Records of lawmakers a step closer to transparency

17 Apr, 2015 by Steve Miller

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A judge has found that the records of lawmakers can be subject to open records requests, making California one of 28 states in which the records of state lawmakers are open to the public.

The April 3 ruling interprets a part of Proposition 59, passed by the voters in 2004, to bolster public access to the records of government.

“If the intent of Proposition 59 was to exclude legislative proceedings and records from its reach, it could have plainly so stated,” Superior Court Judge Michael Kenny ruled.

State lawyers contend that Proposition 59 did not address state lawmaker records and asked the court to toss the lawsuit.

Kenny’s ruling allows the Bay Area News Group and its sister Los Angeles News Group to move forward with their effort to obtain the schedules of former state Sens. Ronald Calderon and Leland Yee, who face separate federal corruption prosecutions.

A hearing on the merits of the case is scheduled for May 1.

Constitutional right of access

From the Associated Press story regarding Kenny’s ruling:

Duffy Carolan, a lawyer for the Bay Area News Group and the Los Angeles News Group, said the ruling was significant because it provides another means to challenge exemptions the Legislature has relied on to protect its records.

“This is the first time a court has ever ruled that constitutional right of access applies to the legislative branch of government,” Carolan said. “They’re claiming that their records and meetings are exempt from the constitutional right of access.”

The AP does another excellent story on state lawmakers and open records here.

Differing transparency standards

A win for the news groups would pave the way to a clarifying statute and mean the public could review lawmakers’ emails, invoices, travel expenses and personal calendars – records already available for other government officials under the California Public Records Act.

Such a legal victory would also allow California to join Illinois, Kentucky and Missouri, among other states, in holding lawmakers to the same transparency standard that applies to the rest of the public sector.

Other states have provisions in the law that exempt specified materials.

In Maine, for example, “legislative papers and reports, working papers, drafts, internal memoranda, and similar works in progress are not public until signed and publicly distributed in accordance with rules of the Legislature.”

Others, that only wave at the notion of transparency, like Michigan, are locked down and allow the public no access at all to the records of legislators.

“In all states, the legislatures claim to be open, but when you set your own rules, you get to pick and choose who’s open, and that’s what legislators do,” the late Ken Bunting, who was director of the National Freedom of Information Coalition at the University of Missouri in Columbia, told me in a 2013 interview. “They are open when it’s convenient and closed when it’s more to their convenience.”

Overstated exemptions

In the California case, “as the trial the court noted, the Legislature in drafting the text of Prop. 59 could have easily said that it was categorically exempt from that constitutional amendment,” Terry Francke, general counsel for Californians Aware, a group that promotes open government, said in an email. “It did not. The often heard observation that the Legislature exempted itself from the constitutional amendment of Proposition 59 is an overstatement.”

In states that do allow the public to access the records of lawmakers, there are often exemptions for claims of deliberative process or unfinished business.

Lawmakers haven’t touched the issue this session and have barely waved at sunshine measures since convening in December.

So far, 56 measures have been introduced that include the words “public records,” according to a review by CalWatchdog.com.

Many mentions are simply reinforcing the fact that certain records and communication are or are not subject to the state’s open records laws.

Among them:

A measure seeking to regulate the use of drones by a public entity initially sought to make drone logs “or any related record” subject to disclosure with law enforcement restrictions. The bill was later amended, with the drone text scrapped.
A bill called the “Internet Poker Consumer Protection Act of 2015” to legalize online poker includes an exemption for “proprietary” information on the application for a license to operate an intrastate poker website.
The state’s Department of Veterans Affairs would have an inspector general under a measure that would also exempt from disclosure any request by the inspector general for an investigation of wrongdoing at a state-run veterans’ home.
The first draft of a bill regarding public access to complaints against a law enforcement officer granted public access to that complaint but allowed a department to store complaints in either the officer’s or the custodial officer’s personnel file, which would potentially thwart or at least delay the public’s access to that complaint. That bill was later amended, with that language removed.
Information regarding the death of any persons in the custody of a state agency or officer would have to be posted on the state Department of Justice website under another bill. Current law allows public access to reports regarding deaths of persons in the custody of law enforcement.