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Tuesday, March 13, 2007

Sunshine Week: Your Right to Know (What Your Government is Doing)

One of the most important values in our democratic society is our free and open access to what our government is doing. Last week the Davis City Council as prompted by Councilmember Lamar Heystek and signed into proclamation by Mayor Sue Greenwald declared this week--March 11-17, 2007 as "Sunshine Week: Your Right to Know in the City of Davis."

The proclamation declares that "freedom of speech and freedom of the press are cornerstones of all democratic societies and valued as important fundamental rights by all." Moreover that "open government is a fundamental principle for our democracy and transparency and open decision-making are essential to foster trust and confidence in our public bodies."

There is no stronger supporter of free and open government than myself. In the last year, I have made many public records requests in order to keep tabs on what our local government is doing.

Locally I have found that the city is professional and generally accommodating to public records requests. There have been some notable exceptions, but for the most part, I have been able to obtain the records I want from the city. When I haven't, there are other means by which to obtain those records as we shall hopefully see within the coming weeks.

Unfortunately, in general, government has a poor record in this regard. The public records laws in California are particularly weak. As we've discussed in recent weeks, confidentiality laws are often misused, abused, and in some cases imposed where wholly unnecessary. It is one thing to protect the privacy of rank and files workers. However, positions like police chief, city manager, superintendent of schools, among other high ranking, public positions should have much less protection. The public should have the right to know why a city has fired a police chief or city manager and why a school district has fired a superintendent.

Recently, the California courts have granted tremendous amount of protection to police officers from public disclosure of discipline and other matters that again should be public record. The California public records act specifically exempts many police proceedings such as incident reports, arrest records, and other things from public records act requirements.

As the Associated Press article that ran on the front page of the Davis Enterprise puts it: "The result: Californians might not always know if beatings or shootings by officers are ruled justified or whether those officers are disciplined or labeled as bad cops."

In fact, according to the article, public records are under fire. Currently, California Supreme Court justices "are questioning whether the public has the right to know the salaries of government employees even though they're paid with taxpayer money."

As the article declares:
"For a state with a progressive reputation, California's record on open government has left it far behind many other states. In Connecticut, Iowa, Kentucky, Rhode Island and Nebraska, for example, attorneys general investigate and even prosecute public officials who fail to disclose public records.

California, in fact, has retreated by some public-access measures since voters in 2004 endorsed a constitutional amendment to protect the public's right to view government documents and attend meetings.

Passage of the amendment was billed as a watershed for public access in California. Advocates said it would limit lawmakers' ability to write loopholes into law and require officials and even state judges to narrowly interpret laws that restrict the public's access to government's inner workings."
So the California Public Records Act is fairly weak at its best. It becomes even weaker because it is difficult to enforce. Theoretically, the burden of proof is on the agency to prove that they have legitimate reason to withhold disclosure of public records. However, in practice violations of the California Public Records Act are only enforced by a citizen filing suit against the public agency when they deny a request and even if the judgment is against that agency, the result is at best an order for the government to pay legal fees. This produces according to reformers, a culture where the incentive structure skews toward a withholding of information. There are no criminal penalties for failing to release the countless other public documents citizens may seek.

Unfortunately, as we celebrate Sunshine Week here in Davis as well as nationally, our right to know is underfire. There is no more paramount right of an informed electorate to have the means to monitor and scrutinize our government. There is no greater vanguard of freedom and liberty than the freedom of the press and speech. And there can be neither if the government retains the ability to keep public records in secret where no one can scrutinize them.

Later this week, I hope to have a major announcement pertaining to this issue. In the meantime, this is an issue that we should press on all future state legislators, that we need to fight and maintain open government and open access to government documents.

---Doug Paul Davis reporting