It’s Sunshine Week again, brought to us by the American Society of News Editors and the Reporters Committee for Freedom of the Press. These folks pegged this week-long celebration to coincide each year with the March 16 birthday of James Madison, the 4th president of the United States and father of the Constitution and Bill of Rights, and especially the First Amendment.
Sunshine Week is an opportunity for Americans to count their blessings for the brilliance, persistence and virtue of our Founders to establish in brief words the values of freedom, liberty and the power to control, if we work hard enough, the institutions we have created.
Law professors are overly fond of generally describing the law as a “seamless web” in which each of the values that is expressed as a law is supported by and dependent upon every other. This is certainly true of all the laws that provide for the public’s right to know. These Freedom of Information Laws, created by statute or judicial decision, collectively provide a safety net for those engaged in self-government. Each is built from and supported by the First Amendment.
Of the five First Amendment freedoms — freedom of religion, freedom from government imposed religion, freedom of speech, freedom to petition government and the right to a free press; it is the free speech and petition clauses that support many California Sunshine laws. If used by enough of us, these laws create the power to limit and control the institutions we have created. Here are some of the most important California freedom of information laws.
The California Public Records Act (CPRA) is the law that allows each of us to access the records of government. The law covers all state and local agencies except the Legislature and the courts, which are governed by separate laws. Importantly, and this is a common theme with freedom of information laws, the CPRA presumes that all records held by government are accessible to the public upon request, unless expressly made exempt from disclosure. The CPRA gives the public two main rights: the right to inspect records and the right to obtain a copy after paying the direct costs of duplication. Copies of records held in an electronic format must be made available in any form in which the agency uses the information. While there are hundreds of specific exemptions to disclosure, the law places the burden on the agency to either produce the records or justify its decision to refuse to do so because of an exemption. There are no formalities to making a public records request and agencies are required to assist members of the public to identify records held by the agency. It is important to note the California Legislature is governed by its own law, the Legislative Open Records Act (LORA). Many believe LORA needs to be strengthened and legislation has been introduced this year to do so in reaction to the #WeSaidEnough movement and confirmed instances of harassment by elected officials.
The Ralph M. Brown Open Meeting Law and Bagley-Keene Act give all of us the right to attend and participate in meetings of local and state governmental bodies. The Brown Act covers meetings of local legislative bodies like city councils, county boards of supervisors, school boards and special district boards, while the Bagley-Keene act covers bodies of state agencies, like the Air Resources Board. These laws create five basic rights: 1. The public has a presumptive right to attend meetings of a legislative body (there are narrow exceptions allowing closure of meetings that must be strictly observed); 2. The public has a right to advance notice of the date, time and location of the meeting and a description of each item of business to be discussed at the meeting; 3. The public has the right to obtain copies of memos and background materials in support of a meeting as soon as the materials are distributed to a majority of the members of the body; 4. The public has the right to speak at a meeting; and, 5. After meeting in a permissible closed session, the body is required to publicly disclose actions taken and any documents approved in the closed session.
California’s courts — the proceedings and records of both criminal and civil courts — are presumed to be open to the public because of myriad court decisions, statutes and regulations. This is a complicated and fact-and-proceeding specific analysis, but these general principles apply: 1. Court proceedings are presumed to be open to the public; 2. An attempt to overcome the presumption of openness must be noticed to the public and the burden is on the party seeking closure to establish the existence of a compelling interest to justify closure; 3. Any order to close a proceeding must be narrowly tailored to meet that interest and go no further; 4. The court must make findings justifying closure on the record; and, 5. Findings must be specific and compelling, not speculative. Similarly stiff rules must be met to seal court records.
In 2004 California voters overwhelmingly amended the State Constitution to establish a Constitutional right of access that begins: “The people have the right of access to information concerning the conduct of the people’s business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.” While this provision is still being interpreted by the courts, it provides a powerful boost to all the laws that create a presumptive right of public access to the records and meetings of government officials.
These are powerful tools for the public to pry open the doors and files of government, but all their power lies in their continuing use by a diligent and persevering public and the journalists that support the public’s right to know.
Tom Newton is the Executive Director of the California News Publishers Association, which for 129 years has fought for the common interests of its members and the public’s right to know.