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Editorial

Sac'to-Written Constitutional Amendment On Public Records (SCA 3) Needs Amending To Close Internet Loophole, Require Full Digital Disclosure Statewide And End Double-Standard For State Legislators



(June 25, 2013, updated 4:30 p.m.) -- The state Senate is now poised to consider a state constitutional amendment (SCA 3) hurriedly proposed by state Senate President Pro Tem Darrell Steinberg (D., Sacramento) and state Senator Mark Leno (D., San Francisco). The measure surfaced after Assembly and Senate majorities received a tsunami of criticism from media outlets and open government advocates by approving a budget measure that invited local governments to treat parts of the CA Public Records Act as voluntary instead of mandatory.

The Assembly and Senate hastily reversed their budget stances for FY14 and Senators Steinberg and Leno invoked Sacramento's much criticized "gut and amend" procedure to advance the constitutional amendment applicable in future years. If approved by voters in 2014, it would permanently require local government to pay the Public Records Act's mandates without Sacramento reimbursement.

Although enshrining the Public Records Act in the constitution is a good thing, SCA 3 as currently written would enable continuation of a notorious internet loophole that currently lets officials use private commercial email and their personal domains (e.g. "nameofpolitician.com") to evade disclosure of items that would otherwise be public records.

The internet loophole, described years ago by the First Amendment Coalition's Peter Scheer at this link, stems from old Public Records Act verbiage that defines public records as "prepared, owned, used, or retained" by state or local government bodies. Big surprise, a number of city officials now contend their communications and records -- even on government matters -- aren't public records if they're conducted via the officials' commercial (non-government) email accounts or personally owned websites ("nameofpolitician.com."). This loophole facilitates secrecy and invites mischief by blacking out public access to entire categories of public records.

In March 2013, a San Jose judge properly pierced this veil (Ted Smith v. City of San Jose), ruling that emails and texts on government business must be disclosed even if communicated on government officials' private email or text. It's unknown at this point what will happen in courts above or elsewhere.

Local governments could address this by requiring their officials to copy all communications on government matters conducted through their commercial email or personally run websites to a .gov or other designated database. But consider what happened when Long Beach Councilwoman Gerrie Schipske (who follows the openness practice with her own blog) recently suggested applying this openness policy to other City Hall officials. The incumbent Mayor offered no support and not one of her Council colleagues seconded her motion to discuss it.

The underlying Public Records Act and SCA 3 to constitutionally implement it should be amended to firmly plug this internet loophole and standardize the openness policy statewide. Communications on the public's business, whether by commercial email or private domains, should be disclosable as public records statewide.

In addition, as a representative of the League of California Cities noted in testimony today before the state Senate Governance and Finance Committee, SCA 3 explicitly maintains a current double-standard by which Sacramento legislators exempt their own offices from the Public Records Act. (CA's "Legislative Open Records Act" is much less open.) In our view, state lawmakers ought to finally accept the transparency they preach and mandate on others.

Finally, SCA 3 uses Sacramento's notorious "gut and amend" procedure in which the text of one measure is erased and new text is cut and pasted in. (This began with its Brown Act provisions to which Public Records Act verbiage was then added.) This is no way to amend the state constitution on anything, much less the public's right to know.

SCA 3 cleared the Senate Governance and Finance Committee (7-0); a few hours later, it sailed through the Senate Appropriations Committee on a bipartisan vote and is now headed to the state Senate floor. Regarding public public records, SCA 3 as currently offers reporters, community groups and other record requesters little beyond what they had before Sacramento legislators began lusting to remove state reimbursements (an action that will inevitably invite local governments to charge record requesters higher "fees" in the process.)

However, SCA 3 offers an excellent opportunity for throughtful amendments that can and should fully enshrine openness statewide in digitally communicated public records and simultaneously end Sacramento's legislative records secrecy.


The above text is smoothed and slightly revised but with no substantive change from its original.


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