Letting the sunshine in
Open government advocates fight the tide of official secrecy, with some recent success
A dense, covering cloud has progressively shadowed some of California’s fundamental government “sunshine” policies. In recent years, access to government information has been hindered, prompting First Amendment activists to question shady administration policies.
Obscure provisions of the California Public Records Act seemed to have eclipsed its more fundamental directives. The concept of an open government—the foundation of a democracy—is currently being redefined. Local activists are attempting to change policies and shed light on the need for a sunshine government.
The California First Amendment Coalition (CFAC)—an organization whose primary mission is to “promote and defend the people’s right to know”—is acting as a torchbearer. Under the leadership of its recently appointed president, Richard McKee, the CFAC is joining forces with policy-makers, attempting to change public accessibility to government records and encourage public scrutiny of government activity.
Ten years ago, Richard McKee “didn’t really know how government worked.” Now, this Pasadena City College chemistry professor has been unanimously elected the CFAC’s first non-journalist president. He’s passionate and determined. Even his mannerisms exude confidence and motivation. And it all started at a city council meeting.
He entered the meeting a little curious about city politics and left enraged. The mayor’s indifference to public opinion and the “shaking of his finger at the audience” incited McKee to crusade.
“It didn’t seem right. It didn’t add up,” McKee said. “I thought, ‘It can’t possibly be this way.’ ”
He dedicated the next few years to comprehending the California Public Records Act, the Brown Act mandating open meetings and civil procedures.
“For those who think the Brown Act has no teeth, they are wrong,” said McKee. “It provides us with the ability to embarrass public officials.” And that’s just what he did.
Despite a rocky start, with two initial defeats in the courts, McKee is on a winning streak, with eight open government victories in recent years. His achievements include successful lawsuits against the Chino Unified School District, the city of Claremont, the California Joint Powers Insurance Authority and Three Valleys Municipal Water District.
“We need to know what’s going on,” said McKee. “We need to know the issues. We need to know the facts. Local governments need to have local meetings, and the public needs to be able to participate. Once we lose that ability, then we elect dictators and have no idea what priorities they set.”
Though the CFAC is predominately made up of journalists and lawyers, the fact that McKee is not a journalist reflects the organization’s stated mission: helping all citizens—not just journalists—gain greater access to the operations of the government.
“The press is, and has been, ready to push government officials toward the sunshine,” McKee said. “But I’m convinced that only through a partnership with members of the public will open government be guaranteed.”
But the powerless isn’t the only group with which CFAC is partnering up. Through alliances with powerful public officials, the group is pushing new laws to open up government and redefine the meaning of sunshine.
On January 1, a new provision of the California Public Records Act went into effect requiring that public agencies assist document requesters in making “focused and effective requests” by responsively informing where the desired information can be obtained.
The provision was made in response to an audit of public agency responsiveness organized by the CFAC and the Society of Professional Journalists. The investigation revealed that these agencies denied 77 percent of requests for documents, even though there was no apparent reason for the refusal.
Assemblyman Lou Papan (D-Millbrae) designed Assembly Bill 1014, which created the change in response to the study and was signed by Governor Gray Davis last September.
And the CFAC isn’t stopping here. They, along with the California Newspaper Publishers Association, are now pushing for the Constitutional Sunshine Amendment, SCA 7, legislation that would allow voters to further strengthen the public’s right to access government records.
SCA 7 attempts to define just how open California should be, providing the public with access to find out what the government is doing and the ability to express their views at government meetings.
The CFAC believes that existing laws have not stopped prevalent secrecy in government. Basically, SCA 7 strengthens the people’s right to know by making it a fundamental, constitutional right rather than a legislated right.
The creators of this law understand that in some circumstances exemptions are logical. But under this law, the government would have to state exactly why secrecy is necessary. The CFAC says that SCA 7 obliges government agencies to follow the same fundamental rules that a California judge is required to use in “justifying the closing of a court hearing or sealing a court record.”
“I look to persuade local officials to open their deliberations beyond what the law requires, explaining to them that secrecy breeds unnecessary suspicion and distrust,” McKee said.
Senate President Pro Tem John Burton has agreed to sponsor SCA 7, maintaining that there are “so many loopholes in the system, that we don’t really have an open government anymore.”
He said he felt a sense of duty to launch this bill.
“If you’re doing the public’s business, and representing the public, and the public pays your salary, they have the right to know what the hell is going on,” Burton said.
Forward and back
McKee believes that now, more than ever, the public should embrace open government. He reflects on the Nixon administration of the early ’70s to illustrate the need for an open government in the current state.
“When surrounded by ‘yes’ men and women, perspective and objectivity are lost in favor of the ability to rationalize otherwise unthinkable, selfish acts of those in power,” McKee said.
CFAC takes U.S. Attorney General John Ashcroft to task for overreacting in his actions by inhibiting free speech and discouraging public scrutiny. McKee said that Ashcroft has attacked our First Amendment protections, when he said that only those who would challenge the administration’s post 9-11 limitations on individual liberties only aid terrorists, erode our national unity and impair our resolve.
In late December, the CFAC developed a resolution accusing Ashcroft of promoting “an environment that is hostile to open government.” The resolution charged Ashcroft with violating our basic rights “that ensure free and open dissent, due process of law and government by and for the people.”
The resolution was sent to Ashcroft, the White House and members of Congress. Kent Pollock, executive director of the CFAC, said Ashcroft didn’t respond. But CFAC has received numerous e-mails expressing support.
“While, in the wake of September 11, the country seems to be moving toward greater secrecy,” McKee said, “I believe that we will soon recover, returning to the recent demands of more and more openness in government.”