Agencies scrutinized for skirting the state’s open meeting and public records laws
Lynn Shepler did not think her request was unusual. Having lived with Lyme disease for four years, the Mountain View resident was keenly interested in observing for herself the state’s newly created Lyme Disease Advisory Committee. So she made the two-hour trip to Sacramento April 27 for the third meeting of the LDAC.
Yet what she encountered upon her arrival illustrates the barriers citizens face in accessing their government.
Shepler said that she was told by the Department of Health Services’ (DHS) Vicki Kramer that while the committee had “informally” agreed previously that their meetings would be closed to the public, Shepler could attend this time because she had traveled from out of town. Kramer, chief of the department’s Vector-Borne Disease Section, confirmed this account.
But Kramer and other DHS officials have waffled considerably in subsequent weeks when asked if LDAC meetings are required by law to be open to the public, characterizing the issue as a “gray area.” Although the department recently decided to open the August 7 LDAC meeting to the public, Shepler and other Lyme disease sufferers maintain these meetings were supposed to be open in the first place and note that one open meeting does nothing to ensure that future meetings will be accessible.
The LDAC case is but one small example of the difficulty Californians still have in accessing their government, despite laws like the California Public Records Act (CPRA) and Ralph M. Brown Act requiring open meeting.
“It’s really unfortunate,” said Kent Pollock, executive director of the California First Amendment Coalition (CFAC). “Not unlike so many local and state agencies, it appears that the DHS places no value on public input and public scrutiny. Well, there is great value in public scrutiny.”
For example, employees in the governor’s press office routinely tell people that requests for public information must be made in writing and, once done, will take 10 days to receive—actions that Pollock said are “totally improper” and against the law. In fact, a recent state appellate court decision said that public records act requests do not have to be made in writing.
Additionally, the California Public Records Act states that while public agencies may take up to 10 days to process certain requests, agencies cannot use that timeline to hold up requests if the information requested is readily available and clearly falls within what is releasable information under the CPRA.
“Anecdotally, we certainly know less about state agencies than local agencies, with regards to compliance,” Pollock said. “But the examples we have suggest things are not open, as we’ve seen in the governor’s office.”
CFAC is currently preparing a lawsuit against DHS—and possibly the governor’s office and the California Public Utilities Commission (CPUC)—for DHS’ refusal to release two reports detailing the dangers of electromagnetic forces around transmission lines.
Pollock said the reports—10 years and $10 million in the making—were supposed to be released before the May 7 meeting of the CPUC’s EMF Stakeholder Advisory Committee. According to Pollock, the meeting was canceled three days before it was supposed to have been held and no further meeting was rescheduled. The DHS is withholding release of the reports until the CPUC can review the studies.
“We believe the more likely reason is that the governor does not want any studies to surface right now that might disclose the possible liability of exposure to elevated levels of electromagnetism around transmission lines because he’s getting ready to purchase the transmission grid,” Pollock said.
DHS spokeswoman Lea Brooks said her department prepared the risk evaluation studies under contract to the CPUC. Therefore, she said, the decision to release the study is the CPUC’s to make. Calls to both the CPUC and the governor’s office went unreturned.
The CFAC suit is significant in that it highlights a problem yet to be addressed by state officials. Currently, private citizens who are denied access to public records by a state agency have no recourse, other than the courts, to force an agency into compliance. Furthermore, Governor Gray Davis has vetoed three bills that would allow private citizens to obtain an attorney general’s opinion after being denied access to public records from a state agency. Currently, only legislators may seek and receive such opinions.
The Department of Education, for example, was recently forced to release the methods by which state exams were scored—but only after a parent threatened to sue the department and state superintendent of schools, Delaine Eastin, Pollock said.
And just last week, the Davis administration finally agreed to release details from the long-term electricity contracts it has negotiated with power generators, a disclosure it has fought for months even as news organizations and Republican legislators sued to open those records.
Although dismayed by Davis’ vetoes, Pollock’s organization was somewhat encouraged by the governor’s request that the state and Consumer Services Agency (a division within the secretary of state’s office) conduct an internal survey of that agency’s compliance record, after which the survey would be expanded to include all state agencies and departments.
Pollock doesn’t hold much hope, however, that state agencies are doing any better than their local counterparts. An October 2000 audit done by CFAC showed that 77 percent of all public records act requests made in 44 cities, 45 school districts and assorted law enforcement agencies were initially denied.
While Shepler and others hope that bringing constant pressure to bear on the DHS will force advisory committee meetings into the sunshine, it does not look like department officials are leaning their way. Speaking for senior staff attorney Peter Baldridge, Brooks said that while the August 7 meeting will be open, the department does not feel it is required to do so by law, claiming the advisory committee does not fit the definition of a state body that is “required by law to conduct official meetings.”
“The advisory committee is not required to conduct meetings,” Brooks said, “simply to advise and make recommendations” to the department.
The committee has met three times: in October, January and on April 27. The first two meetings were closed to the public and the third was open only insofar as Shepler was allowed to attend. Other Lyme disease sufferers, like Butte County resident Marlene Hauck, have expressed frustration and anger at what they see as a blatant attempt to thwart the intent of both the state’s open meeting laws and the law that created the LDAC.
CFAC’s Pollock agrees, saying that the DHS is “flat-out wrong” in its assertion that advisory committee meetings can be closed to the public. The Bagley-Keene Act—the counterpart to the Ralph M. Brown Act covering state agencies—specifically states that any legislatively created bodies such as the LDAC are subject to the same open meeting rules that govern local city councils and school boards.
Hauck, who has lived with Lyme disease since 1993 and leads the 300-member Butte County Lyme Disease Support Group, said that when she telephoned the DHS last October, she was also told that LDAC meetings were not open to the public.
“I wanted to attend the first meeting,” Hauck said, “and was told I could not. It struck me as strange, because it was a state committee, but I didn’t know any better.”
Shepler and others have also had difficulty in even accessing the minutes of LDAC meetings in a timely fashion, as well as the names of committee members and their contact information. In fact, Shepler had to make a formal request under the California Public Records Act to get both—a request that was made May 2 and not provided to her until June 14, well over the 10-day limit allowed by law.
“This is outrageous,” Shepler said. “Those things should have been available immediately and could have been provided to me by e-mail or fax. I shouldn’t have to travel to Sacramento to get them.”
When asked to comment, DHS spokesman Ken August said every effort was being made to accommodate Shepler’s request—which included 15 other items—in a timely fashion. No explanation was offered for why some items, such as contact information for LDAC board members, could not be provided to anyone immediately.
In creating the LDAC last year, the Legislature charged the committee with providing input to the DHS on the content and geographic distribution of Lyme disease educational materials. Additionally, the committee is supposed to make recommendations about how best to provide information and outreach to the medical community and general public.
With more than 16,000 confirmed cases of Lyme disease in the United States as of December 1999, Lyme is considered an emerging threat by county health officers throughout the state. As a result, many say, discussions about how best to prevent and treat the disease have become highly controversial. Ironically, that controversy is used by both proponents and opponents of government access in trying to prove their points.
Dr. Scott Morrow, health officer for San Mateo County and an LDAC board member, said that while he would never vote to have closed meetings—as other LDAC board members did recently—he can see the value to having them closed.
“People are talking about controversial things,” Morrow said. “Some things are just people’s opinions, while others are fact. And I think when [the public] hears things, and then goes out and repeats what they’ve heard, or their interpretation of what they heard, things get twisted. I can see the value of having a safe place for [board members] to talk, without worrying about what someone in the audience is going to say and to whom.”
But CFAC’s Pollock points to the preamble of the Brown Act, which states, in part, “The people … do not give their public servants the right to decide what is good for the public to know and what is not good for them to know,” adding that the DHS is violating both the spirit and letter of the law.