For years, advocates petitioned the California legislature to pass loophole-closing open government legislation, only to have plans die in committee or by the governor’s veto. Further frustrated by court decisions that chipped away at access laws, this year the California First Amendment Foundation (CFAF) and the California Newspaper Publishers Association (CNPA) wanted voters to make the call.
“Now we feel like it’s time to let the people decide how open they want their government to be,” said Kent Pollock, executive director of CFAC.
It was rough political landscape for the two organizations that are sponsors of the “Open Government Sunshine Amendment,” SCA 7, a proposed amendment to the California state constitution that would secure citizens’ access to public meetings and records. If the measure passed by a two-thirds majority in both legislative houses, it would be placed on the next statewide ballot for the voters to decide. Last minute objections to the bill – as well as an assembly pressed for time to pass a state budget – killed SCA 7 in mid-August.
But for advocates who are dedicated to opening government to citizens, setbacks are nothing new. Setbacks are part of the game.
The proposed amendment could make California one of just a handful of states to make access to open records and meetings a constitutional right of citizens. Florida is the only state to recently add a similar amendment, according to Charles Davis, executive director of the Freedom of Information Center and co-chair of SPJ’s Freedom of Information Committee. He said a constitutional guarantee has much more power than a legislative statute.
“What it sort of does is constitutionally fortify access in your state because it just makes it a hell of a lot harder for the state government to close things,” Davis said.
Pollock said advocates have pushed for better access laws for years. But the last few state governors have quashed legislation – even when proposals were passed unanimously by both houses of the legislature or supported by the attorney general. Years ago, advocates began casually chatting at board meetings about having a constitutional open government provision. But that was just talk.
“At that point, we had no idea it could even be on the ballot,” said Terry Francke, general counsel for CFAC.
Amending the state constitution is an ideal proposition because it would take the governor out of the equation. The measure travels straight from the legislature to the people on its way to changing the constitution. Advocates can also bypass the legislature by collecting signatures from enough citizens.
Adding a new section to the constitution also would set a new standard for the state – a standard that the government and the courts would have to meet.
“There have been dozens of decisions by appellate courts in this state that have seriously weakened the California Open Records Act and the Ralph Brown (open government) Act,” said Tom Newton, general counsel for CNPA. For instance, the “deliberative process” exemption – which was created by a court decision – allows officials to withhold information regarding decision-making processes. Newton calls the exemption “a bottomless pit,” a reason officials at all levels of government have used to keep things secret.
Francke said the purpose of allowing citizens to attend meetings and to view records is to help them understand the deliberative process, and the exemption goes against the intent of the California open government laws.
Davis said a constitutional amendment does not create a “Eureka! Moment” that automatically open things up. “It is much more nitty-gritty legal,” he said.
The change will show up in the way courts make decisions, which is where access advocates say change is needed.
“There are court decisions that, with all due respect to the judges that made them, are a flat contradiction to the concept of open government,” Francke said. “The point of the constitutional amendment is that everything has to meet that standard.”
In addition to declaring that access to government information “is a fundamental and necessary right of every person,” the proposed amendment requires officials who won’t hand over information to explain why.
“This is a very simple law that basically says if government can’t explain that they wanted to withhold (information) for this reason, they shouldn’t withhold it,” Pollock said.
Francke said this part of the amendment is similar to what judges have to do when they close courtrooms. They must explain what public interest is being protected that overrides openness.
Advocates say much of the opposition to the amendment has come from local government organizations that don’t want to explain why they withhold information.
“They have a very high comfort level with the current law, as they should,” Newton said. “The presumption of access in California has really been a presumption of no access, and they like it that way.”
The language in the amendment has bent a little as a compromise with opponents. Neutralizing opponents of the bill meant long meetings and giving in to some powerful groups, such as the California State Association of Counties, the California League of Municipalities and law enforcement lobbyists.
Newton said privacy was a “major hot button,” so the amendment now clarifies that it does not supersede the right of privacy already guaranteed by the constitution.
Another change from the original document maintains that the previous standard for obtaining police personnel files – a court discovery procedure – would still be the only way to obtain such information. Adding that portion to the amendment meant keeping the old way of doing things, which is exactly what advocates were trying to change. But for CFAC and CNPA, it was a sacrifice made to get the amendment on the ballot. “This was throwing a bone to a very powerful law enforcement lobby,” Newton said.
It has taken a lot of elbow grease on the part of access advocates to get the proposed amendment this far.
“We’ve been using our members to write editorials and call legislators,” Pollock said. “Everyone is doing something. It is hardly a lonely battle.”
A little help from a powerful politician went a long way, too, finally getting the proposed amendment into the legislature. Fueled by its author, President Pro Tem John Burton, the amendment sailed through the Senate on a vote of 32-0.
But the bill didn’t fair as well in the Assembly. Businesses and the insurance industry came out in opposition to the bill at the last minute. Although Pollock said there was a lot of “rewriting and manipulating and massaging” of the wording to try to appease all sides, it wasn’t enough. As the last days of the session ticked away, Assembly Republicans decided they would not hear the bill this year.
Since the measure wouldn’t have made it to voters until the next statewide ballot in March 2004, Republicans said there is time to look at the bill again next year. But that means starting over with new leaders in a new legislative session.
“I find that to be a very hollow position because the truth is we will have to start anew,” Pollock said. “There will be new personalities to deal with.”
Pollock said CFAC will look into starting a citizen’s initiative, which could place the proposed amendment on the ballot with enough signatures. But the process will take time and perhaps millions of dollars to complete.
At least time is something advocates are used to spending.
“We’re small and the open government movement is small, so the more time we have the better off we are,” Pollock said. “This is an enormous undertaking with a wonderful payoff if it succeeds.”
Amanda Lehmert worked as a summer Pulliam/Kilgore intern at SPJ’s national headquarters. She is a senior at Emerson College.