Remember Proposition 59? That’s the proposition passed in November 2004 with support from 83 percent of the voters, the one that was supposed to toughen California’s open government laws. For some reason, California courts, the governor and attorney general seem to have forgotten about it.

I’m writing about this issue in an op-ed that, hopefully, will be appearing in the San Diego Union-Tribune soon, but here’s a quick preview – summarizing the recent events that have made me wonder whatever happened to Prop 59.

  • On Aug. 31, the California Supreme Court ruled that records relating to a deputy sheriff’s appeal of his termination were not open to the public under the California Public Records Act. The case, Copley Press, Inc. v. Superior Court, arose when the San Diego Union-Tribune sought access to records of a Civil Service Commission hearing in the appeal.

The Commission withheld most of its records, including the deputy’s name. The few documents eventually produced revealed that the deputy was fired based on his conduct in responding – or, actually, failing to properly respond – to a domestic violence call.

The California Supreme Court ruled that the records could be kept secret because they were personnel records maintained by the deputy’s “employing agency” – even though the records were not maintained by the officer’s employer (the sheriff’s department), but by the independent Civil Service Commission.

  • On Sept. 20, state Attorney General Bill Lockyer issued an opinion advising that prosecutors may not produce records regarding a criminal defendant’s prior offenses, parole status or probation status. Although local prosecutors have routinely released information from defendants’ “rap sheets” in the past, the attorney general’s opinion makes that information off limits.
  • In early Oct., Governor Arnold Schwarzenegger vetoed a bill that would have made it easier for the public to get access to government records. Assembly Bill 2927, which was passed unanimously by both houses of the California State Legislature, would have required state agencies to provide public records information on their Web sites and to provide an online records request method.

The bill also would have required the state attorney general to review an agency’s denial of a public records request (if asked) and provide a prompt written opinion on the validity of the denial. The proposed law also would have enacted stiffer penalties for agencies that fail to comply with the open records law.

  • On Oct. 31, a California appeals court gave a narrow interpretation to the Ralph M. Brown Act, California’s open meetings law. In Wolfe v. City of Fremont, the court OK’d the actions of a city manager who individually contacted each city council member, in advance of a public meeting, to drum up support for a new policy. The court said the city manager did not violate the open meetings law – even though the council members reached a consensus based on their private conversations – because the city manager had not acted as an “intermediary” among the council members.

Proposition 59 says “[t]he people have the right of access to information concerning the conduct of the people’s business.” It’s too bad that, only two years later, the courts and state officials are finding ways to limit access instead of increase it.


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