Transparency in government is rarer today than many previously realized. Trust us, government leaders say, conveniently omitting the reality that all of our phone records, emails, and other online activity are available to the National Security Agency, with or without a search warrant. Most of the revelations by admitted whistle-blower Edward Snowden aren't new; the Patriot Act authorized all of this snooping years ago. Nevertheless, the breadth of the surveillance is something that should concern everyone, even if it has resulted in thwarting terrorist plots, as the government asserts.
Closer to home, we're seeing an erosion of the state's public records law that could result in some local entities opting out of sunshine provisions that were previously required. The changes would, for example, neither require government officials to respond to records requests within 10 days nor require them to assist the public in learning about which records are available. According to the Sacramento Bee, it also eliminates a requirement that governments provide a legal justification for not releasing information. (This bill does not affect state agencies, only local governments and districts. It also does not affect the 1968 public records act itself, but rather later additions to it.)
The provision, called a trailer bill, was quietly inserted into one of the state budget bills, AB 76, that the California Legislature passed late Friday. There were no hearings on it. There was no debate. The tightening of public records requests was apparently done at the behest of Governor Jerry Brown in an effort to save the state hundreds of millions of dollars. That's because when local government bodies respond to public records requests, they can send an invoice to the state for reimbursement. As it stands now, the state owes these various governing bodies some $200 million, according to state Senator Mark Leno (D-San Francisco), who is chair of the Senate Budget Committee. In 1979 a constitutional amendment was added that said that when the state requires something of local governments, it needs to pay for what's known as mandates. Adhering to the state public records act is a requirement, therefore, local entities have been billing the state to cover these costs.
Initial articles over the weekend by the Contra Costa Times indicated the public records law could be "eviscerated" by the trailer bill. Leno denied that in a phone call this week, saying nothing is intended to deny access. For example, the proposed changes suggest that local governments follow current law as a "best practice," but also allows them the option of ignoring transparency provisions by announcing annually that they will not follow them, the Times reported.
"If they decide not to provide services they must state publicly" that they will not provide the services, Leno told us. He was asked what would happen if a local body did opt out of transparency requirements. People, he said, "could sue agencies" just as they do now.
"I don't believe anything is going to change," Leno said.
We're not so sure. There are thousands of government entities that could flaunt public records requests. We're not talking about big cities like San Francisco, where it would be unlikely, but there are hospital districts, public utility districts, and school districts up and down the state that could, in theory, decide that it's just too expensive or time consuming to provide John Q. Public with copies of bids, or meeting minutes, or salary databases.
Another quirk in the law changes a major provision dealing with electronic records, the Times reported, "stripping a requirement that governments release things like databases and spreadsheets in the form they are kept, instead giving them the option of picking their own format, such as paper copies."
Leno's colleague, state Senator Leland Yee (D-San Francisco) is greatly concerned about the changes to the public records act and called for the situation to be "quickly remedied."
"This will make it much more difficult for the public and the press to obtain information as to how local government functions," Yee said in a statement.
Running a transparent government is both expensive and inconvenient. It costs money and time to respond to public requests for information. But what we're seeing now is an attempt to erode transparency, both in California and nationally with the NSA. It's as though the government is trying to lock its people out. It's a government that believes in itself, trusts itself, and believes everyone else should trust it. The problem is that it will be overzealous government workers who try to deny access to public information that, in the end, will show just how far short these changes to the public records act are. Leno mentions "best practices," well, that's really management-speak.
The old saying that sunshine is the best disinfectant still holds true today. Governor Brown should realize that his bill would do more harm than good and veto AB 76.