CalAware

Proposals for Open Government Reform, 2018 1

CalAware Legislative Proposals for Open Government Reform
Public Information and the California Public Records Act (CPRA)
The Deliberative Process Privilege Needs Definition

The Problem:
This common law privilege—one not recognized in the Evidence Code or defined as an
exemption from disclosure under any other statute—was cited by the California Supreme Court as a
justification for denying public access to five years’ worth of the appointment calendars of Governor George
Deukmejian, sought by the Los Angeles Times under the CPRA.

The 1991 decision in Times Mirror Co. v. Superior Court, 53 Cal.3d 1325 concluded that if the public knew who
was meeting with the Governor that would disclose the Governor’s thinking and degrade the quality of his/her
deliberative process, since people would be reluctant to participate in such meetings if their doing so became
widely known. Not what was said, but merely the fact that the meeting took place.

Since then the Governor’s special need for such discretionary confidentiality—also known as the executive
privilege—has been recognized in two appellate decisions dealing with the power to appoint persons to mid-
term vacancies on boards of supervisors. But another appellate case extended the privilege to protect the
deliberations of members of a city council, and since then the privilege claim is too often used the keep secret
the development of policy by legislative bodies. This is utterly contrary to the principle underlying the Brown
Act that such policy development and deliberation are to be open to public examination and to some extent
even public participation. Some local bodies have even tried to extend the privilege to communications among
staff members during the policy development process.

The Correction:
Amend the CPRA to codify the Times Mirror Co. principle, but narrowly. Add an express
exemption from disclosure for records revealing the advice given to the Governor, or his or her mental
processes, concerning and preliminary to a specified and disclosed decision. To qualify, such advice must come
from and originate with executive branch advisors, not consultants, lobbyists or others, who are either
professionals paid to take the heat of the kitchen or those outside the government whom it is vital to be able
to link with campaign contribution disclosures and other indicia of potential improper influence. This
exemption would parallel and complement the existing exemption for the Governor’s correspondence. But it
would also expressly exclude availability of the exemption for legislative bodies subject to the Brown Act and
the Bagley-Keene Open Meeting Act, their members and their advisors.

Overcharging for Digital Copies of Records Needs to be Ended

The Problem: The CPRA language providing access to government’s electronic records dates from the
1990s and badly needs updating to reflect a completely transformed digital environment. In particular, the
rates charged for copies of electronic records bear little relation to the legal standard for recoverable “direct
costs of duplication,” as understood in the paper domain. The California State University System, for example,
charges the same amount for copies of a pdf document as for the paper document: 20 cents per page. Also,
many agencies charge a substantial fee for extracting data from an existing database whether or not any new
programming has to be done to permit the extraction.

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 CalAware Proposals for Open Government Reform, 2018 2

The Correction:
 Amend the CPRA to prohibit charges for copies of pdfs, or for data extracted from a
database if no new programing is required to permit the extraction. Use the clarification already found in the
California Rules of Court: "For purposes of this rule, selecting data from extractable fields in a single database
using software already owned or licensed by the judicial branch entity does not constitute creating a record or
compiling or assembling data."

Attorney General Needs to Weigh in on Access Denials

The Problem:
If a public agency denies access to a requested record the requester very often—perhaps
even typically—has no sense of how legally well-founded that denial is, or what the prospects of success for
suing to get access might be. Even experienced requesters’ attorneys who consult case law may sometimes be
unsure of the strength of their case for access. In such instances it may be necessary to sue to find out—or to
simply accept the denial and walk away. Some mechanism to provide a reality check to both requesters and
denying agencies is badly needed to reduce the necessity of litigation.

The Correction:
 AB 2927 of 2006 by then Assembly Member Leno would have required the Attorney
General, upon request, to provide a relatively prompt and brief public opinion on the validity of a public
agency’s denial of access sought under the CPRA. The opinion would have no binding effect but would provide
either the requester or the denying agency, as the case might be, with support for its position sufficient to
avoid litigation. AB 2927 was vetoed because of both its anticipated high cost and the interest conflict created
when a public agency advised by the Attorney General had its access denial referred for AG review. The basic
provisions of AB 2927 should be revised with two changes. Requesters should be required to pay a review fee
based on one hour’s time of a deputy attorney general until actual costs of the program are known, with a
one-year experience report to the Legislature. And any denial by an agency advised by the Attorney General in
any matter should be exempt from AG review of CPRA denials.

Public Agencies Need to Base Their Access Denials on the Public Interest

The Problem:
The CPRA recognizes three different species of exemption from disclosure. One is where a
privilege or other law outside the CPRA flatly overrides or even prohibits public access, for example in the case
of attorney-client communications, personal medical history or tax return information. The second is where
the government is given the discretion to deny access, while not mandated to. The third is where, despite any
express authority to deny access, the public agency can do so if it can show that on the facts of the particular
case there is a greater public interest in withholding than in disclosing the information. The latter “balancing
test” or “catchall exemption” acts as a wild card for justifying secrecy. The result is a fundamental structural
imbalance in the CPRA—a tilt favoring secrecy based on ad hoc considerations of overriding public interest.
Consequently, agencies with discretion to withhold public records (the second category), with no obligation to
justify or explain the need to do so, treat their discretion as a virtual mandate to withhold records. Using their
discretion to release information is essentially never considered, much less exercised.

The Correction:
 To provide policy parity, amend the CPRA to allow access to records normally subject
to discretionary exemption based on a demonstration that, under the given circumstances, the public interest
in disclosure outweighs the public interest in denial of access. The result: just as the government has the
power to make a persuasive argument for at least temporary or one-time withholding of information to serve
a defined public interest, a requester is able to do likewise on behalf of a temporary or one-time override of
the normally imposed secrecy. This leveling of the field would not affect first-category rules that flatly prohibit
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 CalAware Proposals for Open Government Reform, 2018 3

public disclosure, only situations where an agency is allowed to exercise its judgment to permit access—but
now in practice simply never does so.

Dismissals of Unworthy Peace Officers Need to be Publicly Discoverable

The Problem:
Case law interpretation of the confidential treatment given to the contents of peace
officer personnel files holds that, unlike the case with all other public employees, no information may be
disclosed as to even confirmed misconduct leading to the termination of these officers for dishonesty,
brutality or other abuses of power and authority. Citizens have no way of determining whether a newly hired
officer in the local police or sheriff’s department was fired from his or her last job for such offenses.

The Correction:
 Require the Commission on Peace Officer Standards and Training to disclose not only
the beginning and end dates of an officer’s employment with a particular department—data which are now
matters of public record—but also if the officer’s separation was a termination for cause. Require law
enforcement employers in such cases to disclose on request under the CPRA the complaint(s) and
investigative finding(s) that resulted in such terminations.

Open Meetings and the Ralph M. Brown Act

Commitment of Public Funds or Assets Must Have Timely Transparency

The Problem:
The Brown Act not only permits local government bodies to consider and instruct
bargaining agents or attorneys on matters being negotiated with other parties—employee unions, real
property dealmakers, litigation adversaries involved in settlement talks—it allows these officials to use closed
sessions to approve binding agreements, with the public informed of the agreement only afterward. The result
can be costly and irreversible commitments of public funds and assets with no public awareness, much less
opportunity to comment prior to locking these decisions in. This need not be the case. For example, the
Education Code has a considerably more transparent process for school boards to engage in negotiations with
employee unions, while cities, who handle bargaining under the Brown Act, are vulnerable to seeking
bankruptcy because of imprudent employee union commitments entered into with no public awareness.

The Correction:
 Amend the Brown Act to require the text of all local governing body agreements of any
kind involving the commitment of public funds or assets to be announced and attached to the agenda of any
meeting at which approval is ought, and confine such approvals to regular meetings. Submit employee unit
bargaining in cities, counties and special districts to the same transparency procedures as the Education Code
requires for school districts.

Special Meetings Need to Be Reserved for Special Purposes

The Problem:
The Brown Act permits a local government body to hold a meeting off the regular
schedule or at a different place (or both) for any purpose it chooses, and after only 24 hours notice, not the 72
hours required for regular meetings. Many if not most local agencies have special meetings only infrequently,
for fairly predictable purposes. But some hold special meetings on the same day as regular meetings, which
allows them in effect to collapse the 72 hour notice period to only 24 hours for any subject normally destined
for a regular meeting for which they would prefer to arouse less advanced public attention. At least one local
Californians Aware, 2218 Homewood Way, Carmichael, CA 95608 info@calaware.org (916) 487-7000
 CalAware Proposals for Open Government Reform, 2018 4

body even schedules special meetings for certain topics during regular meetings, adjourning and then
reconvening the latter as bookends. These maneuvers are nothing but gaming the rules to minimize public
awareness and participation.

The Correction:
 Amend the Brown Act to prohibit holding special meetings on the same day as regular
meetings, and limit special meeting purposes to:

1. take action on an urgent matter that must be addressed sooner than the next regular meeting, such as
action required to avoid a specified substantial and irremediable adverse impact that would occur if the action
were delayed;

2. comply with a deadline imposed by a court, by law or by legally binding agreement or one determining
eligibility for a grant, gift or other valuable benefit;

3. take a purely ceremonial or commendatory action of no known or reasonably forseeable controversy,

scheduled by another person or organization, on a date over which the city had no control;

4. address a matter of sufficient complexity, controversy or both that considering it at a regular meeting would
leave insufficient time to address more conventional business on the agenda; or

5. meet at a location outside the city for purposes permitted by the Brown Act, or at a location within the city
of sufficient capacity to accommodate an anticipated public attendance significantly larger than experienced
at ordinary regular meetings.

Brown Act Enforcement Needs Relevant, Probative Evidence

The Problem:
In a 1999 case the Court of Appeal held that members of local government bodies could
not be questioned about things discussed in closed session, as part of litigation discovery to determine
whether the Brown Act had been violated. This creation of a virtual privilege outside the Evidence Code means
that absent an actual voluntary admission by a member of the body—which can then be denied by others
present—there is no way to acquire evidence confirming whether matters have been discussed in closed
session with unlawful secrecy.

The Correction:
 Allow members of local bodies to be subjected to normal processes of discovery as to
particular discussions in closed session, in an action to enforce the Brown Act, after appropriate foundation
suggesting a possible violation, and subject to a protective order forbidding the plaintiff’s counsel from
disclosing the information learned to any person, including the plaintiff, until it is accepted by the court as
admissible evidence of a violation.

Californians Aware, 2218 Homewood Way, Carmichael, CA 95608 info@calaware.org (916) 487-7000