California’s Public Records Law Has ‘No Teeth’ … Why Doesn’t That Upset Us?

THE PEOPLE’S VOICE-In theory, it’s simple: The California Public Records Act is intended to make government records — from contracts to calendars — easily accessible to the public.   

In practice, however, it’s often not so easy to gain access to documents, especially when public officials have something to hide. 

“California has a law that was originally a pretty good law, from the standpoint of government transparency, but over the years, it’s become a much less good law — maybe even a bad law,” said Peter Scheer, executive director of the San Rafael-based First Amendment Coalition.   

Passed in 1968, the law was the first to broadly cover all sorts of public records in California, mandating that all government records are presumed public except for those explicitly exempt under the law. Exemptions have proliferated over the years, and public agencies routinely spend public money on attorneys who will find legal justifications for withholding documents from the public. 

The law has been revised numerous times since 1968, both by the Legislature and the courts, but never for the better, according to Scheer. 

“The incentives are all on the side of withholding,” Scheer said. “No one’s ever been yelled at, reprimanded or fired for withholding information.” 

That puts the burden back on the public, which can either accept an agency’s assertion that a document is exempt or pay a lawyer to challenge the public agency. 

“It’s got no teeth,” said Jonathan Kotler, associate professor of journalism at the USC Annenberg School for Communication and Journalism because the law does not penalize public agencies for breaking it, the public’s only recourse is a court battle. 

“If I had to make one change to the law, it would be to add a penalty to the law, even a civil penalty, to public agencies that refuse to comply,” said Liam Dillon, senior reporter and assistant editor for the nonprofit investigative news site Voice of San Diego. 

It’s not a universal problem: Pennsylvania and especially Florida have quite good public records laws, according to Kotler. 

In Florida, for example, former Gov. Jeb Bush was required to release more than 250,000 emails to the public because the laws there are more clear than even the federal statutes that former Secretary of State Hillary Clinton may have circumvented when she used a personal email account rather than a government email account. 

The Associated Press is suing the State Department to gain access to Clinton’s emails. Clinton has turned over more than 50,000 emails to the State Department, which has said it will release them after reviewing and redacting confidential information from them. Clinton has acknowledged, though, that more than 30,000 emails were deleted from the personal servers she used. 

In California, official emails between government officials are presumed to be public documents unless their content is covered by a separate exemption. Public officials have argued, for instance, that emails should not be public because they violate the lawmakers’ right to deliberative process. 

California law also does not prohibit public officials from conducting public business in private email accounts, and the 6th District Court of Appeal ruled last year that California’s Public Records Act does not apply to communications on private accounts or devices.  

Dillon, who previously worked in Florida, said it’s unfair to compare California to Florida, which has the strongest public records laws in the country. 

“Comparing any other state to Florida is not very good, since Florida has wonderful disclosure rules,” he said. “There would never be anything like trying to get away with sitting on requests for months in Florida, like happens relatively frequently here.” 

In Florida, the personnel files of public officials are also public information, which isn’t the case in California. 

“It’s really impossible to get any of that information here, particularly in the law enforcement realm,” Dillon said. 

Florida has only had to prosecute an agency for failing to comply with its public records law, 1995’s Florida Sunshine Law, one time, said Kotler. 

“And that was enough,” he said. “I’m a big believer in penalties to achieve good conduct, whether it’s speeding on the freeway or access to government, and I think that unless you have some sort of negative penalty to get things done, nothing’s going to get done. There needs to be penalties.” 

In theory, members of the public or the media can sue agencies that fail to comply with the law, but that’s expensive and time-consuming. 

“I don’t know that newspapers have the cash lying around to sue nowadays,” Kotler said.

The California Public Records Act is unlikely to get much better any time soon. 

“On a piecemeal basis, progress is made, and more can be made,” Scheer said. “Major relief, if it comes, will come in the form of a groundswell of public support for a real and very strong transparency law that will focus a great deal of attention on the legislative process.” 

To outdo the pressure from special interest groups that have weakened the public records act in the past would require the public to be incredibly angry about the issue, according to Scheer. 

“I think it would take something rather substantial to get the public riled up,” he said. 

For instance, some are already pointing to the Clinton email scandal as a reason for Democrats and Republicans to jointly push forward federal Freedom of Information Act improvements. 

In the meantime, Scheer said officials should err on the side of releasing documents. 

“I would argue that it’s really in the government’s interest to release records when it’s within their discretion to do so,” he said. “And they should approach requests for records in that way. If they did, there’d be far less complaining.” 

Doing so would benefit everyone, he argued: 

“We’d have voters who are much better informed and perhaps much more sympathetically inclined toward incumbents about their actions, which they’d know much more about.”

 

(Beau Yarbrough covers education and politics for The Sun and the Inland Valley Daily Bulletin … where this piece was first posted.  He can be reached at [email protected]. ) 

-cw

 

 

CityWatch

Vol 13 Issue 23

Pub: Mar 17, 2015