California proponents of good government could use some good news.
So how about this: On May 23, the California Assembly unanimously passed legislation strengthening the public’s ability to learn what the government is doing in its name.
What we’ve learned lately is alarming. Earlier this year, Attorney General Xavier Becerra threatened reporters with misdemeanor charges for possessing information they lawfully received. He doubled down in March, saying, “I don’t get to ignore the law,” despite the fact that his office was doing just that by refusing to disclose police misconduct records.
In April, a Lodi school superintendent threatened to fire a high school journalism adviser over a lawful student article (Full disclosure: I represented the adviser and student reporter in their successful fight to publish).
In May, police raided a San Francisco journalist’s home and office in clear violation of the law. Afterward, the police chief said the reporter committed a crime by receiving leaked information.
Imagine what we don’t know.
AB289 certainly won’t prevent government misconduct. But it would help put more muscle behind the open-records laws Californians use to try to root it out.
The state constitution protects our right of access to public records. But exercising that right is not so simple.
The California Public Records Act is a complicated law, riddled with exceptions. Under its terms, the state officials who control public records effectively hold all the cards in deciding whether the law requires their release.
So when a state agency denies a records request, the requester has only two options: either take the state agency at its word that the law was properly applied, or gear up for a lawsuit.
Option one? Trust is earned and maintained. And with all respect to those public servants who get it right, the public’s trust is seriously and rightly depleted these days. But the second option takes time, burdens the court, and maybe most distressingly, requires you to get a lawyer (if you want to do it right).
That’s why AB289 is a good bill. As passed by the Assembly, it would give everyone seeking records from a state agency the right to a second, independent opinion without a court battle.
It creates the office of the California Public Records Act Ombudsperson, empowers the office to investigate public-records denials, and, when warranted, overrule the agency and order it to disclose the records.
Importantly, AB289 won’t take away the right to court review. Nor does it require the requester to go to the ombudsperson before going to court.
State Assemblyman Vince Fong (R-Bakersfield) said before the Assembly vote that allowing the public to pursue this optional layer of review would help “bring transparency, fairness, and accountability to our government.” Fong, who deserves praise for sponsoring this bill, is right.
AB289 is not a radical proposal. At least 19 other states have some version of open-records referees, according to the National Conference of State Legislatures. But only half of them are empowered to require disclosure. So California still has room to help lead on an issue of nationwide importance.
The bill is not perfect. The ombudsperson’s authority should cover local government decisions as well. Local officials are no better at public records than their state counterparts.
It should also address the possibility of a state agency disregarding the ombudsperson’s order to disclose records. Agency fines for such defiance, maybe payable to the requester, could help.
But these are improvements the Senate could easily make this summer before passing AB289 to Gov. Gavin Newsom’s desk. In the meantime, every incorrect application of the California Public Records Act, whether by accident or worse, weakens our collective rights a little more.
To avoid atrophy, Californians should support AB289. Its passage would allow us to lead by example, and, one may hope, start making the right kind of headlines.
A former journalist, Matthew Cate is a lawyer at Farella Braun + Martel LLP and member of the San Francisco Sunshine Ordinance Task Force.