By Duffy Carolan
Something is wrong.
I see it nearly every day in my representation of reporters throughout California. Local and state agencies are throwing up excuse after excuse when responding to requests for public records and are unapologetically meeting behind closed doors, chancing that the denial of access will go unchallenged or that a reporter’s resolve will fade with sufficient delay in responding to the request.
Examples are replete. Agencies asserting every known exemption to the mandatory disclosure provisions of the Public Records Act without identifying whether responsive documents even exist. Agencies claiming that compiling electronically stored data (by basically pushing search) is the creation of a “new record” not an existing record subject to disclosure. Agencies asserting the deliberative process privilege, originally intended to cover executive level, pre-decisional, policy-making discussions, to deny access to any form of communication, even cell phone billing records. Agencies claiming that the records requested involve “personnel matters,” which is often government-speak for public employee wrongdoing. Agencies delaying compliance without sufficient justification. Or, simply ignoring the request all together.
It didn’t used to be this way. Our public access laws were shaped by stalwart newspapers in this state serving as their community’s watchdog over how public agencies carry out the public’s business. They didn’t hesitate to take a recalcitrant public agency to court to prove the point. Consequently, public agencies weren’t so brash in their handling of requests for access to public records. But the dog days are over, and from my vantage point public agencies are increasingly taking advantage of it.
Now, more than ever, it is important for reporters and citizens to know their rights and engage agencies in discussions over those rights to overcome obstacles to access so that the story can be told from more than the government’s point of view.
Many resources exist to assist people seeking to assert their rights of access, including the Open Government Guide published by the Reporter’s Committee for Freedom of the Press (www.rcfp.org/open-government-guide), the Right to Know guide published jointly by California Newspaper Publishers Association and the First Amendment Coalition, podcasts on access to public records, public meetings and court records produced by the First Amendment Coalition (available at www.firstamendmentcoalition.org/category/resources/podcasts/) and “hotlines” for citizens and reporters confronting access denials hosted independently by the First Amendment Coalition and by CalAware, to name some.
And when that doesn’t work, the government’s response should be part of the story, whether a citizen’s blog or local news. Shame is influential. And for the public to regain its power in this struggle, the government’s handling of access requests needs to be exposed.
Often the importance of the information being denied can be measured by the number of obstacles placed before the requester by the agency. But the absurdity of those assertions aren’t always apparent to one who can’t see what’s being withheld. Public exposure of the agencies’ handling of the matter can bring important internal pressures to bear that might otherwise never come about.
And when that doesn’t work, suing remains a key component of our access laws.
There is nothing more effective than the mandatory fee-shifting provisions of the Public Records Act to encourage agency compliance with our public access laws. Enforcing the laws, however, must be a shared responsibility—your local newspaper can no longer be expected to go it alone.
Duffy Carolan is a partner at the law firm Davis Wright Tremaine LLP in San Francisco. She regularly counsels reporters on a broad array of media law issues, including access to public records and public meetings. She is the author of the Open Government Guide published by the Reporter’s Committee for Freedom of the Press and is on the Executive Committee of the First Amendment Coalition.