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.

Steve Miller can be reached at 517-775-9952 and avalanche50@hotmail.com. His website is www.Avalanche50.com

Graphic by flickr user Democracy Chronicles, used via a Creative Commons license.

But this tactic and/or genuinely aggrieved reaction is being fine-tuned as the years go along. The first time this occurred to me was in early 2001 when auto-racing superstar Dale Earnhardt Sr. was killed in an awful wreck at the Daytona 500.

The New York Times’ amused, condescending front-page story about the emotional reaction to Earnhardt’s death in the South and some other parts of the nation led conservative intellectual journalist Christopher Caldwell to suggest the story should have been headlined “Inexplicably Treasured Cracker with Mustache Immolated in Bizarre Folk Ritual.”

Now Slate does this sort of analysis/satire all the time [with a liberal slant, unlike Caldwell]. So do lots of other folks.

But perhaps it’s time for this sort of pointed, judgmental angle to emerge in California coverage of the latest scandal involving Contra Costa County. Public uproars over stories involving generous public-employee compensation in the wealthy county are a staple of Bay Area commentary and news coverage. Here’s the latest example from Dan Borenstein of the Bay Area News Group:

In their pursuit of a ridiculous 33 percent salary increase, two Contra Costa supervisors may have violated county workers’ civil rights and, possibly, crossed a criminal line.

The FBI, state Attorney General Kamala Harris and the county grand jury should investigate. Contra Costa voters deserve to know what happened and whether Supervisors Karen Mitchoff of Concord and Mary Piepho of Discovery Bay are fit to continue holding office.

A federal civil rights lawsuit filed Tuesday alleges the two supervisors threatened to retaliate against union backers of a referendum drive to block the raise. A television interview with Mitchoff buttresses those claims.

As referendum backers on Jan. 2 turned in nearly 40,000 signatures, far surpassing the 25,407 needed, Mitchoff, speaking with reporters from ABC7 News and KTVU, issued a warning to labor leaders.

“As I’ve told them many times, you may have won the battle, but I’m not sure you won the war.” Asked what she meant by the war, she replied, “We’re going to be going into contract negotiations over the next few years.”

The explicitness of this is unusual even in California hardball politics. Based solely on what is already in the public record, it seems awfully likely that were this to happen in a Third World country covered by U.S. media, the judgment would be harsh, with cliches about “Banana Republics” run by greedy despots.

On the other hand, despite the decline of newspapers, there are arguably more people looking for government wrongdoing than ever before. This could lead to an even-more cynical public that sees government officials trying to enrich themselves using their official powers as the norm in rich countries — not just those in the Third World.

The Legislative Analyst’s Office released a terse analysis that depicted the latest business plan as vague, unsubstantiated and not credible – and then concluded with this bombshell:

“The Proposition 1A bond measure explicitly prohibits any public operating subsidy. However, the plan … assumes some form of revenue guarantee from the public sector to attract private investment. This generally means some public entity promises to pay the contractor the difference between projected and realized revenues if necessary. The plan does not explain how the guarantee could be structured so as not to violate the law.”

In an e-mail, a spokesman for the California High-Speed Rail Authority, Jeffrey Barker, said the authority was responding to the criticism by putting together a business plan that “does not require government operating subsidies” and could comply with the wording of Proposition 1A by offering private investors a “ridership guarantee” instead of a “revenue guarantee.”

But a ridership and a revenue guarantee are the same thing because ridership times ticket price equals revenue. The Legislative Analyst’s Office told us yesterday that it agrees.

That’s been the giant fundamental obstacle ever since to the $68 billion bullet train project getting substantial private investments.

Meet the latest journo to fall for the CHSRA spin

Nevertheless, ever since then the bullet train folks have periodically gotten reporters around California to write stories about the much-improved prospects for private investment. The latest example came over the weekend, when Jessica Calefati of the Bay Area News Group managed to write a long article about, yes, renewed hopes for private investment without even mentioning the LAO-cited obstacle. Sheesh.

SACRAMENTO — On life support just a few months ago, California’s bullet train has been resuscitated.

Last week, demolition began in Fresno to clear the way for the first stretch of track. More significantly, private investors across the country and abroad are expressing new interest in bankrolling part of the $68 billion project.

The lawsuits that have stymied the plan aren’t yet resolved, but a budget agreement brokered by Gov. Jerry Brown that guarantees the San Francisco-to-Los Angeles rail line its first funding stream — one that leading economists say could reach about three quarters of a billion dollars annually — has emerged as a “game changer,” high-speed rail experts say.

Inking a deal that will send the project hundreds of millions of dollars a year in fees collected from polluters is the signal the private sector was waiting for, according to formal letters of interest the state received last month. With only a fraction of the project’s funding in hand, the state needs private investment for about one-third of the final price tag to have any hope of completing the rail line.

In the past, rail authority officials have tried to confuse reporters by citing construction and project management companies’ interest in being contractors on the multibillion-dollar contracts that will be given out if the project goes forward as being tantamount to interest in investing it. Of course private companies want to get big contracts. That doesn’t mean they’re investors.

Look at the company’s website — it’s no investor

Dumb, de dumb dumb: That is just what’s happened again. Look at this paragraph from the BANG story:

But it’s significant that Vinci Concessions, a French company that is considered a world leader in developing highly technical high-speed rail projects, is one of the nine companies that eagerly wrote to California about the bullet train last month.

Groan. Look at Vinci’s website. Look at Vinci’s standard contracts. It is primarily a contractor seeking work from governments pursuing ambitious transportation projects. It’s not an investor.

It’s something the company makes clear in its key pitch:

VINCI Concessions is the leader in almost every joint venture it establishes and has demonstrated its ability to attract long-term investors.

It’s not the investor. It’s the allegedly shrewd project manager that allegedly can attract investors.

Back to you, Jessica Calefati. Back to you, California High-Speed Rail Authority. Back to you, Dan Richard and Jerry Brown.

Where are the investors who want to partner with California on the bullet train as opposed to being contractors on the bullet train?

They can’t cite any — because as the LAO noted 54 months ago, revenue and ridership guarantees are illegal under state law. And no private investor wants to partner with California without such guarantees.

I hope James Fallows, the respected East Coast journo who has come out as a CA bullet-train fan, sees this rank manipulation by the rail authority for what it is: confirmation he shouldn’t trust the rail authority.