Citizen groups, not press, most vulnerable to change in public records law

Open government, cagle, June 21, 2013June 21, 2013

By John Hrabe

Just after 11 a.m. on Tuesday morning, one of the state’s leading Second Amendment groups sent out an urgent alert to its members.

“FIRE MISSION: OPPOSE SB 71 Sec. 4 NOW!!,” the email from Calguns Foundation urged. “11th Hour Budget Bill Threatens Your Right to Public Records.”

Gun advocates weren’t the only group to mobilize their members to oppose changes to the state’s public records law that were contained in the state budget’s trailer bills.

“Legislative Alert!!! Stop CA SB 71!!” pleaded Peggy Rossi, chair of the legislative watch committee for the California State Genealogical Alliance. “Please read below and contact your representatives as soon as possible. This could have serious consequences for records access.”

If it seems odd for gun owners and genealogists to mobilize their networks to defend California’s Public Records Act, that’s because the press coverage of the public records law kerfuffle has unsurprisingly focused on the press themselves.

“My friends in the media are using words like ‘gut’ and ‘eviscerate’ with relation to the trailer bill at issue, and I think I even saw the phrase ‘war on transparency,’” wrote Scott Lay, publisher of The Nooner, a must-read, daily update on state politics. “Will the world end and all of our newspapers no longer have access to public information? Of course not.”

By late Thursday morning, the controversy appears to have subsided with a joint statement from Senate President Pro Tem Darrell Steinberg and Assembly Speaker John A. Pérez.

“We agree there needs to be both an immediate fix to ensure local entities comply with the California Public Records Act and a long-term solution so the California Public Records Act is not considered a reimbursable mandate,” the legislative leaders said.

There’s no question that reporters use the state’s public records law to obtain documents. But they are far from the most frequent users of it, or the group most susceptible to a change in the law. Advocacy groups, citizen activists and even opposition researchers, the very people routinely ignored by the mainstream media, rely on the law to redress grievances with local governments. It’s also these marginalized groups that commonly lack the resources to fight noncompliance in court.

Calguns vs. S.F. Sheriff

In 2011, Calguns Foundation believed that then-San Francisco Sheriff Michael Hennessey was failing to comply with California’s conceal carry laws. Under state law, all agencies that have the authority to issue firearm permits must create and publish a written policy on the process. The law, authored in 1998 by then-Assemblyman Rod Wright, ensures that the controversial program is uniformly applied.

Ultimately, it was a public records request that confirmed the group’s suspicions: the sheriff had selectively enforced the law. The office had awarded a permit to the sheriff’s legal counsel, while simultaneously denying other permits. It was only with the documents obtained by a public records request that the group had the necessary evidence to force compliance.

“While the Sheriff may have grown accustomed to following only those laws he chooses, we intend to hold the County’s highest law enforcement officer to the same laws he took an oath to uphold,” Gene Hoffman, chairman of The Calguns Foundation, said in a 2011 press release that was never picked up by the area media. “The rights of San Francisco residents are no less valuable than those of his employees and friends.”

San Francisco wasn’t an isolated case, but a part of Calguns’ program to enforce compliance with the law.  A similar 2010 request filed by Calguns with the Ventura County Sheriff’s office was denied. Calguns was forced to file a lawsuit, which it won.

“Since we started our Carry License Initiative, CGF has had the great pleasure of supporting and, where possible, collaborating with fantastic open government groups like the First Amendment Coalition and CalAware on matters relating to public records and meetings,” Combs said. He added that his group was looking forward to working with the Electronic Frontier Foundation and ACLU, two partners that might sound like a political odd couple.

Steinberg’s clever Catch-22

That citizens groups are routinely ignored by the media made the state Senate’s initial solution a clever Catch-22.

“If we get word from one public entity, one public entity, that they are not complying with the law, the Public Records Act, we will then pass that bill,” Steinberg promised the public on Wednesday afternoon.

The Steinberg promise was clever because it appeased the press, while ignoring the meddlesome citizen groups that frequently use the law. When I asked Calguns Foundation whether the media covered the 2011 incident with the S.F. Sheriff, he said, “As far as I can recall, the press didn’t do anything with it.”

That’s the Catch-22. How would the Senate ever “get word” of noncompliance, if the press routinely ignores the very groups that file public records requests?

Public records unequal enforcement

Assemblymember Kristin Olsen, R-Modesto, one of the Legislature’s leading advocates for open government, points out that transparency laws are only effective when equally applied. “To truly support open, transparent government, you have to be willing to hold yourselves up to the same standards,” Olsen said.

Yet, as it stands today, even if the public records law remains intact, the law isn’t uniformly applied. Public agencies can illegitimately deny public records requests from groups and individuals without the means to pursue their case in court.

Last month, I filed a public records request with the City of Fresno. The request, which was intended to shed light on the secret search for a new Fresno State University president, was denied and is currently being appealed. If that appeal is denied, I won’t have the money to pursue it in court.

Capitol reporters rarely use Public Records Law

Big media outlets with their powerful megaphones, however, can ask politely and get results. In fact, the mere threat of a public records request is enough for some reporters to enforce compliance. contacted a dozen Capitol reporters for the number of times they’ve submitted a public records request in the past year. Only four responded.

“Sorry, that’s a matter of utmost secrecy,” joked the Sacramento Bee’s Jeremy White on Twitter.

His Bee colleague, Dan Walters, said that he hasn’t filed any public records requests in the past year, although he pointed out the number only applied to him and not the paper as a whole. “I doubt there’s any central tally since reporters commonly do them on their own,” Walters said.

The Orange County Register’s Brian Joseph, who also serves as the president of the Capitol Correspondents Association of California, didn’t have time to check his correspondence log, but estimated that he’d filed dozens of public records requests last year.

“I file dozens of record requests each year but I ask for documents easily several hundred times a year — and those asks are also record requests under the law,” said Joseph, whose 2008 investigation into the California Statewide Communities Development Authority required extensive documentation from the state agency.

News10 Sacramento’s John Myers, another of the Capitol’s best reporters, said that he’s filed three public records requests in the past year and estimated that he’d used the law another half dozen times to “politely” obtain key documents.

“The PRA should usually be the last resort, not the first demand out of the gate,” Myers said. “I more often find asking politely, and with time to respond, gets results.”

That’s a luxury not afforded to smaller outlets or citizen watchdogs.

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