, judges have clarified and in many ways strengthened the California Public Records Act. In 1983, for example, a state appellate court set a precedent with a sharp rejection of the city of West Covina’s refusal to disclose information about a contract with a trash-disposal company on the grounds that doing so would violate the company’s privacy. Yet in 2004, government secretiveness remained so common across the state that openness advocates introduced and won 83 percent support for a ballot measure that amended the California Constitution by establishing a fundamental right of public access to meetings of government bodies and official documents. That measure also had language calling for maximum disclosure, saying statues should always be interpreted in a manner “furthering public access.”

Unfortunately, the 2004 measure had little noticeable effect. Locally, it’s still often a struggle to get agencies to comply with basic requests for information. In December, The San Diego Union-Tribune Watchdog team reported that the city of San Diego had paid more than $240,000 in attorney fees and court costs over the two previous years related to its refusals to honor California Public Records Act requests. In 2021, a paralegal who worked for the San Diego Unified School District admitted under oath to routinely violating state laws in processing record requests, reflecting the district’s long history of being sluggish or worse on transparency.

Such stonewalling is often presented as necessary because of the lack of staff to handle information requests. But this isn’t a legal argument — it’s an admission that these agencies don’t take seriously their obligation to be transparent. And it is not some improbable coincidence that when public agencies finally surrender records after long hiding them, they often confirm serious allegations of wrongdoing and corruption. It is telling that the first example of a rogue agency cited by Consumer Watchdog in its announcement of its ballot drive is the California Public Utilities Commission. Its leaders fought attempts by the U-T Watchdog to learn how the CPUC reached its 2014 decision to make Southern California Edison and SDG&E customers pay for 70 percent of the $4.7 billion cost of the closing of the broken San Onofre nuclear plant. When the truth came out after the state Attorney General’s Office raided the home of former PUC President Michael Peevey in 2015, documents showed he had surreptitiously worked with a utility executive on the sweetheart deal. This led the CPUC to settle a lawsuit over the deal and increase the utilities’ share of San Onofre shutdown costs by $775 million.

So is there a need for better and stronger rules on government openness in California? Absolutely. But as the CPUC case shows, the problem in the Golden State isn’t loose laws. It’s the contempt that so many public officials routinely have for these laws.