By Albert Lundeen
Copyright © 2004 by University of the McGeorge School of Law
JD, McGeorge School of Law, University of the Pacific
to be conferred May 2006
M.A., English, California State University, Sacramento, 1988
B.A., Communication Studies/Journalism, California State University, Chico, 1979
Proposition 59 is based on the premise that government functions best when the people can see and read what their representatives do. California Secretary of the State, California Official Voter Information Guide, Analysis of Proposition 59 (2004). Recognized opposition to this measure is atypical. Instead of arguing against the proposition, the lone opponent writing in the California Official Voter Information Guide concludes Proposition 59 does not go far enough. Id.
Proposition 59 would create a constitutional right for the public to access government
information while recognizing existing exceptions. It would constitutionally recognize
rights and exceptions in a number of existing acts that statutorily provide public
access to government information, including the Ralph M. Brown Act, Bagley-Keene Open
Meeting Act, Grunsky-Burton Open Meeting Act, California Public Records Act, and the
Legislative Open Records Act. California Secretary of the State, California Official Voter Information Guide, Analysis of Proposition 59 (2004). Specifically, Proposition 59 would amend the
California Constitution, adding six subdivisions to Section 3 of Article I, that essentially
adopt three concepts:
First, Proposition 59 would grant the people a constitutional right of access to government meetings, and the writings of public officials and agencies. California Secretary of the State, California Official Voter Information Guide, Analysis of Proposition 59 (2004);
Second, it would direct the court to broadly construe the people’s right of access and narrowly construe limits to access, plus require any future exception to access to include “findings” to guide the court. California Secretary of the State, California Official Voter Information Guide, Analysis of Proposition 59 (2004); and
Third, Proposition 59 preserves several existing exceptions to public access, including exceptions related to the Legislature. California Secretary of the State, California Official Voter Information Guide, Analysis of Proposition 59 (2004).
The current law includes California statutes, often referred to as sunshine laws, which encapsulate most rules pertaining to the public’s right to attend government meetings and view government documents. There are judicial decisions that impact the interpretation of current law. As well, there are two proposed constitutional amendments related to the public’s right of access. The first proposed constitutional amendment sets the legislative groundwork for the second. The second proposed constitutional amendment was approved by the State Legislature, and is now before voters as Proposition 59.
A. Background of Right of Access to Public Meetings
1. Ralph M. Brown Act
In 1953, the Brown Act established the basic requirements for meetings of a legislative body or local government. It requires that anyone wishing to attend a regular meeting must be permitted to do so. Cal. Govt. Code Ann. § 54950 (West 1997). A regular meeting is a meeting where a majority of the governing body’s members attend. Id. § 54952.2(a). The Brown Act requires that agendas for meetings be publicly posted 72 hours before the meeting. Id. § 54952.2(a). Agendas must be mailed to those who request a copy. Id. § 54954.1. The Brown Act permits the public to tape record meetings that are open to the public, as long as the video or audio recording is not disruptive. Id. § 54953.5(a). The Brown Act requires that the public must be granted an opportunity to directly address the governmental body on any item described in the meeting agenda or any matter under the jurisdiction of the body. Id. § 54954.3(a). Excluded from the Brown Act are advisory committees or other meetings made up of less than a majority of the board’s members. Id. § 54952(b). Also excluded are community events where a majority of members attend, such as public meetings of another government body. Id. § 54952.2(c)(5). Also excluded are social gatherings, as long as the members do not discuss matters within the jurisdiction of the legislative body or local government body of which they comprise a majority. Id. § 54952.2(c)(5).
2. Bagley-Keene Open Meeting Act
In 1967, the Bagley-Keene Open Meeting Act was established. It applies to all meetings of state bodies. Cal. Govt. Code Ann. § 11121 (West 1992 & Supp. 2004). Most state boards and commissions, for instance, are covered with some exceptions. Id. § 11121.1. Bagley-Keene requires 10 days notice prior to the public meetings. Id. § 11125(a). The notice must include the agenda. Id. § 11125(b). Bagley-Keene requires meetings to be open to all. Id. § 11123(a). At the meetings, time must be reserved for any member of the public to address the board or commission. Id. § 11125.7(a). Bagley-Keene defines a state body as every state board, commission, or similar multimember body of the state created by statute or required by law to conduct official meetings and every commission created by executive order. Id. § 11121. The Legislature is excluded from Bagley-Keene because the Grunsky-Burton Open Meeting Act covers it. Id. § 11121.1.
3. Grunsky-Burton Open Meeting Act
In 1973, the Grunsky-Burton Open Meeting Act applied the principles of the Brown Act and Bagley-Keene Act to the state Legislature. Cal. Govt. Code Ann. § 9027 (West 1992). Grunsky-Burton provided that the State Senate and Assembly and the committees, subcommittees, and conference committees of the two legislative bodies must conduct meetings publicly so that anyone who chooses to attend may do so. Id. § 9027. Grunsky-Burton permits closed meetings to consider certain personnel matters, consider matters affecting safety and security, and confer with legal counsel regarding litigation. Id. § 9029(a). It also permits closed meetings of a caucus involving members of the State Legislature. Id. § 9029(b).
B. Background of Right of Access to Public Documents
1. California Public Records Act
In 1968, the California Public Records Act established the right to inspect and obtain copies of all state documents and records. Cal. Govt. Code Ann. § 6250 (West 1995). To ensure access, the California Public Records Act mandates that an agency always bears the burden of justifying nondisclosure. Id. § 6255(a). The California Public Records Act exempts preliminary drafts of agency memos. Id. § 6254(a). It exempts litigation to which a public agency is a party. Id. § 6254(b). It exempts personnel information, including medical records. Id. § 6254(c). Access to records must be immediate, and allowed at all times during regular business hours. Id. § 6253(a). An agency must provide assistance to the person making the request. Id. § 6253.1(a)(1). An agency has 10 days to decide if copies will be provided of the materials viewed. Id. § 6253(c). The Legislature sets the price of copies. Id. § 6253(b).
2. Legislative Open Records Act
In 1975, the Legislative Open Records Act established the right to inspect legislative records. Cal. Govt. Code Ann. § 9070 (West 1992). It mandates that the analyses for committees and legislative bodies be permanently preserved. Id. § 9080(a). The Legislative Open Records Act declares, “access to information concerning the conduct of the people’s business by the Legislature is a fundamental and necessary right of every citizen in this state.” Id. § 9070. It exempts some records, including records related to pending litigation. Id. § 9075(b). It exempts preliminary drafts, notes, or legislative memoranda. Id. § 9075(a). The Legislative Open Records Act exempts personnel, medical or similar files. Id. § 9075(c). It exempts communications from private citizens. Id. § 9075(j). It exempts records in the custody of or maintained by the Legislative Counsel. Id. § 9075(f). The Legislative Open Records Act exempts correspondence to individual Legislators and their staff. Id. § 9075(h). It exempts records of complaints to, or investigations of, the Legislature. Id. § 9075(k). It also exempts records maintained by the caucuses of legislative members. Id. § 9075(g).
C. Background on Court Interpretations
Legal cases that have arisen from interpreting the above Acts present an inherent dilemma found in the nature of a free and open society. On the one hand, society wants the benefits of an informed electorate, that to be informed must have a right to information concerning the conduct of the people’s business. On the other hand, society protects the privacy of individuals, and the confidentiality of their communications with the government to ensure a candid exchange of ideas and opinions. This tension places an abhorrence of secret government on a collision course with personal freedoms. The following three cases probe the court’s response to challenges of the California Public Records Act.
1. Times Mirror Company v. Superior Court
The California Supreme Court has developed a balancing test based on section 6255 of the California Public Records Act. Times Mirror Co. v. Super. Ct., 52 Cal. 3d 1325 (1991) [“Times”]. At issue in Times was whether the personal calendars and schedules of Governor George Deukmejian were exempted from disclosure. Id. at 1329.
The rule of section 6255 states: A record shall be withheld if “on the facts of a particular case the public interest served by not making the record public clearly outweighs the public interest served by disclosure of the record.” Cal. Govt. Code Ann. § 6255 (West 1995).
The court reasoned that identifying the individuals who met with the Governor would be the same as revealing the Governor’s judgment. Times, 52 Cal. 3d at 1343. Identifying the people the Governor met with, while demonstrating he was executing the duties of his office, could inhibit individuals and groups from meeting with the Governor. Id. at 1344. Publicity, the court reasoned, could subject those who met with the Governor to unwanted attention. Id. Also, it would make the Governor less likely to meet with an “unpopular or controversial group.” Id.
Hence, after balancing the interests, the court held that the public interest in disclosing the names of those meeting with the Governor was outweighed by the public interest in nondisclosure. The court concluded that disclosure discouraged discussions between the Governor and parties of all viewpoints, and would interfere with the Governor’s decision-making. Id. at 1345.
2. Rogers v. Superior Court
The court’s political pragmatism exhibited in Times appeared again when a news reporter requested the expense account and telephone records of city of Burbank council members who had made a trip to Las Vegas on official business. Rogers v. Super. Ct., 19 Cal. App. 4th 469 (1993) [“Rogers”]. Burbank provided these records, minus the telephone numbers. Id. at 475. After balancing the deliberative process privilege that protects the decision-making of government representatives against the public’s interest in knowing who the elected officials had telephoned, the court held the phone numbers were exempt from disclosure. Id. at 481.
The deliberative process privilege stems from the “executive privilege” forwarded in federal cases construing the Freedom of Information Act. 5 U.S.C.A. § 552(b)(5). California courts have statutorily applied this privilege when finding an executive’s interest in nondisclosure outweighs the public’s interest in disclosure. Cal. Govt. Code Ann. § 6255 (West 1995).
The Court of Appeal found this case indistinguishable from Times. Id. at 479. It reasoned that disclosing the telephone numbers of persons with whom a city council member had spoken is the equivalent to revealing the substance of the judgment and mental processes of the members. Id.
Thus, the court held that the deliberative process privilege applied to local government officials, as well as to state officials. By balancing the public’s right to know whom their government officials had spoken with, against the loss of protecting the mental process of officials, the court found the latter outweighed the former. Id. at 480.
3. California First Amendment Coalition v. Superior Court
Protection of the decision-making process again arose when a plaintiff challenged Governor Pete Wilson’s refusal to reveal the names of individuals submitted to him as possible candidates for a Plumas County supervisor’s vacancy. Cal. First Amend. Coalition v. Super. Ct., 67 Cal. App. 4th 159 (1998) [“California First”]. The court favored a governor’s privilege over the people’s right to access. Id. at 174.
Applying the rule of the deliberative process, the court reasoned that a premature exposure of the decision-making process would harm the public in three ways: (1) additional public scrutiny would decrease “creative debate and candid consideration”; (2) public observation before the decision process was completed would result in public confusion; and (3) examination early in the process would undermine the integrity of decision-making as factors arising during the process might overshadow the final decision. Id. at 170.
Consequently, the court held the public’s right to access came second to the public’s interest of protecting information that if exposed, would jeopardize the decision-making of the state’s top executive. Id. at 173. To explain its reasoning, the court quoted Times: “The deliberative process privilege is grounded in the unromantic reality of politics: it rests on the understanding that if the public and the Governor were entitled to precisely the same information, neither would likely receive it.” Id. at 172 (referring to Times, 52 Cal. 3d at 1345).
Hence, the court held protecting the Governor’s decision-making process was of greater value than disclosing the names of candidates for the supervisor vacancy. Id. at 174.
D. Legislative Background
1. Senate Constitutional Amendment 7
The concept of Proposition 59 was introduced to the California Legislature January 10, 2002, as Senate Constitutional Amendment 7 (“SCA 7”). It initially faced strong opposition from associations representing local governments, the American Electronics Association, California Municipal Utilities Association, and others. Opponents feared SCA 7 would jeopardize existing exceptions to public access, trade secrets, and would lead to costly litigation. SCA 7 Senate Constitutional Amendment – Bill Analysis, http://info.sen.ca.gov/pub/01-02/bill/sen/sb_0001-0050/sca_7_cfa_20020627_141507_sen_floor.html (accessed Sept. 3, 2004). Opponents believed existing statutory law was generally satisfactory, and the addition of a constitutional element would result in confusion. Id. Opponents also argued that the requirement of “particularized findings” to direct the court’s interpretations of access rights was unworkable. Id. at 7. SCA 7, just as Proposition 59 does, proposed to amend Section 3 of Article I of the California Constitution. During the legislative process it was significantly amended to alleviate opponents’ fears. SCA 7 passed the State Senate by at 32-0 vote. The State Assembly never considered SCA 7 because the 2001-2002 session expired before action could be taken.
SCA 7 was much more detailed than Proposition 59 when addressing exclusions to public access to government. For instance, SCA 7 contained specific provisions related to accessing information about a government official’s “performance” or “professional qualifications,” limiting information related to peace officers, and stating that if a “specified harm to the public interest cannot be averted by reasonable alternatives” the information must be kept from the public. Id. at 3. Amendments to SCA 7 eliminated specifics and generalized protections of privacy rights. Where SCA 7 began by permitting the Legislature to form rules excluding information about an official’s qualifications or performance from the public’s scrutiny, changes resulted in generalizing the Legislature’s power to form rules protecting “personal privacy.” SCA 7 Amended Bill Text, Amended in Senate June 17, 2002, http://info.sen.ca.gov/pub/01-02/bill/sen/sb_0001-0050/sca_7_bill_20020617_amended_sen.html (accessed Sept. 4, 2004). Amendments to SCA 7 continued the practice of denying disclosure to information that statutes had determined was beyond the scope of public access. Id. at Sec. 3(b)(2-6).
Amendments attempted to clarify when exceptions were appropriate. Yet repeated attempts to specify exceptions gave way to more generalized protections of privacy. For instance, a version of SCA 7 stated that personnel records of a peace officer, if ordered disclosed, would not be admissible as evidence in an action for damages or a criminal prosecution, unless required by due process. This specific language was replaced with a broader, more general protection of confidentiality related to law enforcement and prosecution records. Id. at Sec. 3(b)(1).
Lastly, amendments to SCA 7 eliminated language that denied the public’s right to
access information if that information would cause “serious harm” to the public interest,
and could not be averted by other “reasonable alternatives.” SCA 7 Amended Bill Text, Amended in Senate May 16, 2002, http://info.sen.ca.gov/pub/01-02/bill/sen/sb_0001-0050/sca_7_bill_20020516_amended_sen.html,
Sec. 3(b)(4). Instead, amendments abandoned the undefined “serious harm” and left
standing language that denied public access if it would “protect public safety or
private property” and “ensure the fair and effective administration of law, or to
preserve public funds and resources.” SCA 7 Amended Bill Text, Amended in Senate June 17, 2002, http://info.sen.ca.gov/pub/01-02/bill/sen/sb_0001-0050/sca_7_bill_20020516_amended_sen.html,
As a result, while SCA 7 underwent significant change and never completed the legislative process, it did set the stage for Proposition 59. It initiated a public debate under the dome of the State Capitol over whether the California Constitution should address the scope of the public’s right to information and exceptions to that right.
2. Senate Constitutional Amendment 1
The debate continued when Senate Constitutional Amendment 1 (“SCA 1”) was introduced on December 2, 2002, to the California Senate for the 2003-2004 Legislative session. Reflecting the Legislative Open Record Act, it began by declaring the people’s right of access is a “fundamental” right. SCA 1 Introduced Bill Text, http://info.sen.ca.gov/pub/bill/sen/sb_0001-0050/sca_1_bill_20021202_introduced.html, Sec. 3(b)(1) (accessed Sept. 5, 2004). This declaration did not survive the bill’s first set of amendments.
SCA 1, however, would succeed. It continued to work its way through the State Senate and Assembly. Another amendment clarified how courts must interpret the conflict between the public’s right to know and exceptions to disclosure: “A statute … shall be broadly construed if it furthers the people’s right of access, and narrowly construed if it limits the right of access.” SCA 1 Amended Bill Text Amended in Senate February 7, 2003, http://info.sen.ca.gov/pub/bill/sen/sb_0001-0050/sca_1_bill_20030207_amended_sen.html, Sec. 3(b)(2) (accessed Sept. 5, 2004).
Additionally, specific language guarding law enforcement exceptions to disclosure
were again left to a general clarification that existing exceptions would remain.
Language specifically expressed the statutory rules related to discovery concerning
a peace officer’s performance or professional qualifications were not altered. SCA 1 Amended Bill Text Amended in Senate May 6, 2003, http://info.sen.ca.gov/pub/bill/sen/sb_0001-0050/sca_1_bill_20030506_amended_sen.html,
Sec. 3(b)(3) (accessed Sept. 5, 2004).
More amendments accepted during the spring and summer of 2003 seemed set on clarifying that the legislation did not remove existing disclosure exceptions. SCA 1 Amended Bill Text Amended in Senate May 27, 2003,
http://info.sen.ca.gov/pub/bill/sen/sb_0001-0050/sca_1_bill_20030527_amended_sen.html, Sec. 3(b)(4-5) (accessed Sept. 5, 2004). For instance, additional language was accepted that stated, “[this measure] would provide that nothing in its provisions supersedes or modifies any provision of the California Constitution, including the guarantee of due process and equal protection.” Id. at Sec. 3(b)(4).
Before gaining passage by both the State Senate and the Assembly, final amendments emphasized that SCA 1 would not change the many confidentiality protections granted to the Legislature. SCA 1 Amended Bill Text Amended in Senate June 4, 2003, http://info.sen.ca.gov/pub/bill/sen/sb_0001-0050/sca_1_bill_20030604_amended_sen.html, Sec. 3 (b)(6) (accessed Sept. 5, 2004).
SCA 1 passed the State Senate on June 30, 2003. It was approved by the State Assembly on January 12, 2004. It was chaptered into state law on January 14, 2004, with the understanding that SCA 1 would appear on the next statewide ballot (November 2, 2004), permitting California voters to determine if the State Constitution should be amended to include the provisions of SCA 1.
Proposition 59’s amendments to the California Constitution fit into three categories: (1) a declaration that the people have a right to access their government; (2) a directive to the judiciary that when interpreting rules related to the public’s right of access, access must be construed broadly and exceptions narrowly, and any new exception must be clarified with findings; and (3) a series of clarifications to preserve existing exceptions to access.
A. Constitutional Right to Access Government
Proposition 59 adds to Section 3 of Article I a provision declaring the people have a right to know how the government conducts itself: “The people have the right of access to information concerning the conduct of the people’s business.” California Secretary of the State, California Official Voter Information Guide, Analysis of Proposition 59 (2004). This declaration is similar to those stated in the Ralph M. Brown Act, California Public Records Act, and other statutes. The California Legislative Analyst concludes placing the right within the Constitution strengthens the people’s right to access. California Secretary of the State, California Official Voter Information Guide, Analysis of Proposition 59 (2004). The Legislative Analyst explains, “a government entity would have to demonstrate to a somewhat greater extent than under current law why information requested by the public should be kept private.” Id.
B. Judicial Interpretation of Rules Governing the Public Right to Access
Proposition 59 dictates how the judiciary should interpret access rules and exceptions. It declares a court must interpret any statute, rule, or current authority so that the people’s right to access is construed broadly, and any limitation on that access must be construed narrowly. California Secretary of the State, California Official Voter Information Guide, Analysis of Proposition 59 (2004). It also states that if a right to access is limited in the future, the exception is only valid if “findings” are offered to demonstrate which public interest is being protected, and why that interest needs protection. Id.
C. Exceptions to the Public Right of Access
Acknowledging existing exceptions to the public right of access nearly triples the length of Proposition 59. Subdivisions 3 through 6 all concern the recognition of existing exceptions to the public’s right of access. California Secretary of the State, California Official Voter Information Guide, Analysis of Proposition 59 (2004).
Subdivision 3 acknowledges the protections granted to privacy rights contained in
Section 1 of Article I of the California Constitution. The rights are: “All people
are by nature free and independent and have inalienable rights. Among these are enjoying
and defending life and liberty, acquiring, possessing, and protecting property, and
pursuing and obtaining safety, happiness, and privacy.” California Secretary of the
State, California Official Voter Information Guide, Analysis of Proposition 59 (2004).
Subdivision 4 acknowledges that nothing in Proposition 59 modifies constitutional provisions related to “life, liberty, or property without due process of law, or denied equal protection of the laws,” as provided in Section 7. California Secretary of the State, California Official Voter Information Guide, Analysis of Proposition 59 (2004). Section 7 of Article I is the portion of the State Constitution that declares fundamental individuals rights. Cal. Const. art. 1, § 7. It begins with language identical to the words in this subdivision. Id.
Subdivision 5 acknowledges that Proposition 59 does not repeal any constitutional or statutory exceptions to the right of access existing at the time Proposition 59 passes. As an example of records that are protected from public view, it specifically lists “law enforcement and prosecution records.” California Secretary of the State, California Official Voter Information Guide, Analysis of Proposition 59 (2004).
Subdivision 6 was the last amendment of substance the Legislature accepted during its review of SCA 1. Subdivision 6 contains a reminder that Proposition 59 does not nullify any confidentiality protections granted to the proceedings and records of the Legislature. California Secretary of the State, California Official Voter Information Guide, Analysis of Proposition 59 (2004). Those proceedings and records are listed in Section 7 of Article IV of the Constitution. Section 7 of Article IV sets out the rules determining the scope of the Legislature’s internal rulemaking, including its review of members and employees subject to discipline, and security measures related to the Legislature. Cal. Const. art. IV, § 7.
Proposition 59’s premise of open access to government seems straightforward. Yet, perhaps it is this simplicity and additionally, the use of three specific terms that appear somewhat undefined, that raise drafting concerns.
A. General Ambiguity
Proposition 59 creates a constitutional right of access to government meetings and documents. It recognizes that such a right is subject to many exceptions. Most of those exceptions are contained in statutes. But why does it specifically mention some exceptions in the text and not others? For instance, in subdivision 3, Proposition 59 mentions the exception related to “discovery or disclosure of information concerning the official performance or professional qualifications of a peace officer.” California Secretary of the State, California Official Voter Information Guide, Analysis of Proposition 59 (2004). This statement does not appear to be an example of an exception. Instead, by writing it into the text, it might appear to grant greater importance to this exception simply because it is mentioned. Without clarification any such mention arrives with some degree of uncertainty. After all, the same subdivision begins, “[n]othing in this subdivision supersedes … the right of privacy, including any statutory procedures governing discovery or disclosure of information concerning the official performance or professional qualifications of a peace officer.” California Secretary of the State, California Official Voter Information Guide, Analysis of Proposition 59 (2004) (emphasis added). Statutory interpretation, however, finds no confusion. Courts have found factors after the word “including” are not exhaustive. See In re SGL Carbon Corp., 200 F.3d 154, 160 [“SGL”] and Singh-Kaur v. Ashcroft, 2004 WL 2109978 (3d Cir. March 30, 2004) [“Singh-Kaur”]. Yet in SGL, the word “including” was followed by a list of 10 circumstances where a court’s dismissal of a bankruptcy hearing was permissible. In Singh-Kaur, the word “including” was followed by a list of 10 examples of material support of terrorism. In Proposition 59, the word “including” is not followed by a specific list, but by a description of general types of proceedings: “including any statutory procedures governing discovery or disclosure of information.” California Secretary of the State, California Official Voter Information Guide, Analysis of Proposition 59 (2004). Although there is no list following “including” in Proposition 59, the usage is similar to the examples in SGL and Singh-Kaur. Hence, the interpretation from SGL and Singh-Kaur that finds no ambiguity, seems controlling.
Similarly, subdivision 6 refers to exceptions granted to the “proceedings and records of the Legislature, the Members of the Legislature, and its employees, committees, and caucuses.” California Secretary of the State, California Official Voter Information Guide, Analysis of Proposition 59 (2004). It may be ambiguous to mention these privacy protections while refraining from mentioning others. The repeated mention of restrictions related to Legislative records actually increases attention to the Legislative exceptions. Yet, repeating statutory language is nothing new. Some scholars have found repeating statutory language “not … helpful” in resolving interpretation. Cass R. Sunstein, Regulating Risks After ATA, 2001 S. Ct. Rev. 1, 36 (2001). Others suggest repetition permits a court to fulfill its role as “guardians of citizens' rights.” Michelle L. VanWiggeren, Experimenting With Block Grants and Temporary Assistance: The Attempt to Transform Welfare by Altering Federal-State Relations and Recipients' Due Process Rights, 46 Emory L.J. 1327, 1360 (1997). The repetition of statutory language in Proposition 59, however, is not an aid to interpreting existing rules or rights; instead, the repetition is an example of an exception to public access. Hence, Proposition 59’s listing of the Legislative exceptions seems to fall outside scholarly concerns of ambiguous repetition.
Thus, statutory interpretation, scholarly analysis, and common sense would tell us that the broad-brush declaration of public access to government meetings and records is applied equally. Specific mention of peace officers and the Legislature probably adds no confusion. The specific mention of those rights adds emphasis and brings additional attention, but the mention grants no greater recognition of one right or exception over another.
B. Specific Ambiguity
There are at least three specific terms in Proposition 59 that could be challenged as ambiguous. The first term relates to future exceptions to access and the Legislature’s need to justify why any exception is needed. The second two terms relate to how courts are to determine how far a right of access extends, and how limited an exception is meant to be.
Proposition 59 states that any future exception created by a governing body must be “adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.” California Secretary of the State, California Official Voter Information Guide, Analysis of Proposition 59 (2004) (emphasis added). Nowhere in the constitutional amendment is the word “findings” defined. To overcome this lack of specificity, it could be argued that there is a plain meaning implied, as “findings demonstrating” suggests that the findings would clarify what interest is protected. Id.
“Finding” is defined in the dictionary as a “discovery,” or “a decision or verdict after judicial inquiry.” Random House Dictionary of the English Language 532 (Jess Stein ed., Random House, Inc. 1970). A “finding of fact” is set forth as “a determination by a judge, jury, or administrative agency of a fact supported by evidence in the record.” Black’s Law Dictionary 511 (Bryan A. Garner ed., 7th ed., West 2000). Such definitions may fall short in clarifying what is meant in Proposition 59. The use of “findings” is not a reference to exploration or a judicial act. Instead, proponents explain “findings” is a term-of-art, meaning, an explanation expressed within a statute. Telephone interview with Roger Dillon of the California Senate Policy Unit, Sept. 3, 2004 (notes on file with the McGeorge School of Law, University of the Pacific, Capital Center for Government Law and Policy). This may be the meaning in the halls of the State Capitol, but it seems to be a meaning that has escaped written clarification.
Judicial interpretation may help. When addressing whether a closure of voir dire proceedings in a rape and murder case was appropriate, the United States Supreme Court wrote, “[t]he interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.” Press-Enterprise Co. v. Super. Ct. of Cal., 464 U.S. 501, 510 (1984) (emphasis added). The California Supreme Court has found judicial findings deficient, unless they meet the standard added to the State Constitution in 1966: “Decisions of the Supreme Court and courts of appeal that determine causes shall be in writing with reasons stated.” Amwest Sur. Ins. Co. v. Wilson, 11 Cal. 4th 1243, 1266 (1995) [“Amwest”] (referring to Cal. Const. art. VI, § 14). The court has also rejected legislative findings that were “unsupported.” Prof. Engineers in Cal. Govt. v. Dept. of Transp., 15 Cal. 4th 543, 572 (1997) [“PECG”]. It is this kind of specificity that may help proponents restrict future exceptions to public access. It would seem the findings of one exception may be unique to those circumstances, and only a near-identical fact pattern would result in a similar exclusion.
Whether a court reaches such a conclusion could also be affected by another element the California Supreme Court has evaluated. Proposition 103 Enforcement Project v. Charles Quackenbush 64 Cal. App. 4th 1473 (1998) [“Prop. 103”]. In Prop. 103, the court explained the rule concerning the Legislature’s ability to amend an initiative regulating the insurance industry. The court held: (1) to amend an initiative the initiative must permit amendment by the Legislature, and (2) any such amendment must further the “purpose of the Proposition.” Prop. 103, Cal. App. 4th at 1490. Prop. 103 addressed the validity of findings justifying Legislative action to rollback insurance rates. The court held the amendment to Proposition 103 did not further the purpose of the initiative, and therefore was an act beyond the power of the Legislature.
Applying this standard to Proposition 59 forecasts litigation. First, it appears unclear how much of a “finding” is needed to justify a future exception to the public access Proposition 59 protects, and to the degree of detail required in explaining why the exception is needed. Second, even if the future Legislature carves out an exception with sufficient “findings,” a court will likely be called upon to determine if that exception abides by the purpose of Proposition 59. It seems reasonable minds could disagree about the amount of justification “findings” must produce, and whether the “findings” match the intended purpose. Thus, section 3(b)(2) of Proposition 59 may intend to direct a future court opinion, but even if the ambiguity surrounding “findings” is solved, the courts have made it clear that legislative findings cannot supplant judicial findings.
Two other terms should also receive attention. Concerning interpretation of existing access rights, Proposition 59 states, “[a] statute … shall be broadly construed if it furthers the people’s right of access, and narrowly construed if it limits the right of access.” California Secretary of the State, California Official Voter Information Guide, Analysis of Proposition 59 (2004) (emphasis added). The words “broadly” and “narrowly” could be subject to challenges because they are unclear. “Broad” is defined as “of great breadth; full; not limited or narrow.” Random House Dictionary at 187. “Narrow” is defined as “not broad.” Id. at 951. While the plain meaning of these words may suffice, if a court demanded greater guidance only “narrowly” appears in judicial decisions related to the public’s right of access.
In California First, the court was guided by a general principle that exceptions are construed “narrowly.” California First, 67 Cal. App. 4th at 167. The court explained “construed narrowly” is when not disclosing a public record “clearly outweighs” the public interest in disclosure. California First, 67 Cal. App. 4th at 167 referring to CBS, Inc. v. Block, 42 Cal. 3d 646, 652 (1986). Hence, if a court found plain meaning inadequate, it seems judicial construction may overcome the ambiguity because the court has defined “narrowly” and any interpretation not narrow could be construed as broad.
A. Separation of Powers: A Federal and State Issue
The interpretative command given to the judiciary by Proposition 59 raises a separation of powers issue. By telling the court that it must recognize any future exception to access established by legislative “findings” and construe the public’s right to access “broadly” and existing exceptions “narrowly,” Proposition 59 pushes the line where suggestions are welcomed but orders are not. California Secretary of the State, California Official Voter Information Guide, Analysis of Proposition 59 (2004).
As a result, the interplay these rights and exceptions have with the Federal Constitution opens Proposition 59 to federal review because interpreting the Federal Constitution is “the very essence of judicial power.” Marbury v. Madison, 5 U.S. 137, 178 (1803) [“Marbury”]. Marbury established the fundamental architecture of constitutional review. It held the United State’s Supreme Court is the final arbiter when considering whether a law conflicts with the meaning of the U.S. Constitution. Id.
Similarly the principle is historically well established in California: “The judiciary, from the very nature of its powers and means given it by the Constitution, must possess the right to construe the Constitution in the last resort.” Nogues v. Douglass, 7 Cal. 65, 70 (1857) [“Nogues”].
The argument could be made that Proposition 59 conflicts with the “essence” and “nature” of judicial power. By offering specific terms – “with findings,” “broadly,” and “narrowly,” – Proposition 59 might give too much direction. If it is dictating the results of future cases, the measure ignores the traditional separation of legislating and judicial review. As Marbury and Nogues formulate, it is the court’s duty to weigh facts of particular cases in light of existing law, and make judgments by expounding and interpreting the law. Marbury, 5 U.S. at 177; Nogues, 7 Cal. at 70. Proposition 59 could be read as a constitutional concrete set to prevent future judicial interpretation. Proposition 59 short-circuits the Court’s reasoned analysis by preordaining that a court must follow legislative findings. This prognosticating of what a court’s outcome must be violates the premise of separation of power because the judiciary’s essence and nature is to consider the merits of the case and reach an independent conclusion. Marbury, 5 U.S. at 178; Nogues, 7 Cal. at 70.
Thus, it seems the dictates of Proposition 59 could raise an issue of how much direction the people can give the courts. Certainly the people, through initiative, can express a purpose and intent, but doing so with the detail of Proposition 59 would seem to usurp judicial power. Marbury and Nogues tell us, quite clearly, the judiciary makes the final interpretation of the Federal and State Constitutions. Marbury, 5 U.S. at 177; Nogues, 7 Cal. at 70. If future exceptions to access were legislated with sufficient findings, and matched the purpose of Proposition 59 there may be no problem. But if Proposition 59 were read to limit the judiciary’s role, it seems reasonable to conclude that Proposition 59 would violate the principle of separation of powers.
B. Constitutional Amendment Versus Revision
Another issue to consider would be the possibility that Proposition 59 oversteps the bounds permitted in the initiative process to amend the California Constitution. If Proposition 59’s changes are considered so far-reaching that they amount to a revision of our governmental plan, then the changes go beyond the scope permitted by the initiative process. Raven v. Deukmejian, 52 Cal. 3d 336, 351-52 (1990) [“Raven”].
The Raven standard is expressed as: “Although ‘[t]he electors may amend the Constitution by initiative’ (Cal. Const., art. XVIII, § 3), a ‘revision’ of the Constitution may be accomplished only by convening a constitutional convention and obtaining the popular ratification (id., § 2), or by legislative submission of the measure to the voters (id., § 1).” Id. at 349. The Raven court explained that whether a change was quantitative or qualitative, if it “substantially alter[s] the substance and integrity of the state Constitution” it is considered a revision. Id. at 352.
The changes of Proposition 59 are limited to one section of Article I, adding one division with six subdivisions. This does not appear to be “quantitative.” Yet Article I historically has framed a “Declaration of Rights” that is viewed as citizen protections. Id. at 353. A change to an constitutional article, home to basic rights, might be considered “qualitative” and comprehensive. This, however, seems unlikely. To compare, the court in Raven found “qualitative” change that equated to revision. Id. at 351-52. There, the issue was one of whether California could transfer judicial interpretative power from the California Supreme Court to the United States Supreme Court. Id. Here, Proposition 59 attempts to merely elevate existing rights of access and exceptions that appear in statutes and elsewhere, by recognizing the right within the Constitution. Raven addressed a transfer of power; Proposition 59 attempts to constitutionally protect existing statutory rights of access and exceptions to those rights.
Thus, the changes of Proposition 59 seem not to rise to the level of change considered a revision. As a result, it would be proper to consider Proposition 59 an amendment to the Constitution; thus, permitted under the initiative process.
A. Proponents Argument in Favor of Proposition 59
Proponents extol the principles of democracy and demand an open government that is accountable to the people. California Secretary of the State, California Official Voter Information Guide, Analysis of Proposition 59 (2004). Their argument would fit well at a constitutional convention of an emerging nation, but here the high-philosophical ground they cover comes 125 years after the 1879 version of the California Constitution. The right they pursue, however, is not an existing constitutional right, it is one only recognized by state statutes, rules, and advisories.
To elevate the people’s right of access by placing it in Section 3 of Article I of the Constitution, proponents hope to achieve three things: (1) a fundamental right to government access; (2) guidelines to the courts when interpreting access rights and exceptions; and (3) a demand on governing bodies to justify with “findings” any new exception created, and an explanation of why that exception is needed. Telephone interview with Roger Dillon of the California Senate Policy Unit, Sept. 3, 2004 (notes on file with the McGeorge School of Law, University of the Pacific, Capital Center for Government Law and Policy).
During the legislative process, SCA 1 was first presented to the State Senate as an
essential right. Proposed language stated: “Access to information concerning the conduct
of the people’s business is a fundamental and necessary right of every person in this
state.” SCA 1 Introduced Bill Text Amended in Senate December 2, 2002,
http://info.sen.ca.gov/pub/bill/sen/sb_0001-0050/sca_1_bill_20021202_introduced.html (accessed Sept. 5, 2004). “Fundamental” and “necessary,” as words, failed to survive the political paring knife of lawmaking. Proponents argue that the loss of terminology does not make Proposition 59 less fundamental. Telephone interview with Dillon. Proposition 59 places the people’s right to access government work on a constitutional plain above statutes and other rules. After all, Proposition 59 is a constitutional amendment and the Constitution of California is generally believed to contain citizen rights more fundamental than those contained in statutes.
Perhaps this argument benefits from the reverence granted the Constitution of the United States, which has been amended 27 times during a span of more than 200 years. Such reverence is not applied to the California Constitution. It is often amended. Since adopting the California Constitution in 1879, it has been amended more than 500 times. K.D. Kennedy, California History, http://smccd.net/accounts/kennedy/310/lesson02.htm (accessed Sept. 5, 2004).
Yet to think of the right of government access as something less than fundamental seems misplaced. James Madison, as quoted by Justice Douglas, said, “[a] popular government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors must arm themselves with the power which knowledge gives.” EPA v. Mink, 410 U.S. 73, 110-11 (1973). Justice Blackmun wrote in reference to the purpose of the Freedom of Information Act, that information is necessary “to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989). Therefore, fundamental, seems more a definitional tag missing in Proposition 59 in word only.
Secondly, proponents want to direct the courts when resolving conflicts between the people’s right to access and claims of privilege or privacy. Telephone interview with Jim Ewert, legal counsel for the California Newspaper Publishers Association, Sept. 3, 2004 (notes on file with the McGeorge School of Law, University of the Pacific, Capital Center for Government Law and Policy). Proponents point to three cases, reviewed earlier in our background on judicial interpretations, as examples of progressive encroachment on the people’s right to access. Id. They fear that without stern clarification, the courts will proceed to favor exceptions to disclosure instead of the people’s right to access. Id.
Proponents direct the court: “A statute, court rule, or other authority, including those in effect on the effective date of this subdivision, shall be broadly construed if it furthers the people’s right of access, and narrowly construed if it limits the right of access.” California Secretary of the State, California Official Voter Information Guide, Analysis of Proposition 59 (2004). Interestingly, Times, Rogers, and California First, state that exceptions to access are to be interpreted narrowly. Times, 52 Cal. 3d at 1351, 1357; Rogers, 19 Cal. App. 4th at 476; California First, 67 Cal. App. 4th at 167. None, however, make any mention of the right of access as a principle to be interpreted broadly. Proponents argue that this clarification of purpose will force the courts to balance the interest of access and nondisclosure, giving greater weight to access. Telephone interview with Ewert.
Additionally, it would seem the proponents effort to combat what they call the erosion of public access is strengthened most by their third argument. Proponents say to avoid inconsistent judicial interpretation of any future exception, the body making the rule must demonstrate what the interest to be protected is and why it needs protections. Id. Proposition 59 states: “A statute, court rule, or other authority adopted after the effective date of this subdivision that limits the right of access shall be adopted with findings demonstrating the interest protect by the limitation and the need for protecting that interest.” California Secretary of the State, California Official Voter Information Guide, Analysis of Proposition 59 (2004). Proponents argue that “findings” are specific explanation in recorded form that would narrow future interpretation of the exception. Interview conducted by electronic mail with Terry Francke, general counsel of the California First Amendment Coalition, Sept. 3, 2004 (notes on file with the McGeorge School of Law, University of the Pacific, Capital Center for Government Law and Policy). “Findings” must explain the interest the rulemaking body means to protect, and why that interest needs protection. Id. As explored in the earlier analysis, however, the limits of “findings” undoubtedly will face judicial review.
Proponents argue that fact patterns similar to the appointment calendar of Governor Deukmejian in Times, the phone numbers Burbank city officials called in Rogers, and the applicant names under consideration for the Plumas Board of Supervisors vacancy in California First may be disclosed in future challenges. Telephone interview with Ewert. Unless the fact patterns fall under existing exceptions to access or future exceptions defined by findings. Only a case that is pursued to the California Supreme Court will determine if such a prediction is true, but the California Legislative Analyst seems to agree with proponents that, “over time, this change could result in additional government documents being available to the public.” California Secretary of the State, California Official Voter Information Guide, Analysis of Proposition 59 (2004).
B. Opponents Argument Critical of Proposition 59
With no formal opposition campaign to Proposition 59, attorney Gary Wesley submitted arguments against the measure that the Secretary of State accepted for the Voter Information Guide. California Secretary of the State, California Official Voter Information Guide, Analysis of Proposition 59 (2004). Wesley’s criticism of Proposition 59 is the proposed changes are too meek-mannered, and fail to go far enough to uncover government secrets. Id.
He specifically points out that exemptions from disclosure would continue for “records deemed ‘private’ by the courts and would not apply at all to the ‘confidentiality of proceedings and records of the Legislature, the Members of the Legislature, and its employees, committees, and caucuses.’” Id. He is suspicious of the measure because it regulates those who wrote it. Telephone interview with Gary Wesley, Sept. 3, 2004 (notes on file with the McGeorge School of Law, University of the Pacific, Capital Center for Government Law and Policy). “Proposition 59 qualified for the ballot because the Legislature approved it,” said Wesley. Id. “The version they voted for would only be a version that doesn’t threaten the Legislature.” Id. It is true, that much of the proposition’s bulk addresses the recognition of existing exceptions to public access, including exceptions directed to the Legislature. California Secretary of the State, California Official Voter Information Guide, Analysis of Proposition 59 (2004).
Wesley finds Proposition 59 “too broad, too unclear, and possibly too protective of the Legislature.” Id. His criticism may resonant with those voters who ask what would Proposition 59 change? Existing statutes grant the people a right of access to meetings and information. The Brown Act sets basic requirements for meetings of a legislative body and local government. The Bagley-Keene Open Meeting Act sets standards for most meetings of state boards and commissions. The Grunsky-Burton Open Meeting Act applies the same principles to the State Legislature. The California Public Records Act creates a right to inspect copies of state government documents. The Legislative Open Records Act creates a right to inspect legislative records. In addition, there are agency rules and other authorities. Proponents respond that by directing the courts to interpret access rights broadly, in addition to holding exceptions narrowly, and also requiring “findings” for any future exception to access, it is more likely that access rights will not erode. Telephone interview with Ewert. Critics call this a defensive posture. Telephone interview with Wesley. Wesley would prefer an offensive assault that would literally knock down the doors of what he calls “secret local government meetings.” Id. He believes the rights of individuals, who have the least resources to fight back, could be trampled. Id. He believes the access rights of the weakest individuals among us, need the most vigorous protection. Id. Denying access to the outcast, he implies, makes government bolder in its denials to others. Id.
Even the Legislative Analyst’s hedges when concluding that Proposition 59 “could result in additional government documents being available.” California Secretary of the State, California Official Voter Information Guide, Analysis of Proposition 59 (2004) (emphasis added). The analyst’s conclusion is not “would” or “will” result in more availability; the analyst’s conclusion is “could” result in greater access, which may mean that access would not improve. Id. Wesley finds this the most likely outcome of Proposition 59. Id. He argues that because Proposition 59 repeatedly states it does not “supersede,” “modify,” “repeal,” or “nullify” existing exceptions that prevent the public from accessing some types of information, it makes no noticeable change. Id. Just as exceptions were added to SCA 1 related to the Legislature in its final days before passage, if Proposition 59 passes, the majority of its amendments guarantee recognition of all existing exceptions.
Finally, Wesley’s ballot arguments play on the distrust the general public has of government. Id. He writes of “government employee groups” that use the privacy protections to “hide the amount of money, benefits, and perks they receive at public expense!” Id. It is a thematic sentiment of his opposition arguments. “Government is getting bigger and becoming more wasteful, insular, and abusive. Proposition 59 would not do much to reverse that alarming trend.” Id. Wesley concludes that voters may well jeopardize comprehensive reform by accepting the partial remedy of this measure. “Proposition 59 may be better than nothing, but it does not go far enough. The question is whether to vote ‘yes’ and hope for more or vote ‘no’ and demand more.” Id.
On November 2, 2004, the California voters will determine whether to enact Proposition 59, encasing the right of public access to government in the California Constitution. If approved by the voters, Proposition 59 would affect three changes: (1) it would grant the people a constitutional right of access to meetings of public bodies, and the writings of public officials and agencies; (2) it would direct the court to broadly construe the people’s right of access, and narrowly construe limits to access, plus require any future exception to include “findings” to guide the court; and (3) it would preserve several existing exceptions to public access, including those related to the Legislature. Proponents argue that existing public access laws are eroding, and that Proposition 59 will help reverse a trend of making it easier for government to keep secrets from the people. Opposition arguments share the same fear, but say Proposition 59 fails because it does not go far enough. Opposition arguments express the worry that approving Proposition 59 will make needed, broad reform less likely. Regardless of the debate summarized here, Proposition 59 faces an uphill battle for attention, as 15 other measures jockey for the eyes and ears of voters who will determine the outcome of all the propositions presented on the November ballot.