Thursday, February 7, 2002
Photo by Randy Tunnell.
Photo: Sen. Bruce McPherson, a former newspaper publisher, is backing a constitutional amendment demanding open government.
A proposed constitutional amendment introduced in the state legislature in January is gathering momentum for a public vote on the November general election ballot.
If adopted, the Open Government Sunshine Amendment would create a constitutional right to open government for the citizens of California.
Although California has a Public Records Act and other measures that provide access to government business and documents, current provisions have been criticized as ineffective.
"After 20 years of listening to people from other states and looking at the provisions, if California is not the worst, it''s got to be very close to the bottom when it comes to government secrecy," says Terry Francke, general counsel for the California First Amendment Coalition (CFAC).
Francke is a leading authority on matters involving free speech and free press issues. CFAC provided the language to Sen. John Burton (D-San Francisco), who has worked with CFAC previously and approached the group for new ideas this year. The amendment had been prepared for a previous attempt three years ago, then held on file for lack of interest.
Two local legislators, Republican Sen. Bruce McPherson and Democratic Rep. Fred Keeley, both signed on as the bill''s principal co-authors.
"That gives me a strong signal we''re going to get a broad range of support on this," McPherson says.
The Sunshine Amendment would make information on government decision-making available to all citizens, while protecting individual privacy where applicable.
It gives the public the constitutional right to not only attend and speak at meetings of public agencies, but to "inspect and copy records made or received in connection with the official business of any public body, agency, officer, or employee, or anyone acting on their behalf."
Lawmakers would be allowed to enact limitations on public access rights only for reasons of public safety, "to ensure the fair and effective administration of justice, or to provide for the preservation of public funds and resources."
Even if a piece of information is deemed to be protected, the government agency in question would need to explain what harm would be done by its release. A failure to adequately do that could force its release.
Under current law, a citizen or news agency that is denied a public records request can either accept the denial or sue in court. The Sunshine Amendment wouldn''t change those choices, it would only give constitutional weight to any court consideration.
In an ideal form of American government, the government''s business is the people''s business. That''s clearly not always the case. One need only look at the current Enron fiasco and the turmoil it''s causing for the White House for evidence that government can be less than forthcoming.
In California, the Public Records Act has been loosened significantly through use of the "deliberative process privilege," which argues that certain matters should not be released to the public.
Because of this government privilege, "You have a widening exemption from the public records law," Francke says.
That "widening" has manifested itself in all layers of government, from top echelons to city councils using closed session meetings to keep the public excluded from its decision-making.
This stems from a 1990 state Supreme Court ruling upholding a decision against the Times Mirror Co. in its request for government records. The Los Angeles Times had requested five years'' worth of travel and appointment records of former Gov. George Deukmejian. The state argued that the records should remain private because records of past travel could reveal patterns to anyone wishing to harm the governor. Likewise, five years of appointment records would be too "meddlesome" in the Governor''s past business.
Should the amendment be adopted, Francke says, Californians should not expect sudden changes in government operation. It will take court challenges to establish precedent.
"You don''t change the constitution to get quick and snappy results," Francke says. "You do it to remake the landscape and change the way government sets its priorities."
McPherson says the amendment is needed to bolster current measures.
"It''s a reinforcement of existing laws to assure that privacy laws are balanced with the public''s right to know how and why their government operates as it does," he says. "To me it''s very simplistic in a way, but it''s so critical to the operation of democracy."
McPherson was in the newspaper business for 26 years, ultimately serving as the publisher of The Santa Cruz Sentinel. He says he doesn''t think it''s the norm for state and local governments to operate in secret, but questions have arisen.
The bill has to be heard in the Senate''s Government Organization Committee and the Constitutional Amendment Committee before a vote of the full Senate. If it passes by a two-thirds majority in the Senate it must go to the Assembly and garner the same two-thirds majority by the end of June to make it on the November ballot.
Two separate attempts to improve the Public Records Act have been vetoed by Gov. Gray Davis.
McPherson says committee hearings have not yet been set.
Besides CFAC, the Sunshine Amendment is sponsored by the California Newspaper Publisher''s Association (CNPA) (of which the Weekly is a member) and supported by the League of Women Voters.
On Tuesday, Feb. 5, Tom Newton, director of the CNPA, met with representatives of the state League of California Cities and the California State Association of Counties to hash out their concerns. Those groups are the only to resist the measure so far.
"We haven''t really crossed swords on this but they are taking it very seriously," Newton says.