The protest was held Thursday on the Southwestern College campus to dispute the college's decision to cut classes next semester. It was peaceful, and school officials did not dispute that. They say it's what happened after the rally that resulted in the disciplinary action of four professors, one of whom returned to teach on Monday.

*****

School officials said the professors weren't placed on leave for their actions during the rally, which took place on a "free speech area" on campus. Instead, they said they are looking into what happened after the rally when the students moved over to the administrative office.School officials said their concerns are threefold, and the actions being investigated include violations of college policies, like "inciting students to leave the free speech area, disregarding police direction and directly confronting police officers."

Vice President of Student Affairs Angelica Suarez said, "At this time charges have not been filed with the district attorney's office, but that is an investigation that is currently ongoing."

*****

The school said there are two parallel investigations -- one with the school, and one with the police. Depending on what they find, they said criminal charges could be filed as early as this week.

Greg Lukianoff, president of the Foundation for Individual Rights in Education, writes in the Huffington Post that his organization has stepped in to advocate for the teachers' rights after learning how mild their involvement was.

How small is the free speech zone, you ask? Well, it's actually a patio outside the Student Union. No, I did not just make that up. The whole affair is so ludicrous that FIRE sent a letter yesterday to SWC Superintendent/President Raj K. Chopra.

The basic facts of the case are as follows. According to eyewitnesses who have described the events both to FIRE and to the press, a group of students and faculty assembled on October 22 in SWC's "free speech area" to protest various actions of the college. One of the students then said, "Let's go where they can hear us"—apparently because it is frustrating to, you know, have one's protest event restricted to a patio.

Some students then headed toward President Chopra's office, where they were met by campus police officers and prevented from even getting into the courtyard where Chopra's office is located. Three faculty members were with the group of students for different amounts of time during the students' conversation with the police officers, and they left separately. 

Later that evening, the three professors were hand-delivered letters signed by Chopra at their off-campus homes, informing them that they were banned from campus due to an unspecified "matter" and were not even permitted to use campus e-mail or other resources. Just as chillingly, according to other reports, campus police officers have recently been attending peaceful gatherings of students and faculty, and students involved in such meetings and protests have been summoned to the president's office.

An employee shall not be dismissed, suspended, disciplined, reassigned, transferred, or otherwise retaliated against solely for acting to protect a student engaged in conduct authorized under this section, or refusing to infringe upon conduct that is protected by this section, the First Amendment to the United States Constitution, or Section 2 of Article I of the California Constitution.

If nothing else, this sorry episode should finally expose the political and legal bankruptcy of the "free speech zone" approach so widely—perhaps universally—adopted by California's colleges and universities. Such zones—in which annoying or offensive speech is tolerated—would never be upheld as permanent fixtures in the pedestrian byways of the wider community.  While speech zones corraled outside—and often beyond earshot of—political conventions and other important polity gatherings and official speeches have become the equally deplorable norm, they are at least temporary, and media coverage typically ensures that the gist of the protest is well known. Otherwise, one needs neither a badge nor a permit to stroll the sidewalks or paper the parking lots of the community with messages his fellow citizens would rather not be bothered with.  Hyde Park, with its tradition of soapbox eccentrics tolerated as a confined sideshow, is a byproduct of English law, which has no First Amendment.

Higher education campuses, it has often been remarked, pride themselves as bastions of academic freedom and learning—refuges for the examination of ideas and that the wider community might find alien or repugnant.  And yet the situation has evolved from the Free Speech Movement of 50 years ago to something close to the precise opposite.  Alien, repugnant or insistent speech is the nettlesome intruder into the academic cocoon.  Speech codes declare the existence of a "community of learning" in which abraded feelings, insulted self-regard or confrontational challenges to cherished beliefs have no place. 

"Free speech zones" are islands in a speech-free ocean. Where they exist, academic administrators should stop lamenting the decline in support for "higher" education.  There is nothing particularly exalted or elevated in an education that has abandoned respect for the First Amendment and the dissonance and dissent it has always protected. And above all, ruling out of order the student and faculty protests that echo administrators' very own alarm at the dwindling public support of education is a reaction that could hardly be more mindless.

In a decision released Thursday, Superior Court Judge Hurl Johnson ruled that the pensions paid to retirees in the StanCERA system are public information.The Bee sought the names and pension amounts of those getting $100,000 or more per year. Also joining in the suit in Stanislaus County court were the California First Amendment Coalition and the California Newspaper Publishers Association, which asked for the names and pensions of 2,757 retirees and beneficiaries.

FREE PRESS -- Was the practice of Attorney General Jerry Brown's former press spokesman quietly to tape record his phone discussions with inquiring reporters a violation of California law?  No, say the A.G.'s office and the First Amendment Coalition, in a rush to exoneration that ignores a central court decision.

In his resignation letter, Gerber admitted regularly tape recording his conversations with reporters. But he said his superiors, including AG Brown, did not know about the practice.

The AG's Office issued a statement Tuesday denying a crime had been committed. The statement noted the highest-ranking criminal lawyer in the office had concluded the law only prohibits the recording of a "confidential" communication without consent. Since Gerber was having an "on the record" interview, the communication was not "confidential."

A similar line is taken by Peter Scheer, executive director of the First Amendment Coalition:

The prevailing presumption today is that interviews are not recorded unless all parties to the conversation explicitly agree otherwise. Although this presumption may be a bit quaint in the YouTube era–in which celebrities are always at risk, in public settings, of having a candid moment converted into an embarrassing video that goes viral online–it is, in fact, a presumption strictly observed by all serious journalists.

As it should be.  Ethically speaking, there is no adequate reason to tape secretly. But it’s important to bear in mind that undisclosed taping by a journalist–or by the person being interviewed by a journalist–is rarely, if ever, illegal.

Case law does not support these conclusions; it contradicts them. In 1998 the U.S. Ninth Circuit Court of Appeals, interpreting California law, held that there was no liability for violating Penal Code Section 632—the covert taping prohibition—when a flight attendant scheduled as a witness in the O.J. Simpson murder case was interviewed on her own front doorstep by a television reporter who disclosed himself as such, but used a concealed microphone on his person and a camera hidden in a parked car to record the interview. In Deteresa v. ABC, Inc., 121 F.3d 460, the court held that in speaking to an identified reporter, she could not have reasonably expected that her words would not be divulged to other parties. 

The court predicted that it would be this standard—“Will my words be repeated to others?”—and not the competing interpretation—“Are my words being recorded?”— that would be adopted by the California Supreme Court as the key test for finding whether a plaintiff had a reasonable expectation of privacy under Section 632.  But the Ninth Circuit was wrong. Four years later, in a non-media case involving one party who taped his phone conversation with another party, the Supreme Court held that for purposes of Section 632, a communication is confidential if at least one party to a conversation has “an objectively reasonable expectation that the conversation is not being overheard or recorded.” Flanagan v. Flanagan, 27 Cal. 4th 766 (2002). (Emphasis added). 

The following year the California Court of Appeal dealt with a case in which two undercover journalists posing as patients made covert audio and video tapes of their visits to a doctor's office. The resulting broadcast story about his improper prescription practices ended the doctor’s career. The court, ruling on his Section 632 damages claim, cited Flanagan, concluding that the doctor’s “evidence demonstrates that he expected his communications to be private and did not expect them to be recorded.” It rejected the defendant TV station’s argument for a constitutional news gathering privilege, stating that the defendant “has not shown that the California Constitution or the United States Constitution requires the creation of a broad affirmative defense based solely upon a legitimate newsgathering motive, and we decline appellant's invitation to do so.” Lieberman v. KCOP Television, Inc., 110 Cal.App.4th 156.

Months later, in a ruling from the same appellate district, the journalistic recording of the anguished but unintelligible reactions of a couple first learning, by a phone call from a police officer, of their son's death from an apparent drug overdose was held to be a violation of Section 632—because their consent to record the call had not been obtained.  The court quoted Flanagan for the proposition that "eavesdropping or recording of conversations without consent is prohibited 'regardless of whether the party expects that the content of the conversation may later be conveyed to a third party.'" Marich v. MGM/UA Telecommunications, Inc., 113 Cal.App.4th 415.

Whether, as the Attorney General's office observes, a journalistic interview is "on the record" or not, court interpretations of Section 632 are such that a tape recording of the conversation by either party must be by mutual awareness and consent, and journalists need to be mindful that this is more than just a matter of ethical restraint.
 

Paul Zarefsky's 2007 paper left out some important information. San Francisco's Sunshine Ordinance (http://sfgov.org/sunshine), Sec. 67.24(a)(1), declares that except in certain narrowly defined cases, "no preliminary draft or department memorandum, whether in printed or electronic form, shall be exempt from disclosure under Government Code Section 6254, subdivision (a) or any other provision. If such a document is not normally kept on file and would otherwise be disposed of, its factual content is not exempt under subdivision (a). Only the recommendation of the author may, in such circumstances, be withheld as exempt."

The city's Sunshine Ordinance Task Force has consistently found in favor of complainants who have requested electronic documents in their original format. Besides pointing to 67.24(a)(1), the task force has held that metada are disclosable public information, and that when a body of metadata contains information that is barred or exempt from disclosure, the non-disclosable portion must be segregated/redacted and the disclosable portion must be provided.

The bad news is that the task force has no power to penalize sunshine scofflaws in city government; it must instead refer cases of willful violation to the city's Ethics Commission, the Board of Supervisors, the district attorney or the state attorney general. And those entities have invariably dismissed task force-referred cases because respondents have said they were acting on advice from the city attorney's office and were thus not willfully violating the ordinance in withholding requested information.

The task force is trying to remedy this and other loopholes in the ordinance through a package of amendments that it hopes to get on the local ballot in June or November 2010.

UPDATE 10/31/2009:  Hat tip to Kimo Crossman and David Akin for pointing up the following example of what metadata can reveal.

Transparency advocates are excited about the ruling, because—among other things—metadata has been useful in revealing the influence of lobbyists and other special interests on the legislative process: 

One of the most famous metadata lobbying goof-ups occurred in 2004, when Wired busted California Attorney General Bill Lockyer circulating an anti-P2P [peer-to-peer filesharing] letter that, after a look at its Word metadata, appeared to have been either drafted or edited by the [Motion Picture Association of America].

Here's how Deputy City Attorney Paul Zarefsky described the problem for government agencies in a paper presented at a League of California Cities conference in 2007.

A Word document, unlike a paper record or an electronic record in PDF form, contains "metadata" – information about the record that does not appear in the text but is automatically generated by the software program when a text is created, viewed, copied, edited, printed, stored, or transmitted using a computer.  Metadata are typically embedded in the record in a manner not readily viewed – and often not understood – by persons without specialized computer training.  Indeed, many persons who use a computer are unaware that Word documents contain metadata or that electronic transmission of a Word document in that form includes not merely the visible text but also the metadata.  This paper uses the term "metadata" broadly to include any information embedded in an electronic record that is not visible in the text.

Metadata in a city document may include a wide variety of information that the city has a right – and, in some cases, a duty – to withhold from public view.  For example, earlier versions of the electronic record are typically present in metadata.  Often they include recommendations, suggestions, "trial balloons," and tentative ideas that have not been thought through; suggested edits, comments, and criticisms from colleagues and supervisors; and words, phrases, sentences, and even entire passages that solely reflect the author's thought process because they were deleted early on by the author and thus never communicated to another person.  Thus, much information in metadata may arguably be withheld from disclosure under Section 6254(a) as preliminary drafts or notes, or under Section 6255(a) and the deliberative process privilege.

A second, different type of example arises from the law's special concern for privacy rights.  (Sections 6250, 6254(c); Cal. Const., Art. I, sec. 1.)  Earlier versions of an electronic record that are present in metadata may include information the disclosure of which would violate a third party's privacy.  A wide range of types of information may be encompassed within the right of privacy, from residential phone numbers and Social Security numbers to sensitive medical, financial, and sexual data to information provided by, and the identity of, whistleblowers.  When a record is finalized and put forward for public view, it hopefully will have been sufficiently reviewed to be sanitized of private information.  But earlier versions of the record may not have been crafted with the same sensitivity to privacy that will have gone into the final document.

As a third example, metadata may include confidential communications between attorney and client that do not appear in the text of the record.  The law protects such communications from disclosure and imposes on attorneys a duty not to disclose such information.  (Cal. Evid. Code §954; Cal. Bus. and Prof. Code §6068(e).)  Thus, in response to a public records request of a city attorney's office, in many instances an attorney would be duty-bound to search the metadata in electronic records as to which he or she may have had input, even if the record on its face does not reveal an attorney-client communication.  And if a city department in custody of an electronic record that had been developed collaboratively with its attorney disclosed the record as a Word document without checking the metadata embedded in the record, it would run the risk of inadvertently disclosing confidential attorney-client communications.

These examples – and more could be cited – merely illustrate the point that metadata may contain information that is subject to redaction under the Act.  If a city were to give a requester a document in Word form, the city would be required to review the metadata embedded in the document – or avoid doing so at its peril, because failure to conduct this review would risk disclosure of privileged material.  Yet reviewing the metadata would be a laborious and problematic task – different in nature and magnitude from the process of reviewing the text to determine information that should be redacted and information that is reasonably segregable from that which should be redacted.

While the paper cautions that the author's views are his own and not those of the City Attorney's Office, that office's advice to city agencies has been to convert Word documents to pdfs before release to the public.

Meanwhile, as noted yesterday by Ansley Schrimpf for the Reporter's Committee for Freedom of the Press,

The Arizona Supreme Court today ruled that metadata – information about the history, tracking and management of an electronic document – is subject to the state’s public records law.

Several national media organizations supported Phoenix police officer David Lake’s challenge that the city improperly denied his 2006 public records request for the metadata about documents he had previously requested and received. The city refused Lake’s request, arguing the metadata did not fall within the state’s definition of public records, which a court established in 1952, long before the advent of electronic documents.

In a unanimous opinion released today, the state’s high court held, “If a public entity maintains a public record in an electronic format, then the electronic version, including any embedded metadata, is subject to disclosure.”

David J. Bodney, a lawyer who helped write a friend-of-the-court brief on behalf of The Associated Press, Gannett Co., The E.W. Scripps Company, and The Reporters Committee for Freedom of the Press, said the state Supreme Court decision is a victory for public access. “The decision is important because we live in an electronic age where maintenance and preservation of public records in electronic format is quickly becoming the norm,” Bodney said. “Public bodies should not be permitted to withhold that information from public inspection.”

The case – Lake v. City of Phoenix – began after Lake filed an administrative complaint and federal lawsuit alleging employment discrimination. He also filed a records request for a supervisor’s notes, which he received, read and suspected had been backdated. So he requested the documents’ metadata, which can include information about a file’s creation, edit dates and authorship. After the city denied his request, Lake sued. Two lower courts sided with the city, including a division of the state’s appellate court, which ruled 2-to-1 against the metadata’s release in January.

The court stated:

The metadata in an electronic document is part of the underlying document; it does not stand on its own.  When a public officer uses a computer to make a public record, the bmetadata forms part of the document as much as the words on the page. . . Arizona’s public records law requires that the requestor be allowed to review a copy of the “real record.” . .  It would be illogical, and contrary to the policy of openness underlying the public records laws, to conclude that public entities can withhold information embedded in an electronic document, such as the date of creation, while they would be required to produce the same information if it were written manually on a paper public record.

We accordingly hold that when a public entity maintains a public record in an electronic format, the electronic version of the record, including any embedded metadata, is subject to disclosure under our public records law.  

Our decision is unlikely to result in the “administrative nightmare” that the City envisions.  A public entity is not required to spend “countless hours” identifying metadata; instead, it can satisfy a public records request merely by providing the requestor with a copy of the record in its native format.  Additionally, not every public records request will require disclosure of the native file. 

Public entities may provide paper copies if the nature of the request precludes any need for the electronic version.  Public records requests that are unduly burdensome or harassing can be addressed under existing law, which recognizes that disclosure may be refused based on concerns of privacy, confidentiality, or the best interests of the state.  . . . (balancing interests to determine if the state’s privacy or confidentiality concerns outweigh the presumption of disclosure).

The San Francisco Chronicle reported a month ago that

State Attorney General Jerry Brown's office said Thursday that he is investigating the community activist group ACORN at Gov. Arnold Schwarzenegger's request, after undercover videos at two California offices appeared to show staffers offering to help two purported clients break the law.

Spokesman Scott Gerber said Brown sent a letter to Schwarzenegger last week agreeing to look into whether the group's employees did anything illegal. Brown said he would also investigate whether the surreptitious recording of the meetings in ACORN's San Diego and San Bernardino offices violated California privacy laws, a subject the governor did not raise.

Gerber is the press official who the Chronicle now says has admitted routinely taping his phone calls from reporters.  Penal Code Section 832 allows for prosecution as a crime, as well as civil lawsuits for damages, of the recording of "confidential communications" without the consent of all parties. That ban, says the statute,

includes any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering or in any legislative, judicial, executive or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.

Some attorneys have been quoted as opining that the Brown press spokesman's recording of the reporters' phone inquiries may have been ethically wrong and deplorable, but was not a criminal violation of Section 832.  But reporters interviewing sources probably seldom if ever want the content of their questions known—at least until they break their story.  And they probably don't expect their interviews to be recorded, particularly by a government agency, and a law enforcement agency at that.

The California Supreme Court has interpreted Section 832 as meaning that a communication is confidential if at least one party to a conversation has “an objectively reasonable expectation that the conversation is not being overheard or recorded.” Flanagan v. Flanagan, 27. Cal. 4th 766 (2002).

If Brown's office does not even investigate the possibility that his own agent had a continuing practice of violating the law, his probe of those who recorded the ACORN interviews will strike many as hypocritical and, even worse, strictly political.

Yesterday, reports Robert Lewis in the Sacramento Bee, "Judges, law enforcement officials and union workers joined together to release an accountability plan for the Administrative Office of the Courts, calling on the Legislature to increase the agency's openness and ensure that state courts do not have to close one day a month."

"It seems to me that we ought to have our priorities," said Tom Hollenhorst, associate justice of the state Court of Appeal, in a press briefing announcing the accountability proposal. "You can't provide public services when the courts are closed." It was the latest salvo by critics of the state's judicial branch leadership, who made the choice this past summer to close state courts one day a month because of budget problems. Recently, that criticism has grown beyond the internal group of judges, courthouse workers and local law enforcement to include the other two branches of government.

Much of the ferment traces to the actions of Chief Justice Ronald George, coping with what he saw upon first taking office.

After becoming chief justice in May 1996, George visited all 58 counties, traveling close to 13,000 miles, he said. Many still were controlled locally, and many had significant money problems."There were courts that were going belly up," George said.

Alpine County's court reported it had $8 in its bank account. Other more major courts "weren't able to meet their basic fiscal requirements," he added.

"My responsibility was to get a permanent solution to this," George said.

So he and his staff pushed to move the courts from more than 220 municipal and superior court entities reliant on 58 counties to a uniform body that answered to the state.

Ultimately the Legislature and voters agreed, approving the power shift in the late 1990s.As the state courts agency's responsibility grew, so did its staffing and budget.

At the start of the 2003-04 fiscal year the administrative office had 528 budgeted positions. Today there are 1,065, of which 890 are filled, according to office figures.

The central administrative office budget also has grown from $99 million in 2003-04 – $119 million in 2009 dollars – to $134.4 million last fiscal year, according to administrative office figures. The entire state judicial branch's budget was $3.9 billion last year.

The growth is natural given the agency's increased responsibility, Overholt said. The office now controls 504 court facilities – about 17 million square feet of space – handles finances for courts in 58 counties, provides legal counsel once provided by county counsels, and maintains a statewide emergency plan, Overholt said.

"We have an enormous system, and it has to be adequately serviced," George said. "To me it's disingenuous for some people to ignore the shift in responsibility."

But today, reports Howard Mintz in the San Jose Mercury News, "California's court bureaucracy and leadership found itself under a microscope for nearly six hours by an Assembly oversight committee looking at possible bloat and secrecy in the judicial system."

The Committee on Accountability and Administrative Review, formed last year to explore waste and inefficiency in state agencies, convened the hearing to explore concerns about the state Administrative Office of the Courts, the bureaucratic arm of the largest court system in the country.

The committee decided to target the AOC because of mounting criticism of its growth and spending at a time when the California courts have been forced to cut millions from trial court budgets and take the unprecedented step of closing courthouses on the third Wednesday of each month to save money.

"My concern is about priorities," said Assemblywoman Audra Strickland, R-Moorpark, the vice chair of the committee.The committee members, who noted that the AOC hearing attracted more attention than any other probe they've conducted to date, specifically are targeting two issues: the growth of the AOC during a period of overall state budget deficits, and its spending on a unified technology system for the courts that could reach $2 billion.

And today's Sacramento Bee carried a guest opinion piece expressing the same concern—written by a San Diego County Superior Court Judge Dan Goldstein.

The touchstone of the judiciary is transparency, accountability and access to the courts. Judges must be responsible for the administration of justice and must disclose not only how we make our decisions but why we make our decisions. Judges make these decisions every day in open court, on the record, subject to public scrutiny.

Further, it is imperative that judges strive to ensure that all citizens, rich or poor, strong or weak, injured and needy have access to the courts when they most need it. But the AOC, which controls the $3.66 billion budget for California's county trial courts, has operated outside of public oversight – with predictable results.

Consider this:

• As The Bee reported Sunday, massive cost overruns and poor planning mean the new computer system estimated to cost $260 million could instead cost taxpayers more than $2 billion, and is still years away from completion. That's equivalent to more than $1 million per computer system for each judge in the state of California.

• According to the Department of Finance, the AOC is at least three years from selling the first of $5 billion in bonds to refurbish and rebuild courthouses – but is still taking hundreds of millions in fees from county trial courts every year; fees that would otherwise be used for court operations and keeping courts open to the public.

• In July, the Judicial Council transferred $9.28 million to prevent cuts to court-appointed dependency council from funding sources that the AOC had previously said did not exist.

• While county courts have been forced to lay off employees, the AOC continues to hire high-priced employees. In fact, the AOC has grown from 490 to 901 since 2004, and continues to hire despite a hiring freeze. One-third of AOC employees earn at least $100,000 a year.

Massive new spending on buildings and computer systems at a time when the public is feeling the pinch cries out for a more open public debate. Despite judges wanting to keep our courts open and safe, we have been unable to move the AOC to focus its priorities and the taxpayers' money on transparent, accountable, open courts.

Unfortunately, the AOC's top administrators have grown accustomed to working in the dark. Unlike every other public agency in California, the AOC is not required to make its records, including its budgets, available to the public. The Judicial Council and the AOC do not provide the public with meaningful opportunities to hear and provide input on matters that affect us all, and there are no independent audits of the AOC's books.

But it doesn't have to be that way. Fortunately, discussions to shine a light on the AOC will start in earnest today when the judiciary's top leaders come to Sacramento for a special hearing on accountability.

Here are some conditions that the Legislature could set to make sure that Californians are seeing the full picture on the judiciary:

• Insist that keeping California's courtrooms open and maintaining public services is the first priority of the courts.

• Provide the public access to administrative records, including budgets.

• Provide real opportunities for public input in decision-making.

• Require independent financial audits of both the AOC and the courts.

Just days after completing a four-month censure and suspension for a comment casting doubt on the qualification of short women to be firefighters, Rodeo-Hercules Fire District board member Bill Prather faces possible censure yet again.

This time, it's over a remark he is accused of making in a Pinole bar that a friend of another board member says he overheard.

On Aug. 29, "Director Prather again made inappropriate statements, at 'Pete's Place,' " reads a draft resolution on Wednesday's board meeting agenda. "He was overheard assuring that he would not allow any (expletive) female 5'3 inch firefighter (to) be a firefighter in the district as long as (he is) on the board."

The resolution further states that "on June 25, 2009, Director Prather was also heard asserting that his position regarding the employment of female firefighters was one of 'revenge.' " On June 25, the board censured Prather over a comment he made during a Feb. 18 open-session board discussion of the Pack Test, a fitness test he advocates and the firefighters union opposes.

Prather opined that some firefighters are unqualified. When questioned about whom he meant, he said, "Five-foot-two-inch females that can't do the job," according to the meeting minutes. Prather has repudiated his remark and apologized publicly several times.

Also on June 25, the board suspended Prather from sitting on the board for 120 days. The suspension, according to district counsel William Ross, was necessary because Prather created a hostile work environment by his remark and also because he exhibited "prejudgment" by making up his mind on the fitness test.

It's the moment nosy Norwegian neighbors have been waiting for — the release of official records showing the annual income and overall wealth of nearly every taxpayer in the Scandinavian country.

In a move that would be unthinkable elsewhere, tax authorities in Norway have issued the "skatteliste," or "tax list," for 2008 to the media under a law designed to uphold the country's tradition of transparency. It's Norwegians' way of keeping up with the Johansens — from fishermen on the western fjords and Sami reindeer herders in the north to members of the committee that awarded President Barack Obama the Nobel Peace Prize.

To non-Scandinavians, it would seem to be a gross violation of privacy. The tax list stirs up a media frenzy, with splashy headlines revealing oil-rich Norway's wealthiest man, woman and celebrity couple. The data shows that former cross-country skiing great Bjoern Daehlie, who has eight Olympic gold medals, also has plenty of cash — 29.3 million kroner ($5.4 million). Actress and director Liv Ullmann, for instance, earned $17,300 in Norway, and has a wealth of $2.5 million. Income earned or kept abroad, or otherwise in some sort of tax shelter, is not included. Pioneering women's long-distance runner Grete Waitz, a nine-time New York City Marathon champion, earned $13,500 in Norway, and has a wealth of $90,000.

Many media outlets use the tax records to produce their own searchable online databases. In the database of national broadcaster NRK, you can type a subject's name, hit search and within moments get information on what that person made last year, what was paid in taxes and total wealth. It also compares those figures with Norway's national averages for men and women, and that person's city of residence.

Defenders of the system say it enhances transparency, deemed essential for an open democracy. "Isn't this how a social democracy ought to work, with openness, transparency and social equality as ideals?" columnist Jan Omdahl wrote in the tabloid Dagbladet. He acknowledged, however, that many treat the list like "tax porno" — furtively checking the income of neighbors or co-workers.

Critics say the list is actually a threat to society. "What each Norwegian earns and what you have in wealth is a private matter between the taxpayer and the government," said Jon Stordrange, director of the Norwegian Taxpayer's Association. Besides providing criminals with a useful tool to find prime targets, he said the list generates playground taunts of my-dad-is-richer-than-your-dad. "The children of people with low wages are being teased about it in the schools," Stordrange said Thursday. "People with low salaries are being met with comments at the grocery store, 'How can you live on these low wages?'"

The information had been available to media until 2004, when a more conservative government banned the publication of tax records. Three years later, a new, more liberal government reversed the legislation and also made it possible for media to obtain tax information digitally and disseminate it online. Norway's 2007 law emphasized that "first and foremost, it's the press that can contribute to a critical debate" on wealth and the elaborate tax scheme that, along with the country's oil wealth, keeps Norway's extensive — and expensive — welfare system afloat.

The country of 4.8 million people had the third-highest income tax among industrialized countries in 2007, behind Denmark and New Zealand, according to the latest statistics from the Organization for Economic Cooperation and Development. Since the latest tax data was released Wednesday, national media have scrambled to analyze it, building top-10 lists and graphic breakdowns of income differentials between sexes, age groups and residences. 

The suspended professors include the current and former presidents of the faculty union, which supported the student protest.

With California's economy in a free fall, and the budgets of public colleges and universities in similar decline, student and faculty protests have been picking up across the state, and several campuses have seen building takeovers or other examples of civil disobedience. But the Southwestern situation—with faculty members getting kicked off campus—is notable for the extent of administration reaction to a protest that was relatively mild compared to some others.

The letters that the four faculty members received telling them that they had been suspended immediately did not say why. But the letters referenced (by number) a section of California's penal code that bars people from "willfully disrupting the orderly operation of the campus."

Southwestern officials could not be reached to explain why they took this action. The college's spokeswoman was recently laid off and she has not been replaced. The college's president, Raj Chopra, is reportedly on vacation and his e-mail reply says that he will be off campus until November 13. Chopra's executive assistant gave local reporters a statement that said that the reason for the suspensions could not be made public, and that "the college shares our students' concerns about reductions in state funding for the college. The college respects, values and is committed to freedom of expression.”

Philip Lopez, an English professor who is president of the faculty union, said that there is no other possible explanation for the suspensions except the rally. "Nothing else happened the day before," he said. Lopez said that the union—an affiliate of the National Education Association—has consulted with union lawyers and is demanding a hearing, which the college must schedule within seven days.

Seeking to justify their failed four-year pursuit of the defendants, prosecutors accused Senior U.S. District Judge T.S. Ellis III of imposing "additional intent requirements" that were "not mandated by statute." Indeed, Ellis, who sits in Alexandria, Va., had announced that he would construe the provision under which Steven Rosen and Keith Weissman were charged as requiring a heightened state of mind on the defendants' part, the knowledge that their actions could potentially harm America's security — a burden the government could not meet.

Ellis ruled as he did in an effort to ensure that the highly unusual prosecution did not run afoul of the First Amendment. Espionage cases with serious free speech concerns do not come around that frequently, but when they do, they test, in a way that few cases ever do, our commitment to maintaining an open society.

The collapse of the AIPAC prosecution makes clear that we must urgently reform the 1917 Espionage Act, both to bring it up to date with a modern understanding of the First Amendment and to minimize the prospects of costly and unsuccessful indictments in the future. There is a significant risk, however, that the failures in the AIPAC case will be forgotten and the whole thing will just fade away (as it seems to have already done) until the next time the Department of Justice spots a tempting target. Congress must not let this happen because the vagueness that now surrounds the law is harmful to free speech and national security interests alike.

The problems DOJ faced in the AIPAC case were a predictable result of its attempt to stretch the act beyond its established parameters. In a typical espionage case in which a defendant is accused of acting as a mole inside the U.S. government and passing sensitive material to a foreign power, prosecutors need only show that the accused acted "willfully." This standard, which essentially means that a person intended to violate the law and did not make an innocent mistake, is contained in the statute.

The AIPAC case was very different. Prosecutors merely alleged that Rosen and Weissman, both civilians and neither employed by the government, obtained classified information about Iran's nuclear program through conversations with Lawrence Franklin, a Pentagon analyst, and then shared these secrets with reporters and foreign policy experts in an effort to influence U.S. strategy in the region.

The espionage laws last brushed up in the courts against free speech protections 25 years ago when the government prosecuted Samuel Loring Morison, a naval intelligence officer, for leaking secret photographs of a Soviet aircraft carrier to Jane's Defense Weekly. Morison claimed he wanted to alert the public to the buildup of the Soviet navy. He was convicted and jailed, and his conviction was upheld by a federal appeals court.

However, because free speech was at issue — Morison's disclosure was to the press, and he did not work for a foreign power — the courts felt bound to read additional constraints into the statute to make it constitutional. Judge James Dickson Phillips of the U.S. Court of Appeals for the 4th Circuit warned against such judicial gymnastics. The espionage laws "as now broadly drawn are unwieldy and imprecise instruments," he wrote, and forcing judges to add new protections not found in the text "on a case-by-case basis [is] a slender reed upon which to rely for constitutional application of these critical statutes." His concurring opinion called upon Congress to revise the act "through carefully drawn legislation."

Since that decision, Congress has done nothing to provide the clarification most needed after Morison: that, although the law may reach an official with a security clearance who dishes to the press, it does not apply to private individuals without security clearance who are not agents of foreign powers. The continuing uncertainty about the boundary between the Espionage Act and the First Amendment is reflected in Ellis' holding that the prosecution would have to show not only that Rosen and Weissman's activities were "potentially harmful" to the United States but, crucially, that they also "knew" this fact.

On one level, this first-of-its-kind ruling indicates that the Espionage Act might be constitutionally applied to private U.S. citizens, so long as some higher state-of-mind requirement is satisfied. However, the fact that the government abandoned a four-year, multimillion-dollar prosecution because it could not accept Ellis' view of what this requirement entailed shows that the Espionage Act remains mired in uncertainty. It's well past time for Congress to define the Espionage Act's application to defendants like Rosen and Weissman in this case (or journalists or academics in the next) who are neither "spies" nor sworn to keep government secrets. 

"Every city in California that has a similar ordinance is going to have to change," Carlsbad City Attorney Ronald Ball said Monday as he discussed the court case.

In early October, the Ninth Circuit Court of Appeals overturned a lower court's ruling in a San Clemente court case and declared that the distribution of handbills on vehicles was a free speech right. Because of that decision, Carlsbad's city attorney now is recommending that the City Council lift its 15-year-old prohibition against depositing handbills on vehicles in parking lots. The proposal will go before the council at its 6 p.m. Tuesday meeting at City Hall, 1200 Carlsbad Village Drive.

In the appeals court ruling, Judge Marsha Berzon wrote that cities cannot establish a universal ban on "placing leaflets on the windshields of empty vehicles parked on public streets," just as they cannot ban all door-to-door solicitation. The case—Klein v. the City of San Clemente—involves people who were distributing leaflets about the country's immigration policy. Initially, lead distributor Steve Klein handed fliers out to people walking along San Clemente streets; then he and others began slipping their papers under the windshield wipers of unoccupied vehicles, court records indicate. That was against the law in San Clemente. Under an anti-littering ordinance, the city had banned the throwing or depositing of any commercial or noncommercial advertising in or upon any vehicles.

Klein sued, a lower court found in favor of the city, then Klein appealed. David Blair-Loy, legal director of the American Civil Liberties Union of San Diego and Imperial Counties, said the case is a classic free speech debate. People may not like getting fliers that encourage them to vote for a political candidate or buy a specific product, but their distributors have the right to give them out, he said. "This country has an ancient and hallowed tradition of political leafletting," he said. And, in today's culture, the best way to distribute those messages is to place them on vehicles, he said, commenting that nobody walks to the town square any more.

Ball said Monday that he believes the appeals court decision is likely to stand, so he has directed the City Council to repeal Carlsbad's handbill ban. If approved, the change would probably take effect in December. City officials said Carlsbad's ban was probably enacted in response to complaints from shoppers at the Westfield's mall on the northern edge of the city. 

Our overview comments appeared here last week and our conclusions are posted separately below.  The following shows the actual language of the rules, followed by any comments on meaning or effect. Any links or italics in the text of the rules are inserted for explanatory purposes and are not part of the rule.

 (1) Disputes under this rule with a superior court about access to budget and management information are subject to the process described in rule 10.803.

See that rule below. "Budget and management information" refers to the kind of mainly financial information that is already open to the public under Rule 10.802 because it is deemed relevant to courts' bargaining with employee organizations.

 (3) Whenever it is made to appear by verified petition that a judicial administrative record is being improperly withheld from disclosure, the court with jurisdiction thereof will order the judicial branch entity to disclose the records or show cause why it should not do so. The court will decide the case after examining the record, in camera if appropriate, papers filed by the parties, and any oral argument and additional evidence as the court may allow.

 (5) An order of the court, either directing disclosure or supporting the decision of the judicial branch entity refusing disclosure, is not a final judgment or order within the meaning of section 904.1 of the Code of  Civil Procedure from which an appeal may be taken, but will be immediately reviewable by petition to the appellate court for the issuance of an extraordinary writ. Upon entry of an order under this subdivision, a party must, in order to obtain review of the order, file a petition within 20 days after service on him or her of a written notice of entry of the order or within such further time not exceeding an additional 20 days as the court may for good cause allow. If the notice is served by mail, the period within which to file the petition will be increased by 5 days. A stay of an order or judgment will not be granted unless the petitioning party demonstrates it will otherwise sustain irreparable damage and probable success on the merits. Any person who fails to obey the order of the court will be cited to show cause why he or she is not in contempt of court. 

(6) The court will award court costs and reasonable attorney fees to the plaintiff should the plaintiff prevail in litigation filed under this subdivision. The costs and fees will be paid by the judicial branch entity and will not become a personal liability of any individual. If the court finds that the plaintiff’s case is clearly frivolous, it will award court costs and reasonable attorney fees to the judicial branch entity. 

All these provisions are virtually verbatim borrowings from the enforcement provisions of the California Public Records Act, applicable to non-judicial government records, in the following Government Code Sections:

6258. Any person may institute proceedings for injunctive or declarative relief or writ of mandate in any court of competent jurisdiction to enforce his or her right to inspect or to receive a copy of any public record or class of public records under this chapter. The times for responsive pleadings and for hearings in these proceedings shall be set by the judge of the court with the object of securing a decision as to these matters at the earliest possible time.

6259. (a) Whenever it is made to appear by verified petition to the superior court of the county where the records or some part thereof are situated that certain public records are being improperly withheld from a member of the public, the court shall order the officer or person charged with withholding the records to disclose the public record or show cause why he or she should not do so. The court shall decide the case after examining the record in camera, if permitted by subdivision (b) of Section 915 of the Evidence Code, papers filed by the parties and any oral argument and additional evidence as the court may allow.

(b) If the court finds that the public official's decision to refuse disclosure is not justified under Section 6254 or 6255, he or she shall order the public official to make the record public. If the judge determines that the public official was justified in refusing to make the record public, he or she shall return the item to the public official without disclosing its content with an order supporting the decision refusing disclosure.

(c) In an action filed on or after January 1, 1991, an order of the court, either directing disclosure by a public official or supporting the decision of the public official refusing disclosure, is not a final judgment or order within the meaning of Section 904.1 of the Code of Civil Procedure from which an appeal may be taken, but shall be immediately reviewable by petition to the appellate court for the issuance of an extraordinary writ. Upon entry of any order pursuant to this section, a party shall, in order to obtain review of the order, file a petition within 20 days after service upon him or her of a written notice of entry of the order, or within such further time not exceeding an additional 20 days as the trial court may for good cause allow. If the notice is served by mail, the period within which to file the petition shall be increased by five days. A stay of an order or judgment shall not be granted unless the petitioning party demonstrates it will otherwise sustain irreparable damage and probable success on the merits. Any person who fails to obey the order of the court shall be cited to show cause why he or she is not in contempt of court.

(d) The court shall award court costs and reasonable attorney fees to the plaintiff should the plaintiff prevail in litigation filed pursuant to this section. The costs and fees shall be paid by the public agency of which the public official is a member or employee and shall not become a personal liability of the public official. If the court finds that the plaintiff's case is clearly frivolous, it shall award court costs and reasonable attorney fees to the public agency.

Procedurally speaking, accordingly, it should be no more difficult, time-consuming or costly to sue for access to withheld judicial administrative records than to do so for any other state or local records under the California Public Records Act.

Rule 10.501.  Maintenance of budget and management information

(a) Maintenance of information by the superior court 
Each superior court must maintain for a period of three years from the close of the fiscal year to which the following relate: 
 (1) Official documents of the superior court pertaining to the approved superior court budget allocation adopted by the Judicial Council and actual final year-end superior court revenue and expenditure reports as required in budget procedures issued by the Administrative Office of  the Courts to be maintained or reported to the council, including budget allocation, revenue, and expenditure reports; 
 (2) Records or other factual management information on matters that are within the scope of representation as defined in Government Code section 71634 unless distribution is otherwise precluded by law; and 
 (3) Records or other factual management information on other matters referred to in Government Code section 71634 unless distribution is otherwise precluded by law.

 (b) Maintenance of information by the Administrative Office of the Courts 
The Administrative Office of the Courts must maintain for a period of three years from the close of the fiscal year to which the following relate: 
 (1) Official approved budget allocations for each superior court; 
 (2) Actual final year-end superior court revenue and expenditure reports required by budget procedures issued by the Administrative Office of the Courts to be maintained or reported to the council that are received from the courts, including budget revenues and expenditures for each superior court; 
 (3) Budget priorities as adopted by the council; and
 (4) Documents concerning superior court budgets considered or adopted by the council at council business meetings on court budgets. 

These provisions are already in place under an existing rule that has been renumbered as 10.501. By contrast, neither the California Public Records Act nor any other general statute applicable to executive branch or local government records contains a retention schedule applicable to all agencies.  But one hedge against deliberate destruction of court administrative or CPRA-covered records is found in the following Government Code Sections:

6200. Every officer having the custody of any record, map, or book, or of any paper or proceeding of any court, filed or deposited in any public office, or placed in his or her hands for any purpose, is punishable by imprisonment in the state prison for two, three, or four years if, as to the whole or any part of the record, map, book, paper, or proceeding, the officer willfully does or permits any other person to do any of the following:
(a) Steal, remove, or secrete.
(b) Destroy, mutilate, or deface.
(c) Alter or falsify.

6201. Every person not an officer referred to in Section 6200, who is guilty of any of the acts specified in that section, is punishable by imprisonment in the state prison, or in a county jail not exceeding one year, or by a fine not exceeding one thousand dollars ($1,000), or by both such fine and imprisonment.

Rule 10.803.  Information access disputes—writ petitions (Gov. Code,  § 71675)
 
(a) Availability 
This rule applies to petitions filed under rule 10.500(j)(1) and Government Code section 71675(b). 

 (b) Assignment of Court of Appeal justice to hear the petition 
 (1) The petition must state the following on the first page, below the case number, in the statement of the character of the proceeding (see rule  2.111(6)): 
 
“Writ petition filed under rule 10.500(j)(1) and Government Code section 71675-
—Assignment of Court of Appeal justice required.” 

(2) When the petition is filed, the clerk of the court must immediately request of the Judicial Assignments Unit of the Administrative Office of the Courts Chief Justice the assignment of a hearing judge from the panel established under (e).   (3) If an assignment is made, the judge assigned to hear the petition in the  superior court must be a justice from a Court of Appeal for a district  other than the district for that superior court. 

(c) Superior court hearing 
 (1) The superior court must hear and decide the petition on an expedited basis and must give the petition priority over other matters to the extent permitted by law and the rules of court. 
 (2) The petition must be heard by a judge assigned by the Chief Justice from the panel of hearing judges established under (e). 
 
(d) Appeal 
An appeal of the superior court decision must be heard and decided on an  expedited basis in the Court of Appeal for the district in which the petition  was heard and must be given priority over other matters to the extent  permitted by law and the rules of court. The notice of appeal must state the  following on the first page, below the case number, in the statement of the  character of the proceeding (see rule 2.111(6)): 

 “Notice of Appeal on Writ Petition filed under rule 10.500(j)(1) and  Government Code section 71675-
—Expedited Processing Requested.” 

(e) Panel of hearing judges 
The panel of judges who may hear the petitions in the superior court must consist of Court of Appeal justices selected by the Chief Justice as follows: 
 (1) The panel must include at least one justice from each district of the Court of Appeal. 
 (2) Each justice assigned to hear a petition under (c)(2) must have received training on hearing the petitions as specified by the Chief Justice.

Rule 10.803, already in existence, is amended to apply to lawsuits seeking either "budget and management information" or any other administrative records sought under the proposed rules. Rule 10.803 addresses one of the first questions that will occur to most observers of the new access rules: How do you sue the court system for its own records?  The answer is: Have the case heard by judges with as little personal stake as possible in the outcome.  For example, when the Sacramento Valley Mirror in the north Sacramento Valley sued the local superior court earlier this year for documentation of the remodeling costs of a judge's chambers—a good example of how the new rules might be used, but actually brought under the current, more limited rules—a justice of the Fifth District Court of Appeal heard the case, sitting as a trial judge, and ruled in the newspaper's favor.

California's judicial branch must be credited for embarking on a remarkable transparency initiative unparalleled—so far as is known—in other state court systems in the United States or elsewhere. With no compulsion to do so, it has subjected its own administrative records—heretofore subject to quite limited access for the benefit of court labor organizations—to the same presumptions of openness, access procedures and enforcement processes as have applied to California's executive branch and local government agencies for the past 41 years under the California Public Records Act (CPR).

These rules might well have taken as their model the law that makes administrative records of the legislature—how things are run and done behind the scenes under the Capitol dome—largely unavailable for public scrutiny.  There's an excellent separation of powers case to be made that lawmakers cannot force more sunshine on the courts' business than they are willing to accept for their own.

Accordingly, the court system, the Judicial Council and Chief Justice George, whose role in impelling this undertaking is unmistakeable, are entitled to respect and gratitude for adopting this comprehensive approach to transparency.

That said, there is some remaining work to be done.  An amendment to the Article I, section (3) of the California Constitution approved by more than 83 percent of the voters at the November 2004 election—Proposition 59—states the following:

The people have the right of access to information concerning the conduct of the people's business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny. . . 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 protected by the limitation and the need for protecting that interest.

There are a number of instances in the proposed rules where the right of access to records is limited by exemptions that are either significantly broader than those in the CPRA or that have no parallel in that law or how it has been interpreted, or that contain words or phrases creating significant ambiguity as to what effect they would have, or that create cost burdens unknown to the CPRA.

The Judicial Council should publicly debate and make the constitutionally required findings or, if the noted limitations cannot be plausibly anchored to an "interest protected by the limitation and the need for protecting that interest," should remove the limitation.

In the following summary of issues to be addressed, the actual language of the proposed rule is higlighted, and any italics have been added for emphasis.

Compensation: Proposed Rule 10.500 (e) (2) states:

Judicial administrative records subject to inspection and copying unless exempt from disclosure under subdivision (f) include . . . Actual and budgeted employee salary and benefit information, by position classification, consisting of the number of employees and compensation by classification, and any document, whether prepared periodically or for a special purpose, that shows any changes in salaried positions by classification . . . 

The California Supreme Court has ruled that the actual compensation of California executive branch and local government employees is, under the CPRA, public information.  If this language  means that identifiable court employees’ compensation and raises or bonuses are to be confidential, this would be the first major departure from CPRA policy and a likely source of controversy. Judges' salaries have never been secret, but their actual compensation, generously supplemented as it is by Los Angeles County, for example, may or may not be determinable under this provision. Meanwhile tens of thousands of other judicial branch employees may likewise have their actual pay shielded.

Contracts: Proposed Rule 10.500 (e) (2) states:

Judicial administrative records subject to inspection and copying unless exempt from disclosure under subdivision (f) include . . . Copies of executed contracts with outside vendors and payment information and policies concerning goods and services provided by outside vendors without an executed contract . . .

“Executed” would normally mean fully performed.  Is the intent here to release contracts only after performance, and not proposed contracts or those in mid-course of performance?

Audits: Proposed Rule 10.500 (e) (2) states:

Judicial administrative records subject to inspection and copying unless exempt from disclosure under subdivision (f) include . . . Final audit reports . . .
Why “final?”  Is the intent to give courts or the Administrative Office of the Court the opportunity to negotiate with or pressure the auditor to tone down awkward findings or conclusions before a report is “accepted?”

Drafts and Memos: Proposed Rule 10.500 (f) (1) states:

Nothing in this rule requires the disclosure of judicial administrative records that are . . . Preliminary writings, including drafts, notes, working papers, and inter–judicial branch entity or intra–judicial branch entity memoranda, if the public interest in withholding those records clearly outweighs the public interest in disclosure . . . 

The comparable exemption in the California Public Records Act (Government Code Section 6254 (a)) is decidedly tighter, applicable only to "(p)reliminary drafts, notes, or interagency or intra-agency memoranda that are not retained by the public agency in the ordinary course of business, if the public interest in withholding those records clearly outweighs the public interest in disclosure." The single appellate decision interpreting this section concluded: "The second condition of section 6254, subdivision (a) is that the records be documents which are not retained by the Department in the ordinary course of business. If preliminary materials are not customarily discarded or have not in fact been discarded as is customary they must be disclosed. (§ 6254, subd. (a).) Thus, the agency controls the availability of a forum for expression of controversial views on policy matters by its policy and custom concerning retention of preliminary materials."  Citizens for A Better Environment v. Department of Food and Agriculture, 171 Cal. App. 3d 704, 714 (1985). But under this rule, every "preliminary" document in the adminiistrative files of the judicial branch would be subject to withholding in the public interest, as decided by the courts.

Personal Privacy: Proposed Rule 10.500 (f) (3) states:

Nothing in this rule requires the disclosure of judicial administrative records that are . . . Personnel, medical, or similar files, or other personal information the disclosure of which would constitute an unwarranted invasion of personal privacy, including but not limited to records revealing home addresses, home telephone numbers, cellular telephone numbers, private e-mail addresses, and social security numbers of judicial branch personnel; and work e-mail addresses and work telephone numbers of justices, judges, subordinate judicial officers, and their staff attorneys . . .

The comparable exemption in the California Public Records Act (Government Code Section 6254 (c)) applies simply to "(p)ersonnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy." This rule's emphasis on withholding home contact information for judges is understandable, as well as all employees' Social Security numbers.  A number of statutes already make such information confidential and therefore exempt from disclosure under the CPRA.  The drafters of this rule believe that work contact information for those involved in the adjudication of cases also needs confidentiality to prevent improper ex parte contacts—behind the scenes lobbying—by the parties. That is a consideration not arising under the California Public Records Act, but whether it should be addressed under the rubric of "personal privacy" is doubtful. 

Other Confidentiality Rules: Proposed Rule 10.500 (f) (5) states:

Nothing in this rule requires the disclosure of judicial administrative records that are . . . Records the disclosure of which is exempted or prohibited under state or federal law, including provisions of the California Evidence Code relating to privilege, or by court order in any court proceeding . . .

 The comparable exemption in the California Public Records Act (Government Code Section 6254 (k)) applies to "(r)ecords, the disclosure of which is exempted or prohibited pursuant to federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege." The italicised phrase in the proposed exemption is unclear unless it purports to make court information summarily exempt from disclosure by court order. That effect would obviously undermine these rules entirely by giving any court a veto over release of its own records, with no need to justify the secrecy.

Complaints and Discipline: Proposed Rule 10.500 (f) (7) states:

Nothing in this rule requires the disclosure of judicial administrative records that are . . . Records related to complaints regarding or investigations of justices, judges (including temporary and assigned judges), and subordinate judicial officers . . .

There is no comparable exemption in the California Public Records Act.  Complaints against judges are processed and adjudicated by the Commission on Judicial Performance, which is not subject to these proposed rules and which is required to keep raw complaints confidential until formal proceedings commence. California Constitution Article 18, section (j). As for "subordinate judicial officers" generally—not dealt with by the Commission—courts interpreting the CPRA have held that ordinary (non law enforcement) employees have no privacy rights preventing the release of complaints against them that appear "well founded," including but not limited to those that have prompted a confirming investigation and discipline. American Federation of State, County and Municipal Employees v. Regents of the University of California, 80 Cal.App.3d 913 (1978), Bakersfield City School District v. Superior Court (Bakersfield Californian), 118 Cal.App.4th 1041 (2004).

Appraisals and Estimates: Proposed Rule 10.500 (f) (8) states:

Nothing in this rule requires the disclosure of judicial administrative records that are . . . The contents of real estate appraisals or engineering or feasibility estimates and evaluations made for or by the judicial branch entity relative to the acquisition of property or to prospective public supply and construction contracts, until all of the property has been acquired or the relevant contracts have been executed. This provision does not affect the law of eminent domain; 

The comparable exemption in the California Public Records Act (Government Code Section 6254 (h)) applies to "the contents of real estate appraisals or engineering or feasibility estimates and evaluations made for or by the state or local agency relative to the acquisition of property, or to prospective public supply and construction contracts, until all of the property has been acquired or all of the contract agreement obtained. However, the law of eminent domain shall not be affected by this provision." Use of the term "executed" in the proposed rule suggests a longer delay, namely, no disclosure until the contract has been performed, rather than until the contract has been formed—the "agreement obtained."  The reason for this difference is unclear.

Business Information: Proposed Rule 10.500 (f) (10) states:

(B) “Privileged information” refers to material that falls within recognized constitutional, statutory, or common law privileges;

(C) “Confidential information” means: 

(i) For information involuntarily submitted to the judicial branch entity, information the disclosure of which would (1) impair the judicial branch entity’s ability to obtain necessary information in the future or (2) cause substantial harm to the competitive position of the person from whom the information was obtained; 

(ii) For information voluntarily submitted to the judicial branch entity, the kind of information that would customarily not be released to the public by the person from whom it was obtained;

There is no express general exemption for either trade secrets or proprietary information in the California Public Records Act.  Government Code Section 6254 (k) exempts information that is privileged under the Evidence Code, which has the following sections:

1060. If he or his agent or employee claims the privilege, the owner of a trade secret has a privilege to refuse to disclose the secret, and to prevent another from disclosing it, if the allowance of the privilege will not tend to conceal fraud or otherwise work injustice.

1061.  (a) For purposes of this section . . .
     (1) "Trade secret" means "trade secret," as defined in subdivision (d) of Section 3426.1 of the Civil Code, or paragraph (9) of subdivision (a) of Section 499c of the Penal Code.

The Civil and Penal Code provisions identically define “trade secret” as information, including a formula, pattern, compilation, program, device, method, technique, or process, that: "derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy."  Thus the proposed rule embodies a looser definition of what is a trade secret, lacking the italicized criterion.  As for "confidential information," this category refers to information that is not privileged, but whose release would somehow make it harder for the judicial entity to get similar information in the future (despite its being involuntariy submitted, i.e. compelled by law) or would cause the commercial submitter "substantial harm," or even information that the voluntary submitter would not normally release to the public, i.e. virtually any information not issued in a press release. 

Moreover, the vague and overbroad categories of "confidential information" should not be necessary as an exemption in this rule.  There is a legal privilege—again, acting as a CPRA exemption under Government Code Section 6254 (k)—in Evidence Code Section 1040, which states:

(a) As used in this section, "official information" means information acquired in confidence by a public employee in the course of his or her duty and not open, or officially disclosed, to the public prior to the time the claim of privilege is made.
(b) A public entity has a privilege to refuse to disclose official information, and to prevent another from disclosing official information, if the privilege is claimed by a person authorized by the public entity to do so and:

(1) Disclosure is forbidden by an act of the Congress of the United States or a statute of this state; or

(2) Disclosure of the information is against the public interest because there is a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice; but no privilege may be claimed under this paragraph if any person authorized to do so has consented that the information be disclosed in the proceeding.  In determining whether disclosure of the information is against the public interest, the interest of the public entity as a party in the outcome of the proceeding may not be considered.

This privilege for official information acquired in confidence has been repeatedly interpreted by the courts as requiring essentially the same balancing of interests as under the CPRA's Government Code Section 6255. In other words, what this proposed rule means by "confidential information" that is per se protected could be withheld under the official information privilege only if the court concluded that the public interest in nondisclosure outweighed the public interest in disclosure. It is not clear why the judicial branch needs such a level of secrecy—one that finds no parallel in the CPRA.

Management Decision Documentation: Proposed Rule 10.500 (f) (11) and (12) state:

Nothing in this rule requires the disclosure of judicial administrative records that are . . . (11) Records the disclosure of which would expose a judicial branch entity’s or judicial branch personnel’s decision-making process so as to discourage candid discussion within the entity or the judicial branch and thereby undermine the entity’s ability to perform its function, unless the public interest served by disclosure of the record clearly outweighs the public’s interest in withholding the record; or

(12) If on the facts of the specific request for records the public interest served by withholding the record clearly outweighs the public interest served by disclosure of the record. 

These two exemptions find their parallel in court interpretations of the CPRA's Government Code Section 6255, which states: "The agency shall justify withholding any record by demonstrating that the record in question is exempt under express provisions of this chapter or that on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record." In other words, even where an agency cannot point to any exemption from disclosure in the CPRA, it may withhold certain information if, given the realities of the situation, the public interest in not releasing the information "clearly" overrides the public interest in having it be known. 

This "catchall" or wild card exemption, as invoked in reported appellate cases to date, has been successful in justifying withholding of information seven times, partially successful twice, and unsuccessful 14 times.  In one of the successful instances, the California Supreme Court held that the public's interest in effective decision-making by government officials outweighed its interest in understanding the influences brought to bear on such decision-making.  In particular, the court concluded that a disclosure of who had met with a governor (as reflected in his appointment calendar) over a five-year period would endanger the quality of the governor's decisions by deterring people from seeking to meet with him in the future and thus reducing the quantity or quality, or both, of the information and advice he relied on.  Preserving the governor's diverse mix of advisory input, in short, was held to be more important than public awareness of where that input came from. 

This decision, in Times Mirror Co. v. Superior Court (State of California), 53 Cal.3d 1325 (1991), has been followed in three lower appellate cases since, and its frequently-called deliberative process "privilege"—not one recognized in the Evidence Code—is increasingly seized on by public agencies for withholding all kinds of communications and other documents from disclosure under the CPRA—down to memos and e-mails among city staff members.  It is safe to say that if Section 6255 is a wild card for secrecy in the CPRA, the deliberative process rationale is the wildest play of that card—so far, a sure trump.  These rules could get the benefit of its effects under (12) above alone.  Why (11) is necessary as a codification of a particular case (Times Mirror Co.) decided under the rule in (12) is unclear, unless to give the courts the most express and emphatic authority for avoiding public scrutiny of the sources, influences and factors contributing to decisions on how the judicial branch is run.

Chargeable Copying Fee: Proposed Rule 10.500 (b) (4) (A) states: 

A judicial branch entity, on request, must provide a copy of a judicial administrative record not exempt from disclosure if the record is of a nature permitting copying, subject to payment of the fee specified in this rule or other applicable statutory fee:
 (i) A judicial branch entity may impose a fee reasonably calculated to cover the judicial branch entity’s direct costs of producing a paper or hard copy of any record; 
 (ii) A judicial branch entity may impose a fee reasonably calculated to cover the judicial branch entity’s direct costs of creating a record or producing an electronic copy of a record as specified in subdivision (i); and  (iii) A judicial branch entity may require advance payment of any fee. 

So far, the cost rules closely parallel those in the CPRA, which states in Government Code Section 6253 (b): "Except with respect to public records exempt from disclosure by express provisions of law, each state or local agency, upon a request for a copy of records that reasonably describes an identifiable record or records, shall make the records promptly available to any person upon payment of fees covering direct costs of duplication, or a statutory fee if applicable. Upon request, an exact copy shall be provided unless impracticable to do so."

Chargeable Processing Fees: Proposed Rule 10.500 (b) (4) (B-D) state:

(B) When records are requested for other than commercial use, a judicial branch entity may impose a reasonable standard charge for document search and review, provided that no charge may be imposed for the first two hours of search and review time. 
(C) When records are requested for commercial use, a judicial branch entity may impose a reasonable standard charge for document search, review, and duplication.
 (D) A superior court must provide a copy of the certified judicial administrative record if the judicial administrative record requested has been certified by the superior court.

(D) addresses certification requirements unique to the judicial branch. (B) and (C) are fundamental departures from the CPRA model in their requirements for payment for search and review (not just copying) and a higher fee for not only search and review but also copying if the records are requested for commercial use.  After Californians Aware, journalism and court labor groups and legislative representatives universally and strongly objected to an initial proposal to charge for search and review, the two-hour free pass was added to this version (for non-commercial requesters, that is), but this approach is likely to continue to be controversial.

Our overview comments appeared here last week.  The following shows the actual language of the first rule, followed by any comments on meaning or effect. Any links or italics in the text of the rules are inserted for explanatory purposes and are not part of the rule.

(f) Exemptions

 (1) Preliminary writings, including drafts, notes, working papers, and inter–judicial branch entity or intra–judicial branch entity memoranda, if the public interest in withholding those records clearly outweighs the public interest in disclosure; 

The comparable exemption in the California Public Records Act (Government Code Section 6254 (a)) is decidedly tighter, applicable only to "(p)reliminary drafts, notes, or interagency or intra-agency memoranda that are not retained by the public agency in the ordinary course of business, if the public interest in withholding those records clearly outweighs the public interest in disclosure." The single appellate decision interpreting this section concluded: "The second condition of section 6254, subdivision (a) is that the records be documents which are not retained by the Department in the ordinary course of business. If preliminary materials are not customarily discarded or have not in fact been discarded as is customary they must be disclosed. (§ 6254, subd. (a).) Thus, the agency controls the availability of a forum for expression of controversial views on policy matters by its policy and custom concerning retention of preliminary materials."  Citizens for A Better Environment v. Department of Food and Agriculture, 171 Cal. App. 3d 704, 714 (1985). Thus under this rule, every "preliminary" document in the adminiistrative files of the judicial branch would be subject to withholding in the public interest, as decided by the courts.

 (2) Records pertaining to pending or anticipated claims or litigation to which a judicial branch entity or judicial branch personnel is a party, until the pending litigation or claim has been finally adjudicated or otherwise resolved;

The comparable exemption in the California Public Records Act (Government Code Section 6254 (b)) applies to "(r)ecords pertaining to pending litigation to which the public agency is a party, or to claims . . ., until the pending litigation or claim has been finally adjudicated or otherwise settled." Although there is no "or anticipated" language in this provision, courts have read that qualifier into it, meaning that documents created by an agency in the reasonable expectation of litigation are covered, but not those created in the ordinary course of business that later become relevant to a lawsuit or the threat of one: "a document is protected from disclosure only if it was specifically prepared for use in litigation." City of Hemet v. Superior Court (Press-Enterprise Co.) 37 Cal.App.4th 1411, 1420 (1995).  

The comparable exemption in the California Public Records Act (Government Code Section 6254 (c)) applies simply to "(p)ersonnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy." This rule's emphasis on withholding home contact information for judges is understandable, as well as all employees' Social Security numbers.  A number of statutes already make such information confidential and therefore exempt from disclosure under the CPRA.  The drafters of this rule believe that work contact information for those involved in the adjudication of cases also needs confidentiality to prevent improper ex parte contacts by the parties. That is a consideration not arising under the California Public Records Act, but whether it should be addressed under the rubric of "personal privacy" is doubtful. A better place would be under (6) below.

 (4) Test questions, scoring keys, and other examination data used to develop, administer, and score examinations for employment, certification, or qualification;   

The comparable exemption in the California Public Records Act (Government Code Section 6254 (g)) applies to "(t)est questions, scoring keys, and other examination data used to administer a licensing examination, examination for employment, or academic examination . . ."

(5) Records the disclosure of which is exempted or prohibited under state or federal law, including provisions of the California Evidence Code relating to privilege, or by court order in any court proceeding;

 The comparable exemption in the California Public Records Act (Government Code Section 6254 (k)) applies to "(r)ecords, the disclosure of which is exempted or prohibited pursuant to federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege." The italicised phrase in the proposed exemption is unclear unless it purports to make court information summarily exempt from disclosure by court order. That effect would obviously undermine these rules entirely by giving any court a veto over release of its own records, with no need to justify the secrecy.

(6) Records the disclosure of which would compromise the security of a judicial branch entity or the safety of judicial branch personnel;

There is no comparable exemption in the California Public Records Act, but an opinion of the Attorney General illustrates how similar security information—in that case, jail plans and specifications—might be withheld under a balancing of interests pursuant to Government Code Section 6255. Opinion No. 90-303 (1990)

 There is no comparable exemption in the California Public Records Act.  Complaints against judges are processed and adjudicated by the Commission on Judicial Performance, which is not subject to these proposed rules and which is required to keep raw complaints confidential until formal proceedings commence. California Constitution Article 18, section (j). As for "subordinate judicial officers" generally—not dealt with by the Commission—courts interpreting the CPRA have held that ordinary (non law enforcement) employees have no privacy rights preventing the release of complaints against them that appear "well founded," including but not limited to those that have prompted a confirming investigation and discipline. American Federation of State, County and Municipal Employees v. Regents of the University of California, 80 Cal.App.3d 913 (1978), Bakersfield City School District v. Superior Court (Bakersfield Californian), 118 Cal.App.4th 1041 (2004)

(8) The contents of real estate appraisals or engineering or feasibility estimates and evaluations made for or by the judicial branch entity relative to the acquisition of property or to prospective public supply and construction contracts, until all of the property has been acquired or the relevant contracts have been executed. This provision does not affect the law of eminent domain; 

The comparable exemption in the California Public Records Act (Government Code Section 6254 (h)) applies to "the contents of real estate appraisals or engineering or feasibility estimates and evaluations made for or by the state or local agency relative to the acquisition of property, or to prospective public supply and construction contracts, until all of the property has been acquired or all of the contract agreement obtained. However, the law of eminent domain shall not be affected by this provision." Use of the term "executed" in the proposed rule suggests a longer delay, namely, no disclosure until the contract has been performed, rather than until the contract has been formed—the "agreement obtained."  The reason for this difference is unclear.

 (9) Records related to activities governed by Government Code sections 71600 et seq. and 71800 et seq. that reveal deliberative processes, impressions, evaluations, opinions, recommendations, meeting minutes, research, work products, theories, or strategy or that provide instruction, advice, or training to employees who are not represented by employee organizations under those sections. Nothing in this subdivision limits the disclosure duties of a judicial branch entity with respect to any other records relating to the activities governed by the employee relations acts referred to in this subdivision; 

This provision exempts the paperwork created in the course of negotiations with employee bargaining units. The comparable exemption in the California Public Records Act (Government Code Section 6254 (p)) applies to "records of state agencies related to activities governed by Chapter 10.3 (commencing with Section 3512), Chapter 10.5 (commencing with Section 3525), and Chapter 12 (commencing with Section 3560) ofDivision 4, that reveal a state agency's deliberative processes, impressions, evaluations, opinions, recommendations, meeting minutes, research, work products, theories, or strategy, or that provide instruction, advice, or training to employees who do not have full collective bargaining and representation rights under these chapters. disclosure duties of a state agency with respect to any other records relating to the activities governed by the employee relations acts referred to in this subdivision."

(B) “Privileged information” refers to material that falls within recognized constitutional, statutory, or common law privileges;

(C) “Confidential information” means: 

(i) For information involuntarily submitted to the judicial branch entity, information the disclosure of which would (1) impair the judicial branch entity’s ability to obtain necessary information in the future or (2) cause substantial harm to the competitive position of the person from whom the information was obtained; 

(ii) For information voluntarily submitted to the judicial branch entity, the kind of information that would customarily not be released to the public by the person from whom it was obtained;

There is no express general exemption for either trade secrets or proprietary information in the California Public Records Act.  Government Code Section 6254 (k) exempts information that is privileged under the Evidence Code, which has the following sections:

1060. If he or his agent or employee claims the privilege, the owner of a trade secret has a privilege to refuse to disclose the secret, and to prevent another from disclosing it, if the allowance of the privilege will not tend to conceal fraud or otherwise work injustice.

1061.  (a) For purposes of this section . . .
     (1) "Trade secret" means "trade secret," as defined in subdivision (d) of Section 3426.1 of the Civil Code, or paragraph (9) of subdivision (a) of Section 499c of the Penal Code.

The Civil and Penal Code provisions identically define “trade secret” as information, including a formula, pattern, compilation, program, device, method, technique, or process, that: "derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy."  Thus the proposed rule embodies a looser definition of what is a trade secret, lacking the italicized criterion.  As for "confidential information," this category refers to information that is not privileged, but whose release would somehow make it harder for the judicial entity to get similar information in the future (despite its being involuntariy submitted, i.e. compelled by law) or would cause the commercial submitter "substantial harm," or even information that the voluntary submitter would not normally release to the public, i.e. virtually any information not issued in a press release.  The vague and overbroad categories of "confidential information" should not be necessary as an exemption in this rule.  There is a legal privilege—again, acting as a CPRA exemption under Government Code Section 6254 (k)—in Evidence Code Section 1040, which states:

(a) As used in this section, "official information" means information acquired in confidence by a public employee in the course of his or her duty and not open, or officially disclosed, to the public prior to the time the claim of privilege is made.
(b) A public entity has a privilege to refuse to disclose official information, and to prevent another from disclosing official information, if the privilege is claimed by a person authorized by the public entity to do so and:

(1) Disclosure is forbidden by an act of the Congress of the United States or a statute of this state; or

(2) Disclosure of the information is against the public interest because there is a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice; but no privilege may be claimed under this paragraph if any person authorized to do so has consented that the information be disclosed in the proceeding.  In determining whether disclosure of the information is against the public interest, the interest of the public entity as a party in the outcome of the proceeding may not be considered.

This privilege for official information acquired in confidence has been repeatedly interpreted by the courts as requiring essentially the same balancing of interests as under the CPRA's Government Code Section 6255. In other words, what the proposed rule means by "confidential information" that is per se protected could be withheld under the official information privilege only if the court concluded that the public interest in nondisclosure outweighed the public interest in disclosure. It is not clear why the judicial branch needs such a level of secrecy—one that finds no parallel in the CPRA.

 (11) Records the disclosure of which would expose a judicial branch entity’s or judicial branch personnel’s decision-making process so as to discourage candid discussion within the entity or the judicial branch and thereby undermine the entity’s ability to perform its function, unless the public interest served by disclosure of the record clearly outweighs the public’s interest in withholding the record; or

 (12) If on the facts of the specific request for records the public interest served by withholding the record clearly outweighs the public interest served by disclosure of the record. 

These two exemptions find their parallel in court interpretations of the CPRA's Government Code Section 6255, which states: "The agency shall justify withholding any record by demonstrating that the record in question is exempt under express provisions of this chapter or that on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record." In other words, even where an agency cannot point to any exemption from disclosure in the CPRA, it may withhold certain information if, given the realities of the situation, the public interest in not releasing the information "clearly" overrides the public interest in having it be known.  This "catchall" or wild card exemption, as invoked in reported appellate cases to date, has been successful in justifying withholding of information seven times, partially successful twice, and unsuccessful 14 times.  In one of the successful instances, the California Supreme Court held that the public's interest in effective decision-making by government officials outweighed its interest in understanding the influences brought to bear on such decision-making.  In particular, the court concluded that a disclosure of who had met with a governor (as reflected in his appointment calendar) over a five-year period would endanger the quality of the governor's decisions by deterring people from seeking to meet with him in the future and thus reducing the quantity or quality, or both, of the information and advice he relied on.  Preserving the governor's rich mix of advisory input, in short, was more important than public awareness of where that input came from.  This decision, in Times Mirror Co. v. Superior Court (State of California), 53 Cal.3d 1325 (1991), has been followed in three lower appellate cases since, and its frequently-called deliberative process "privilege"—not one recognized in the Evidence Code—is increasingly seized on by public agencies for withholding all kinds of communications and other documents from disclosure under the CPRA—down to memos and e-mails among city staff members.  It is safe to say that if Section 6255 is a wild card for secrecy in the CPRA, the deliberative process rationale is the wildest play of that card—so far, a sure trump.  These rules could get the benefit of its effects under (12) above alone.  Why (11) is necessary as a codification of a particular case (Times Mirror Co.) decided under the rule in (12) is unclear, unless to give the courts the most express and emphatic authority for avoiding public scrutiny of the sources, influences and factors contributing to decisions on how the judicial branch is run.

 (2) A judicial branch entity is not required to duplicate records under this rule in violation of any copyright. 

(3) The status of a writing as a judicial administrative record is not affected because the writing is stored in a computer.

The comparable exemption in the California Public Records Act (Government Code Section 6254.9) states:

(a) Computer software developed by a state or local agency is not itself a public record under this chapter. The agency may sell, lease, or license the software for commercial or noncommercial use.

(b) As used in this section, "computer software" includes computer mapping systems, computer programs, and computer graphics systems.

(c) This section shall not be construed to create an implied warranty on the part of the State of California or any local agency for errors, omissions, or other defects in any computer software as provided pursuant to this section.

(d) Nothing in this section is intended to affect the public record status of information merely because it is stored in a required by this chapter.

(e) Nothing in this section is intended to limit any copyright protections.

It is not clear why the italicized provisions are not included in the proposed rule.

The comparable exemption in the California Public Records Act (Government Code Section 6254.9) states, in pertinent part:

Notwithstanding any other provisions of the law, whenever a state or local agency discloses a public record which is otherwise exempt from this chapter, to any member of the public, this disclosure shall constitute a waiver of the exemptions specified in Sections 6254, 6254.7, or other similar provisions of law. Forpurposes of this section, "agency" includes a member, agent, officer, or employee of the agency acting within the scope of his or her membership, agency, office, or employment. This section, however, shall not apply to disclosures:

(a) Made pursuant to the Information Practices Act (commencing with Section 1798 of the Civil Code) or discovery proceedings.
(b) Made through other legal proceedings or as otherwise required by law.
(c) Within the scope of disclosure of a statute which limits disclosure of specified writings to certain purposes.
(d) Not required by law, and prohibited by formal action of an elected legislative body of the local agency which retains the writings.
(e) Made to any governmental agency which agrees to treat the disclosed material as confidential. Only persons authorized in writing by the person in charge of the agency shall be permitted to obtain the information. Any information obtained by the agency shall only be used for purposes which are consistent with existing law.

 (i) Availability in electronic format 
 (1) A judicial branch entity, on request, must make a copy of a judicial administrative record that is not exempt from disclosure under this rule available in an electronic format, provided that:
 (A) No law prohibits disclosure;
 (B) The record already exists in the requested electronic format; and
 (C) The disclosure does not jeopardize or compromise the security or integrity of the original record or of any proprietary software in which it is maintained.

 (2) If in order to comply with (i)(1) the judicial branch entity would be required to produce a copy of the record and the record is produced only at otherwise regularly scheduled intervals, or if the judicial branch entity agrees to perform data compilation or extraction to produce a record in response to a request, the requester will bear the cost of producing a copy of the record, including the cost to construct a record and to produce a copy of the record.

The comparable California Public Records Act provision is Government Code Section 6253.9, which states:

(a) Unless otherwise prohibited by law, any agency that has information that constitutes an identifiable public record not exempt from disclosure pursuant to this chapter that is in an electronic format shall make that information available in an electronic format when requested by any person and, when applicable, shall comply with the following:

(1) The agency shall make the information available in any regularly scheduled intervals. proprietary software in which it is maintained.

(2) Each agency shall provide a copy of an electronic record in the format requested if the requested format is one that has been used by the agency to create copies for its own use or for provision to other agencies. The cost of duplication shall be limited to the direct cost of producing a copy of a record in an electronic format.

(b) Notwithstanding paragraph (2) of subdivision (a), the requester shall bear the cost of producing a copy of the record, including the cost to construct a record, and the cost of programming and computer services necessary to produce a copy of the record when either of the following applies:

(1) In order to comply with the provisions of subdivision (a), the public agency would be required to produce a copy of an electronic record and the record is one that is produced only at otherwise regularly scheduled intervals.

(2) The request would require data compilation, extraction, or programming to produce the record.

(c) Nothing in this section shall be construed to require the public agency to reconstruct a record in an electronic format if the agency no longer has the record available in an electronic format.

(d) If the request is for information in other than electronic format, and the information also is in electronic format, the agency may inform the requester that the information is available in electronic format.

(e) Nothing in this section shall be construed to permit an agency to make information available only in an electronic format.

(f) Nothing in this section shall be construed to require the public agency to release an electronic record in the electronic form in which it is held by the agency if its release would jeopardize or compromise the security or integrity of the original record or of any any proprietary software in which it is maintained.

(g) Nothing in this section shall be construed to permit public access to records held by any agency to which access is otherwise restricted by statute.

Next segment: Records retention, access enforcement and conclusions.

Our overview comments appeared here last week.  The following shows the actual language of the first rule, followed by any comments on meaning or effect. Any links or italics in the text of the rules are inserted for explanatory purposes and are not part of the rule.

(3) Procedure for requesting records
A judicial branch entity must make available on its public Web site or otherwise publicize the procedure to be followed to request a copy of or to inspect a judicial administrative record. At a minimum, the procedure must include the address to which requests are to be addressed, to whom requests are to be directed, and the office hours of the judicial branch entity. 

There is no Internet guidance requirement in the California Public Records Act, which applies to executive branch and local government agencies but excludes the judicial branch. The only comparable CPRA rule, in Government Code Section 6253.4, applies to only a handful of state agencies and requires that they "establish written guidelines for accessibility of records. A copy of these guidelines shall be posted in a conspicuous public place at the offices of these bodies, and a copy of the guidelines shall be available upon request free of charge to any person requesting that body's records."  Two bills vetoed by Governor Schwarzenegger—AB 1393 of 2007 and AB 756 of 2009—would have required state websites to provide links, e-forms or other information for processing information requests.

 (4) Costs: duplication, search, and review 
 (A) A judicial branch entity, on request, must provide a copy of a judicial administrative record not exempt from disclosure if the record is of a nature permitting copying, subject to payment of the fee specified in this rule or other applicable statutory fee:
 (i) A judicial branch entity may impose a fee reasonably calculated to cover the judicial branch entity’s direct costs of producing a paper or hard copy of any record; 
 (ii) A judicial branch entity may impose a fee reasonably calculated to cover the judicial branch entity’s direct costs of creating a record or producing an electronic copy of a record as specified in subdivision (i); and  (iii) A judicial branch entity may require advance payment of any fee. 

So far, the cost rules closely parallel those in the CPRA, which states in Government Code Section 6253 (b): "Except with respect to public records exempt from disclosure by express provisions of law, each state or local agency, upon a request for a copy of records that reasonably describes an identifiable record or records, shall make the records promptly available to any person upon payment of fees covering direct costs of duplication, or a statutory fee if applicable. Upon request, an exact copy shall be provided unless impracticable to do so."

 (B) When records are requested for other than commercial use, a judicial branch entity may impose a reasonable standard charge for document search and review, provided that no charge may be imposed for the first two hours of search and review time. 
(C) When records are requested for commercial use, a judicial branch entity may impose a reasonable standard charge for document search, review, and duplication.
 (D) A superior court must provide a copy of the certified judicial administrative record if the judicial administrative record requested has been certified by the superior court.

(D) addresses certification requirements unique to the judicial branch. (B) and (C) are fundamental departures from the CPRA model in their requirements for payment for search and review (not just copying) and a higher fee for not only search and review but also copying if the records are requested for commercial use.  After Californians Aware, journalism and court labor groups and legislative representatives universally and strongly objected to an initial proposal to charge anything for search and review, the two-hour free pass was added to this version (for non-commercial requesters, that is), but this approach is likely to continue to be controversial.

(5) Inspection
A judicial branch entity must make judicial administrative records in its possession and not exempt from disclosure open to inspection at all times during the office hours of the judicial branch entity provided that the record is of a nature permitting inspection. 

While it's not clear what that "provided" clause means, the "at all times during the office hours" phrase reflects the CPRA standard.

 (6) Time for determination of disclosable records
A judicial branch entity, on a request that reasonably describes an identifiable record or records, must determine within 10 calendar days from receipt of the request whether the request, in whole or in part, seeks disclosable judicial administrative records in its possession and must promptly notify the requesting party of the determination and the reasons for the determination.  
 (7) Response
If a judicial branch entity determines that a request seeks disclosable judicial administrative records, the judicial branch entity must make the disclosable judicial administrative records available promptly. The judicial branch entity must include with the notice of the determination the estimated date and time when the records will be made available. If  the judicial branch entity determines that the request, in whole or in part, seeks nondisclosable judicial administrative records, it must convey its determination in writing, include a contact name and telephone number to which inquiries may be directed, and state the express provision of this rule justifying the withholding of the records not disclosed.  
 (8) Extension of time for determination of disclosable records
In unusual circumstances, to the extent reasonably necessary to the proper processing of the particular request, a judicial branch entity may extend the time limit prescribed for its determination under subdivision  (e)(6) by no more than 14 calendar days by written notice to the requesting party, stating the reasons for the extension and the date on which the judicial branch entity expects to make a determination. As used in this section, “unusual circumstances” means the following:
 (A) The need to search for and collect the requested records from multiple locations or facilities that are separate from the office processing the request;
 (B) The need to search for, collect, and appropriately examine a voluminous amount of records that are included in a single request; or 
 (C) The need for consultation, which must be conducted with all practicable speed, with another judicial branch entity or other governmental agency having substantial subject matter interest in the determination of the request, or among two or more components of the judicial branch entity having substantial subject matter interest in the determination of the request. or among two or more components of the judicial branch entity having substantial subject matter interest in the determination of the request. 

The comparable CPRA provisions, in Government Code Section 6253 (b) and (c), state: 

(b) Except with respect to public records exempt from disclosure by express provisions of law, each state or local agency, upon a request for a copy of records that reasonably describes an identifiable record or records, shall make the records promptly available to any person upon payment of fees covering direct costs of duplication, or a statutory fee if applicable. Upon request, an exact copy shall be provided unless impracticable to do so.
(c) Each agency, upon a request for a copy of records, shall, within 10 days from receipt of the request, determine whether the request, in whole or in part, seeks copies of disclosable public records in the possession of the agency and shall promptly notify the person making the request of the determination and the reasons therefor. In unusual circumstances, the time limit prescribed in this section may be extended by written notice by the head of the agency or his or her designee to the person making the request, setting forth the reasons for the extension and the date on which a determination is expected to be dispatched. No notice shall specify a date that would result in an extension for more than 14 days. When the agency dispatches the determination, and if the agency determines that the request seeks disclosable public records, the agency shall state the estimated date and time when the records will be made available. As used in this section, "unusual circumstances" means the following, but only to the extent reasonably necessary to the proper processing of the particular request.

(1) The need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request.

(2) The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records that are demanded in a single request.

(3) The need for consultation, which shall be conducted with all practicable speed, with another agency having substantial interest in the determination of the request or among two or more components of the agency having substantial subject matter interest therein.

(4) The need to compile data, to write programming language or a computer program, or to construct a computer report to extract data.

(d) Nothing in this chapter shall be construed to permit an agency to delay or obstruct the inspection or copying of public records. The notification of denial of any request for records required by Section 6255 shall set forth the names and titles or positions of each person responsible for the denial.

 (9) Reasonable efforts
 (A) On receipt of a request to inspect or obtain a copy of a judicial administrative record, a judicial branch entity, in order to assist the requester in making a focused and effective request that reasonably describes an identifiable judicial administrative record,  must do all of the following to the extent reasonable under the circumstances:
 (i) Assist the requester to identify records and information responsive to the request or to the purpose of the request, if stated;  
 (ii) Describe the information technology and physical location in which the records exist; and
 (iii) Provide suggestions for overcoming any practical basis for denying inspection or copying of the records or information sought.
 (B) The requirements of (9)(A) will be deemed to have been satisfied if the judicial branch entity is unable to identify the requested information after making a reasonable effort to elicit additional clarifying information from the requester that will help identify the record or records.  
 (C) This subdivision (e)(9) does not apply to a request for judicial administrative records if the judicial branch entity makes the requested records available or determines that the requested records are exempt from disclosure under this rule.  

(10) No obstruction or delay
Nothing in this rule may be construed to permit a judicial branch entity to delay or obstruct the inspection or copying of judicial administrative records that are not exempt from disclosure.  

The comparable CPRA provision, in Government Code Section 6253.1, states:

(a) When a member of the public requests to inspect a public record or obtain a copy of a public record, the public agency, in order to assist the member of the public make a focused and effective request that reasonably describes an identifiable record or records, shall do all of the following, to the extent reasonable under the circumstances:

(1) Assist the member of the public to identify records and information that are responsive to the request or to the purpose of the request, if stated.

(2) Describe the information technology and physical location in which the records exist.

(3) Provide suggestions for overcoming any practical basis for denying access to the records or information sought.

(b) The requirements of paragraph (1) of subdivision (a) shall be deemed to have been satisfied if the public agency is unable to identify the requested information after making a reasonable effort to elicit additional clarifying information from the requester that will help identify the record or records.

(c) The requirements of subdivision (a) are in addition to any action required of a public agency by Section 6253.

(d) This section shall not apply to a request for public records if any of the following applies:

(1) The public agency makes available the requested records pursuant to Section 6253.

(2) The public agency determines that the request should be denied and bases that determination solely on an exemption listed in Section 6254.

(3) The public agency makes available an index of its records.

(10)'s "no obstruction or delay" rule is taken from the CPRA's Government Code Section 6253 (d).

(11) Greater access permitted

Except as otherwise prohibited by law, a judicial branch entity may adopt requirements for itself that allow for faster, more efficient, or greater access to judicial administrative records than prescribed by the requirements of this rule.

The comparable CPRA provision, in Government Code Section 6253 (e), states: "Except as otherwise prohibited by law, a state or local agency may adopt requirements for itself that allow for faster, more efficient, or greater access to records than prescribed by the minimum standards set forth in this chapter." It is this rule that authorizes state and local agencies to adopt their own "sunshine ordinances" that accommodate public access to a greater degree than the minimum standards of state law.

 (12) Control of records
A judicial branch entity must not sell, exchange, furnish, or otherwise provide a judicial administrative record subject to disclosure under this rule to a private entity in a manner that prevents a judicial branch entity from providing the record directly under this rule. A judicial branch entity must not allow a private entity to control the disclosure of information that is otherwise subject to disclosure under this rule. 

The source of the first sentence is the CPRA provision, in Government Code Section 6270 (a), which states: " Notwithstanding any other provision of law, no state or local agency shall sell, exchange, furnish, or otherwise provide a public record subject to disclosure pursuant to this chapter to a private entity in a manner that prevents a state or local agency fromproviding the record directly pursuant to this chapter." The source of the second sentence is Government Code Section 6253.3, which states: "A state or local agency may not allow another party to control the disclosure of information that is otherwise subject to disclosure pursuant to this chapter."

Next segment: Exemptions from disclosure.

The emphasized language echoes the rule added to the California Constitution by Proposition 59, the open government amendment, to the effect that statutes and court rules that declare a public right of access to government meetings and records must be given a broad interpretation, and those limiting access must be interpreted narrowly.

 (1) This rule applies to public access to nondeliberative and nonadjudicative court records, budget, and management information relating to the administration of the courts.

 (2) This rule does not modify existing law regarding public access to adjudicative records.

So all the case law (and some statutes) concerned with open or closed courtroom doors, sealed trial records etc. remains the same.

This is probably a placeholder looking to potential future statutes or rules that might purport to give judicial branch unions access to information not available to the general public.  There are no such laws now, and if there were they would be of dubious validity.

 (4) This rule does not affect the rights of litigants, including parties to administrative proceedings, under the laws of discovery of this state, nor limit or impair any rights of discovery in a criminal case. 

If you are suing, being sued or being prosecuted, your right to information from the opposing party will be unaffected by these rules.

(c) Definitions

This undefined term probably refers, for example, to either notes made by a single judge in his or her private consideration of a motion, a judgment or sentence, or some other matter open to his or her discretion, or to the record of any discussion by a multi-justice review panel such as an intermediate appellate court or the California Supreme Court.

(2) “Judicial administrative record” means any writing containing information relating to the conduct of the people’s business that is prepared, owned, used, or retained by a judicial branch entity regardless of the writing’s physical form or characteristics, except an adjudicative record.  

In other words, any information about how the courts are run as opposed to the cases they decide.

(3) “Judicial branch entity” means the Supreme Court, each Court of Appeal, each superior court, the Judicial Council, and the Administrative Office of the Courts.

Notably not included here are three other judicial branch entities: the State Bar of California, the Commission on Judicial Appointments and the Commission on Judicial Performance. 

 (6) “Writing” means any handwriting, typewriting, printing, photographing, photocopying, electronic mail, fax, and every other means of recording on any tangible thing any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combination thereof, regardless of the manner in which the record has been stored.

The inclusive “writing” definition is taken verbatim from the California Public Records Act (Government Code Section 6252 (g)), which applies to all state and local government agencies other than the Legislature and the judicial branch.  The CPRA serves as the model—or at least point of departure—for most of these rules.

Unless otherwise indicated, the terms used in this rule have the same meaning as under the Legislative Open Records Act (beginning with Gov. Code, § 9070) and the California Public Records Act (beginning with Gov.  Code, § 6250) and must be interpreted consistently with the interpretation applied to the terms under those acts. This rule does not require the disclosure of a record if the type of record would not be subject to disclosure under those acts.

This provision probably adds more confusion than clarity.  Ordinarily statutes and court decisions deal with particular records rather than “types” of records.  Does this mean, for example, that because the Legislative Open Records Act flatly exempts records of fuel or lubricant purchases by lawmakers (to keep the public from learning where state cars or cars using state credit cards are driven) will protect judges as well, even though these rules do not contain such an exemption?

(e) Public access

 (1) Access

The emphasized sentence is the conventional rule applicable to paper records under the California Public Records Act.  The sentence after it, applicable to electronic databases, is comparable to the CPRA rule in Government Code Section 6253.9, which among other things provides that “the requester shall bear the cost of producing a copy of the record, including the cost to construct a record, and the cost of programming and computer services necessary to produce a copy of the record when . . . (t)he request would require data compilation, extraction, or programming to produce the record."

If a judicial administrative record contains information that is exempt from disclosure and the exempt portions are reasonably segregable, a judicial branch entity must allow inspection and copying of the record after deletion of the portions that are exempt from disclosure. A judicial branch entity is not required to allow inspection or copying of the portion of a writing that is a judicial administrative record unless that portion is reasonably segregable from the portion that constitutes an adjudicative record.  

These provisions are comparable to the CPRA rule in Government Code Section 6253 (a): “Any reasonably segregable portion of a record shall be available for inspection by any person requesting the record after deletion of the portions that are exempted by law.”

Judicial administrative records subject to inspection and copying unless exempt from disclosure under subdivision (f) include, but are not limited to, the following: 

The California Supreme Court has ruled that the actual compensation of California executive branch and local government employees is, under the CPRA, public information.  If (C) here means that identifiable court employees’ compensation and raises or bonuses are to be confidential, this would be the first major departure from CPRA policy and a likely source of controversy.

(D) Copies of executed contracts with outside vendors and payment information and policies concerning goods and services provided by outside vendors without an executed contract;

“Executed” would normally mean fully performed.  Is the intent here to release contracts only after performance, and not proposed contracts or those in mid-course of performance?

(E) Final audit reports; and

(F) Employment contracts between judicial branch entities and their employees.

Good Bills Vetoed: SB 218, SB 219, AB 756

Higher Education Funding Support Transparency

SB 218 by Senator Leland Yee (D-San Francisco), which overwhelmingly passed the Legislature, would have updated the California Public Records Act (CPRA) to include nonprofit "auxiliary organizations" that perform government functions at the University of California (UC), the California State University (CSU), and the California Community Colleges.  

The Governor's veto message stated:

Subjecting the altruistic activities of private donors and volunteers to the CPRA will have a chilling effect on their support and service, if they believe their personal privacy could be compromised.  Hindering private giving of time and resources becomes a detriment to our higher education institutions. Enacting this bill would result in a loss of private donations and volunteer activities supporting California public institutions of higher education, at a time when the University of California, California State University, and Community College campuses are facing significant reductions in state funding during this difficult fiscal situation.

This statement can only be viewed as a deliberate misrepresentation of the bill, which allowed for the withholding of the names of charitable contributors who asked for anonymity.

“The Governor has failed to keep his promise of bringing greater sunshine to government agencies,” said Yee.  “While he talks a lot about government waste, he vetoes the only bills to actually provide public oversight and accountability.  His vetoes are certain to allow further scandal at these public institutions and will only result in fewer philanthropic dollars at a time when they are needed more than ever.”

The public colleges and universitites have often evaded the public records act by shifting some responsibilities to foundations and other auxiliary organizations operating on campuses, Yee said.  He pointed to several recent examples demonstrated the need for increased public oversight and accountability provided by SB 218:

• At Sonoma State, a $1.25 million loan issued to a former foundation board member two days after he resigned.  He is now defaulting on that loan, which leaves less money in the foundation’s endowment for scholarships and other more important causes.
  
• At Fresno State, a no-bid managing contract was given to a foundation member for a theatre complex he held financial interest in.  A recent Superior court ruling found that, despite CSU’s claims to the contrary, the foundation board member must comply with the state’s conflict of interest laws.  
  
• At San Francisco City College, a campus executive has been indicted for using money from the San Francisco City College Foundation for personal and political purposes.
  
• The latest example, as reported in the online community publication The Sacramento Press and verified by CSU Sacramento documents, indicates that University Enterprises, Inc., an auxiliary at Sacramento State, purchased a commercial building in 2007 just as the economy began to head towards a recession.  The building has only one tenant, which prompted Sacramento State University and the CSU Chancellor’s office to give $6.3 million from their general fund to offset the lost revenues from a lack of tenants.  These funding commitments were made at the same time the CSU has been forced to cap student enrollment, raise student fees, and impose harmful furloughs on faculty and staff. 
  

Additionally, while arguing in opposition to SB 218, the CSU has made repeated claims that campus auxiliary organizations are “self-supporting” and “do not rely on general fund dollars for support.”  “With 87 foundations and auxiliaries operating on 23 CSU campuses, the SSU and FSU scandals may be just the tip of the iceberg,” said Yee.  “Taxpayers and students deserve to know how their public universities are run.”

According to the CSU Chancellor’s Office, 20 percent of its $6.7 billion budget, or $1.34 billion, is held in auxiliaries and foundations, which is out of public view.

In 2001, the Fresno Bee was denied information, specifically concerning the identity of individuals and companies that purchased luxury suites at the Save Mart Center arena at Fresno State.  The denial resulted in CSU v. Superior Court (McClatchy Company), in which the Court opined that although it recognized university auxiliaries ought to be covered by the CPRA and that its ruling was counter to the obvious legislative intent of the CPRA, the rewriting of the statute was a legislative responsibility.

Protection for University of California Whistleblowers

In July 2008, the California Supreme Court ruled (Miklosy v. the Regents of the University of California that UC employees who are retaliated against because they report wrongdoing cannot sue for damages under the state’s Whistleblower Protection Act, so long as the university itself reviews the complaints in a timely fashion. 

The ruling uncovered an oversight made by the Legislature when the Act was amended in 2001, which provided legal standing for all other state employees to seek damages.“This is the classic case of the fox guarding the hen house,” said Senator Leland Yee (D-San Francisco), whose SB 219 would have supplied the whistleblower protection found wanting in the Miklosy decision. 

“UC executives should not be judge and jury on whether or not they are liable for monetary claims.  This was not the intent of California’s whistleblower law. Unfortunately, the Governor has sent the wrong message to those who witness wrongdoing at UC,” said Yee. “Without legal protections, workers are certain to unfairly face retaliation for doing the right thing and many others will just stay silent.  

In vetoing SB 219 the Governor stated:

I strongly support correcting the current problem with existing law concerning the availability of judicial review for employees of the University of California that file claims of retaliation against the University of California for violations of the Whistleblower Protection Act.  Unfortunately, rather than extending the same protections as provided for California State University employees and other state employees to employees of the University of California, this measure, as drafted, could discourage employees of the University of California from exhausting their administrative remedies before filing claims in the superior court.

What "discouragement" the Governor refers to is not clear.  The relevant provision in the bill states:

An action for damages shall be available to the injured party only if the injured party has first filed a complaint with the university (retaliation complaint) officer and the university has either reached a decision regarding the complaint, or failed, within the time limits established by the regents, to reach a decision regarding the complaint. Nothing in this section is intended to prohibit the injured party from seeking a remedy if the university has not satisfactorily addressed the complaint within 18 months.

In other words, the employee could go to court for damages only if he or she had filed a retaliation complaint through the university's administrative process and the university had ruled against the complaint or sat on it without action for a year and a half.

Yee said the Governor had let down not only UC workers, but all California taxpayers, Yee said. ”In the Miklosy decision, three of the seven judges urged the Legislature to consider changes to the law, as the current statute undermines the purpose of the Act.

“The court’s reading of the Act, making the University the judge of its own civil liability and leaving its employees vulnerable to retaliation for reporting abuses, thwarts the demonstrated legislative intent to protect those employees and thereby encourage candid reporting,” wrote Justice Kathryn Mickle Werdegar, joined by Chief Justice Ronald George and Justice Carlos Moreno.  “If the same government organization that has tried to silence the reporting employee also sits in final judgment of the employee’s retaliation claim, the law’s protection against retaliation is illusory.”

The Miklosy decision dealt with the plight of two former scientists at UC’s Lawrence Livermore National Laboratory, who repeatedly told their supervisors about equipment problems and poorly trained operators of a project designed to determine the safety and reliability of the nation’s nuclear weapons stockpile.  One of the scientists, Leo Miklosy, was fired in February 2003 and the other, Luciana Messina, resigned a few days later after overhearing a supervisor say she would also be fired.

Internet Posting of State Service, Consulting Contract Data

AB 756 by Assemblyman Mike Eng (D-Monterey Park), would have required most state agencies to provide a link on their websites to a centrally located and accessible state-run website that included a list of the personal services and consulting services contracts entered into by the agency. The bill would have required the listings on the site to include the following information:

• The name and license, registration, certification, or identification number of each contractor, as well as whether the contractor is a for profit, nonprofit, small business, microbusiness, disabled veteran, or nonprofit veteran's service agency.
• The statutory basis for the authorization of each contract, including, if relevant, any applicable condition permitting personal services contracts provided by Section 19130 of the Government Code.
• The duration of each contract.
• The number of amendments to each contract and the number of renewals of each contract, where applicable.
• The reason why the low bid was not accepted, if applicable.
• The reason for noncompetitive bidding, if applicable.
• The total amount of the contract allocation over the duration of the contract, including all known amendments to the contract, the total amount paid by the state agency during the most recently completed fiscal year, and the number, cost, bill rate, and staffing levels associated with each type of contract employee retained during the most recently completed fiscal year.

The bill would have required, on and after January 1, 2012, a summary of a contract to be initially posted within 15 working days of being signed by all parties.

No veto message was available at the time of this post.

Good Bills Signed: SB 312, SB 320, SB 359

Live Video/Audio of State Board Meetings

SB 312 by Senator Gloria Romero (D-Los Angeles) will require the State Board of Education and the State Allocation Board—the latter charged among other things with determining how bond funds are allocated for public school construction and modernization projects—to provide for live video and audio transmission of all meetings and hearings that are open to the public through a technology that is accessible to as large a segment of the public as possible. The technologies to be used would include, but not be limited to, cable, satellite, over-the-air, or any other type of transmission that can be accessed through a television, and webcast. These boards would be required to ensure that any webcast transmission implemented pursuant to these provisions be transmitted over and accessed through the K-12 High-Speed Network.

Libel Tourism

SB 320 by Sen. Ellen Corbett (D-San Leandro), the anti-Libel Tourism Act, will protect California writers from frivolous lawsuits filed in foreign courts. 

CPRA Exemptions List Update

SB 359 by Sen. Gloria Romero (D-Los Angeles) updates the sections of the California Public Records Act that, in alphabetical order, describe the records that may be exempt under the law.  

Bad Bill Signed

Paparazzi Publication Liability

AB 524 by Assembly Speaker Karen Bass (D-Los Angeles) will amend the anti-Paparazzi law to allow media disseminators to be sued for the mere publication of an image captured by a third party in violation of the law.

Top 10 Points to Bear in Mind about the Proposed Rule

1. Rules of Court are adopted by the California Judicial Council to govern the judicial branch in terms of policies, requirements, standards and procedures to be followed by the trial and appellate courts and the parties trying cases before them, and assigning roles and relationships among the court domains and the Administrative Office of the Courts (AOC) in San Francisco.

2. Proposed Rule 10.500 provides access to information about, and held by, each of the trial and appellate courts and their particular administrative functions as well as information concerning and held by the AOC.  

3. Proposed Rule 10.500 does not govern access to records created or acquired by the courts in the trials or appeals of particular cases.  That access is determined by the federal and state constitutions, statutes enacted by the Legislature, and common law decisions, which by and large do not address access to court administrative records.

4. Proposed Rule 10.500 fills a large gap left by the California Public Records Act, which from its enactment 41 years ago has expressly exempted all judicial branch agencies from its coverage.

5. Proposed Rules 10.500 and 10.501 (records retention) are the result of pressure by organized court employees for financial data relevant to labor-management bargaining.  The Rule will replace the current Rule 10.802, which provides more narrowly for "maintenance of and public access to budget and management information" that could be relevant to bargaining.  That rule was adopted in response to a legislative mandate several years ago.

6. Proposed Rules 10.500 and 10.501 are not the result of media pressure.  Although Californians Aware, the California Newspaper Publishers Association and the First Amendment Coalition (along with legislative staff representatives and court union leaders) were last month given an early look at the original rough draft of the rules—as a kind of "focus group" to detect any major problems and objections—no press organization lobbied for the rules, or was even aware they were in the works until the legislative mandate for their adoption showed up in a court budget trailer bill in mid-summer.

7. The mainstream media have not spent much time seeking records of court administration.  A rare exception is a small rural newspaper which, despite the scarcity of affirmative law, sued its superior court twice for such information—and won both times.  Disclosure: Editor-publisher Tim Crews sits on the Californians Aware board of directors.

8. In large part, proposed Rule 10.500 borrows from the provisions of the California Public Records Act. In some cases, it even improves on those rules, as will be seen in the next four installments.

9. In other instances, the proposed rule provides less assurance of disclosure, or sets higher cost barriers, as will be seen.

10. The greatest unknown is whether or to what degree records showing the politics behind the policy-making will be accessible, or will be withheld based on any of several exemptions in the proposed rule.  For example, a reporter or taxpayer in Los Angeles County might submit a request to the Superior Court Executive Committee for minutes of its own meetings or those of any standing committees concerning the Sturgeon case (see Dan Walters column) or a legislative cure for the problem it raised.  As Walters put it,

One wonders how Los Angeles County's taxpayers would have reacted had they known that the Legislature was approving extra judicial payments while the county's supervisors are staring at a $200 million budget deficit and contemplating steep cuts in services, especially those to the poor and unemployed, in a county with a jobless rate of nearly 11 percent.

This point too will be examined here in coming days.

• SB 218 by Sen. Leland Yee (D-San Francisco) would bring the various nonprofit and auxiliary organizations of the University of California, California State University and Community Colleges under the California Public Records Act.  This groundbreaking bill was sponsored by CNPA.
• SB 219  by Sen. Yee would protect the rights of UC whistleblowers.
• SB 320 by Sen. Ellen Corbett (D-San Leandro) would enact the anti-Libel Tourism Act to protect California writers from frivolous lawsuits filed in foreign jurisdictions.  CNPA sponsored this bill.
• SB 359 by Sen. Gloria Romero (D-Los Angeles) would amend and update the sections of the California Public Records Act that, in alphabetical order, describe the records that may be exempt under the law.  CNPA sponsored this bill.
• CNPA is urging the veto of one bill – AB 524 by Assembly Speaker Karen Bass (D-Los Angeles) -- which would amend the anti-Paparazzi law to allow a new cause of action against publishers for the mere publication of an image captured by a third party in violation of the law.

Two bills sponsored or supported by CNPA – AB 1494 by Assemblyman Mike Eng (D-Monterey Park) and SB 786  (Yee) – were signed by Schwarzenegger earlier this year.  AB 1494 amends the serial meeting prohibition in the Bagley-Keene Open Meeting law governing state boards and commissions to be consistent with recent changes to the Ralph M. Brown Act.  SB 786 amends the California Anti-SLAPP Law to prohibit government agencies that successfully use the law from obtaining their attorneys fees and costs.

Another valuable bill that could be lost in the game of chicken is AB 756 by Assemblyman Eng, which would require most state agencies to provide a link on their websites to a centrally located and accessible state-run website that includes a list of the personal services and consulting services contracts, as defined, entered into by the agency. This bill would require the listings on the site to include specified information, and would require, on and after January 1, 2012, a summary of a contract to be initially posted within 15 working days of being signed by all parties.

"These suppressed public records," says a press statement by Grossman, "will likely establish that the Ethics Commission and its Executive Director, John St. Croix, had no justification for their summary dismissal of every violation by City officials, including the Mayor andthe City Attorney, of open government laws referred to the Ethics Commission by the SunshineOrdinance Task Force, a total of 14 such referrals over the past five years."

Under the City’s Sunshine Ordinance, the Task Force decides whether such a violation exists and, if so, orders the official involved to disclose the public record. If the official refuses to comply with thedisclosure Order, the Task Force refers the case to the Ethics Commission for enforcement. In more egregious cases, the Task Force also may find “official misconduct” by the official, a finding, which if enforced, could result in the official’s removal from office.

The lawsuit alleges that the Ethics Commission itself is violating the California Public Records Act and the City’s Sunshine Ordinance by illegally withholding the very public records that would shed any light on its non-action in every one of the 14 Task Force referred cases, including those in which the Task Force found “official misconduct.”

The Ethics Commission was created by a Charter Amendment passed by San Francisco voters in 1993 to enforce ethical standards of conduct in City Government. Similarly, in 1999 the voters overwhelmingly approved a strengthened Sunshine Ordinance to give this City the strongest mandate for transparency in government in the State.

Mr. Grossman stated when filing his lawsuit, "In the face of the strong open government message delivered to the City government by the voters, the notion that the Ethics Commission exists as a sort of black hole of open government enforcement is simply not acceptable. We have no idea how much secrecy in our City government has been fostered by the Ethics Commission’s refusal to make even one example of a defiant official.”

These fourteen cases are all of the referrals from 2004 to the present. In each there was neither enforcement nor an adequate justification for its absence. "These are not technical violations." Grossman said, "This is an assault on the public's right to know."

According to Kimo Crossman, a leader in open government advocacy and founder of the Sunshine Posse, "The Ethics Commission has been a major disgrace by failing to act on even one violation, including some of those violations that the Task Force found to be flagrant and willful. The result has been that the Sunshine Ordinance Task Force has been effectively handcuffed, although the Ethics Commission was created to make enforcement possible to promote ethical government."

Some current and former members of the Task Force have also expressed their concern that this unbroken pattern of unjustified dismissals has weakened the Task Force and the cause of open government in the City.

A hearing on Mr. Grossman’s Petition is scheduled for November 12. Under state law, these public records petitions are given expedited treatment and, if successful, the petitioner is awarded attorney's fees.