Amendment backers argue governments keep too much secret

The Sacramento Bee

A newspaper reporter for the Bakersfield Californian last month discovered that more than 80 Kern County firefighters were making more than $100,000 a year – in large part because of overtime pay. The newspaper tried to find out who was benefitting – but was turned away.

The county asserts that salaries of individual firefighters are not a matter of public record. The newspaper is suing to get the information. The conflict over what the public has a right to know is played out daily between government bodies and those seeking information – individual citizens, lawyers, advocacy groups and media organizations.

Currently, the struggle too often favors government bodies trying to hold information back from the public in the name of good government, say advocates of a proposed constitutional amendment that would toughen California’s open-government laws – making them among the strongest in the country.

If the proposed constitutional amendment is ultimately approved by voters, government bodies closing meetings or withholding records would have to spell out the public harm averted by their actions.

“It ought to be the responsibility of the government to explain why something is not public, not the other way around,” said Sen. Bruce McPherson, R-Santa Cruz, one of the measure’s co-authors and a former newspaper publisher.

The more subtle but significant change is that by expressing in the state constitution that “the people’s business is a fundamental and necessary right,” arguments in favor of government access will carry more weight in court.

The March 2004 election is likely the earliest that voters will have a chance to weigh the constitutional amendment being pushed through the Legislature by Senate President Pro Tem John Burton. SCA 7 is awaiting approval in the Assembly and is not likely to make the Nov. 5 ballot.

Critics, including some businesses and California’s cities and counties, say they support the idea of greater government access, but they contend the amendment goes too far.

The amendment would throw into question every existing exemption to open records and meeting laws, they say – creating years of uncertainly as courts reinterpret when the government can say no.

But proponents say dramatic action is needed.

“The system is simply not working,” said Kent Pollock, executive director of the California First Amendment Coalition, an amendment sponsor.

There are too many court-approved reasons the government can shut the public out of meetings or withhold records, Pollock said, and state and local bodies too often fight “legitimate” requests for information.

Pollock said his office fields calls from people every day complaining that government bodies are just “thumbing their nose” at open-meetings laws. The only recourse is to take them to court.

“Are you going to go to court to fight your government who is using your money to block your attempt?” Pollock asks.

For well-funded media outlets or advocacy organizations, the answer is often yes. But for individuals, a rejection usually means the end of the road.

A 1998 report by the Legislature’s Task Force on Government Oversight called the state’s public records laws a “paper tiger.” Public records law “has been interpreted, reinterpreted and fiddled with to the point that it has … been turned into a paper tiger by state officials who know they face no penalty if they refuse to release public information,” the report said.

Since the report’s findings were published, attempts have been made to strengthen open- government laws. One bill would have allowed anyone whose public records request had been denied an opportunity to appeal the matter to the state attorney general, who would rule whether the records at issue were public.

Gov. Gray Davis vetoed the bill, saying the attorney general can’t offer an opinion against a state agency – then be asked to defend the agency.

A court finding that government bodies can withhold documents relating to the “deliberative process” – the internal discussion that leads to a decision – is the biggest injustice, advocates said.

Government officials are saying, “We’ll tell you the conclusion, but we won’t tell you how we got there,” Pollock said. The argument that government officials can’t do their jobs while the public is watching is “bizarre and crazy,” Pollock said.

However, city and county officials say there ought to be room for discussion away from the camera’s glare.

“If brainstorming out loud is subject to public scrutiny, we have a problem with that,” said Amy Brown, a lobbyist for the League of California Cities.

Bruce Cain, director of the Institute of Governmental Studies at the University of California, Berkeley, said government needs the ability to have off-the-record internal discussions. “How do you get really frank discussion if they think it might end up in The Sacramento Bee?” Cain asked.

Open-government advocates point to the Chuck Quackenbush scandal as a prime example of the use of open-records laws to shield inappropriate action.

The former state insurance commissioner resigned in June 2000 after a legislative committee found that he was setting aside millions of dollars in proposed insurance industry fines in exchange for charitable contributions that benefited his political career.

“I don’t think Quackenbush would have been able to get away with what he did if he didn’t use the Public Records Act to shield his actions,” said Harvey Rosenfield, president of the Foundation for Taxpayer and Consumer Rights.

As it turned out, a whistleblower from within Quackenbush‘s office emerged to expose the commissioner’s practices and leaked the market conduct evaluations that largely told the story.

In the wake of the Quackenbush scandal, the Legislature changed the law to make public some reports on insurance company behavior public. Market conduct evaluations are now available though the insurance commissioner’s Web site.

The insurers say they went along with the bill after the Quackenbush scandal, but they object to Burton’s current effort.

“No insurance company could be certain that when they give information to the Department of Insurance, they are not also giving it to their competitors,” said Bill Gausewitz, an assistant vice president with the American Insurance Association.

Lobbyists for the League of California Cities say they are not sold on the idea of a constitutional amendment.

Rather than amending the Constitution, those backing the amendment should try persuade the Legislature to eliminate the open-government exemptions they oppose, Brown said.

The proposed constitutional amendment has appeased many potential critics by including a provision that privacy is a fundamental right and preserving the right of the Legislature to protect privacy.

SCA 7 also contains a provision that the Legislature has the right to authorize exemptions “to protect public safety or private property, to ensure the fair and effective administration of justice, or to provide for the preservation of public funds and resources.”

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The Bee’s Ed Fletcher can be reached at (916) 326-5548 or [email protected].