Is the Proposed Change to the Public Records Act Really THAT Bad? Yes, it is. UPDATE: Apparent Victory!


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UPDATE 2: Apparently the Speaker’s Office has figured things out – SEE THIS LINK — and the Assembly will remove the offending provision tomorrow.  Brown will presumably go with the Assembly version.  Glad to know that my legislative party leaders can respond appropriately to new information (as well as to righteous political pressure.)
UPDATE: Chairman Vern says:  CALL the Governor at 916-445-2841. Phone calls get more attention than internet clickies. A good point is the bill authors’ phony ruse of fiscal responsibility, when a LOT – maybe most – of what we citizens uncover through this act has to do with waste and corruption.

It’s not all that often that Chris Emami of GOP-boosting OC Political, Duane Roberts of the Green Party and Anaheim Investigator, and Democratic activist moi of this here blog all agree on something — so when it happens I guess that everyone in the world must immediately stop everything they’re doing and take notice.

boardwalk empire steve buscemi

Steve Buscemi in Boardwalk Empire is not the image that we want to project.  Nor is Buscemi in pretty much any movie.

A part of the new budget, to be signed this week by Governor Brown (although he could veto line items including this one), local governments would be exempted from the requirements that they respond to public requests for information within 10 days by producing documents or explaining why the law allows them to reject a request (or why they otherwise can’t comply.)  The reason for doing so is that the state reimburses local government for these services — and it would like to stop doing that.

Are you thinking what I’m thinking?  Let’s all say it together: CITY OF BELL!  CITY OF BELL!

You need more explanation beyond that for why this is a bad idea?  OK, Emami links to an article by Julie Small from yesterday’s Southern California Public Radio Blog

The state maintains this is a budget move, because it has to reimburse local governments for complying with some aspects of records requests. The Department of Finance estimates that exempting local governments from those requirements could save the state tens of millions of dollars a year.

But Peter Scheer of the First Amendment Coalition says the change will create opportunities for local authorities to cut off public access to information:

“People are going to file public records request for records that they need, and under this new legal language,  a local city or a county is going to be able to write back and say ‘denied’ and they’re not going to tell you why…I think that’s just crazy.”

But the Finance Department’s H.D. Palmer says local governments can adopt their own process — and he expects they will: “We believe that these are best practices that local governments have and will continue to abide by.”

And if they don’t, Palmer said local agencies will “have to tell everyone publicly in an open meeting, and they could conceivably be leaving themselves open to litigation.”

I really hate it when people say that local governments won’t take advantage of loopholes in the law.  Many of them won’t, perhaps, but the worst ones will.  Because we can’t come up with an a priori list of “worst ones” (CITY OF BELL! CITY OF BELL!) [Vern says Anaheim! Anaheim!  and Costa Mesa!" ed] that should be exempt from the law, we do have to make it apply to everyone and let the courts decide what violations are de minimus.  (Of course, the courts will rarely if ever have to decide, because – absent great urgency of the request – it is the rare and deluded legal bozo who is going to file a lawsuit just because a city is a day or two late in responding, largely because a judge is going to roll eyes at them.)

By the same token, though, litigation is expensive and Palmer’s saying “oh, don’t worry, if a local government (CITY OF BELL!) doesn’t comply, they can just be sued” is let-them-eat-cake-ism of the worst kind.  They have to “tell everyone publicly in an open meeting” and they “could conceivably be leaving themselves open to litigation”?  On what planet does Palmer live where this is an adequate deterrent?  Come visit the OC and you’ll see what local governments are willing to do publicly, way beyond this level of pugnacity.

On the political side, Duane Roberts — and fellow Democrats, pay attention here, because this is how we lose support! — rails in a message to Occupy OC (yes, we still exist) thusly:

The corrupt Democratic Party, which controls the California State Legislature, has launched an unprecedented attack on the California Public Records Act, the state’s freedom of information law.

Under the ruse of “fiscal responsibility,” the Democrats are proposing reduce the public’s right to know what their local governments are doing behind close doors by giving them more power to brush you off.

It’s ironic that the California Public Records Act, a bill signed into law by Governor Ronald Reagan, a Republican, is now on the verge of being seriously weakened — if not eviscerated — by Governor Jerry Brown, a Democrat.

Don’t tell me that the Democrats are the “lesser evil.” What hogwash.

Now, I could quibble with Duane — I don’t think that such an attack is unprecedented, I don’t think that it’s a ruse (I can believe that saving money was the motivation), I don’t think that this is an “evisceration,” and I still maintain that my party is the “lesser evil” (although I suppose I might choose a more positive term for it) — but if my fellow Democrats don’t see the power behind that punch then they are seriously out of touch.

Sometimes, we Democrats in government don’t actually have the power that left-wing malcontents (a label that I believe Duane would wear proudly) ascribe to us.  Sometimes it’s a matter of fifth-columnists in our midst, sometimes it’s a matter of political realities that don’t matter much to those in third parties.  (If Dems are asked to do something that could lead to a Republican takeover of government, I’m going to be very wary of that cost.)  But … this isn’t one of those times.  If we get slammed for this, our leaders will have earned it.

And that’s why Gov. Brown has to veto this line item and come up with another way.  Think of how much our critics can do with attacks made up from nothing!  How much more can they do with one that makes sense?

Do I need to paint a picture for you?  Here’s part of the editorial to which Duane links, from the Fresno Bee:

[Cost saving is] the ostensible reason. The real reason is that Gov. Brown and legislative leaders have a weak commitment to transparent governance.  Collectively, they’ve received scrutiny over pay raises, use of state funds, the Bay Bridge debacle and other embarrassments.  Collectively, they’re the foundation of a Secrecy Lobby that wants to keep Californians in the dark.

Only one Democrat — Sen. Leland Yee of San Francisco — had the courage to buck the party line and and join Republicans in voting no. Said Yee: “It’s not about saving money. It’s all about curtailing an open, transparent government that can be held accountable.”

In the hands of reporters and ordinary citizens, the California Public Records Act is the hammer that makes public agencies reveal the salaries and pensions of government workers and officials. The Act forces the disclosure of legal fees, project overruns and the recordings of 911 calls. Take away that hammer, and the wall around government becomes thicker and taller.

This is just the latest assault on sunshine.  Last year, to avoid paying reimbursements, lawmakers and the governor suspended notice mandates for public meetings.  This year, lawmakers considered imposing a $10-per-file fee on the public to look at court records.  Fortunately, a conference committee killed that bill.

I’m sure that there are other good reasons for this bill that I don’t know.  I’m also sure that those good reasons are not good enough.  If we really supposedly need this and we really can justify it, have a full public debate about it and pass it in a separate bill.  Right now, in the state budget, it’s turning the whole thing sour.

We here in Orange County are your canaries in the coal mine, Democratic leaders — we hear what the attacks are going to be way before you do.  We’re about to pass out from the fumes of this noxious bill.  Pay attention; escape while you can!


About Greg Diamond

Worker's rights attorney now moving into "good governance" litigation. North Vice Chair of Democratic Party of Orange County and occasional candidate. Proud to be prolix. Unless otherwise specifically stated, his writings never speak for the Democratic Party at the local, county, state, national, or galactic level. He tries to either suppress or openly acknowledge his partisan, issue, ideological, and "good government" biases in most of his writing here. If you have a question about any particular writing, just ask him about it and (unless you are an pseudonymous troll) he will probably answer you at painful length. He lives in Brea but generally doesn't blog about it. A family member works as a campaign treasurer for Wendy Gabriella in AD-73; he doesn't directly profit from that relatively small compensation and it doesn't affect his coverage. He does advise some campaigns informally and without compensation, although in 2014 he may receive some compensation for campaign consulting and fundraising for the campaign of Jorge Lopez for Orange County Assessor.