If the guide has an obvious limitation, it's that a good number of the issues it discusses are, at least for Californians, governed mainly by state laws, which it does not address. But in its design to support online reporting and commentary, the Digital Journalist's Legal Guide is an invaluable supplement to, for example, CalAware's Journalism Law in California.

Added to all these shortcomings is the fact that apparently none of these local programs—or even those at the state level—track and publicly report whether whistleblowers whose reports they have received are still in their jobs a year after having reporting, and if not, why not. For most employees trying to decide whether or not to blow the whistle, those data would presumably be the first to be consulted in making such a risky career decision.

Report-seeker Kevin Cummins, represented by attorney Dennis Winston of Los Angeles (President of Californians Aware) told 10News in San Diego last week that "It looked to me like they were going to let this thing sit on the shelf because there was some embarrassing information in it."

Winston added, "It's our government. It's the people of Encinitas' money. Yes, they voted for the City Council, but it doesn't mean the City Council gets to say, 'You people are just an irritant. Get out of the way and let me do my job.' It's the people's money and they are entitled to find out why [the] government makes spending decisions."

The city tried to convince Judge Timothy M. Casserly that the deliberative process privilege—used most often to  protect the relationship between a governor and his or her advisers and confidential contacts—was a policy basis for keeping initial draft consultant's reports from the public.  But Judge Casserly said the relationships were too different for such a shift in policy, and instead followed a California Supreme Count case allowing the public to scrutinize how a city agency arrived at a competitive bid recommendation before  the contract was finally awarded.

"After an analysis of the City's position," concluded Judge Casserly,

it is unclear how the release of the resulting Report would affect its decision-making process, as the request was made only after the process was complete.  Regarding the City's concern regarding the burden of future requests should Petitioner's request be granted, the Supreme Court has already declared that such concerns are without merit, as a case-by-case analysis is required when making determinations on such requests. . . Any negative public reaction or confusion from potential, not confirmed, errors in the drafts are speculative and do not clearly outweigh the public interest in disclosure.

As reported today in the California Newspaper Publishers Association's Legislative Bulletin:

The Senate Appropriations Committee yesterday removed two bills backed by CNPA from its suspense calendar, allowing both to be considered by the full Senate as early as next week.  Legislation is initially placed on the committee’s suspense calendar if its estimated costs to the state exceed $50,000.  According to President pro Tem Darrell Steinberg (D-Sacramento), the committee initially held bills totaling about $1 billion in new state spending, and, at the end of the day, released to the floor legislation totaling about $6 million in new spending.

The committee approved SCA 7 by Sen. Leland Yee (D-San Francisco), which would, if it obtains a two-thirds vote of the Legislature, present the voters with a chance to amend the state Constitution to prevent the continual suspension of the Ralph M. Brown Act in the budget process. SCA 7 has already received unanimous approval of both the Senate Judiciary Committee and Senate Committee on Elections and Constitutional Amendments.  CNPA is the sponsor of the bill.

The committee also released SB 46 by Sen. Lou Correa (D-Santa Ana), which would require certain public officials to file “compensation forms” and require the filed information to be open for public inspection and copying.  The bill would require agencies with Internet web sites to post the information contained on the disclosure form and the agency’s written policy for the reimbursement of expenses, if applicable.  SB 46 would require officials to disclose the public agency's cost for the public official's annual salary or stipend; the agency's cost to provide benefits to the public official, including but not limited to, deferred compensation or defined benefit plans; the agency's expense reimbursement payments to the public official; the agency's cost to provide the public official with any other monetary or non-monetary perquisites; and, the date on which the official completed ethics training required by law, if applicable. 

Like its unsuccessful predecessor last year (SB 501 – Correa), the bill is a response to the City of Bell scandal.

The controversial case was at first dismissed by a trial court judge who concluded that the defendants, including the CHP itself, owed no duty to the family to protect their privacy or prevent their anguish from the dispatchers' conduct,  But in February of last year the Court of Appeal decided to the contrary—that the parents had the right to sue for damages due to the defendants' negligence, invasion of privacy and intentional infliction of severe emotional distress. 

Yesterday's unpublished ruling was on a different issue:  whether the defendant Reich could use an anti-SLAPP motion to avoid liability on the theory that the photos' dissemination was an act of contritutionally protected speech.  Reich said he sent the photos to his family and friends as a warning of the consequences of drunk driving, but the court rejected that contention for two reasons. 

First, it could not see how the photos of the wreckage alone would communicate anything about drunk driving—that kind of point would have had to be made by accompanying text. Second, there was no evidence of such a message because Reich had destroyed all his e-mails and had not asked the recipients to produce them.  This lack of evidence conclusively precluded a First Amendment defense, the court said.

As more and more public agencies embrace the concept of open government every day, one local agency has just taken a major step backward in terms of the public's ability to access its records.

Two weeks ago, San Diego County's Civil Service Commission was the model of transparency in the digital age; through the county's website you could access all the commission's minutes, agendas and audio files. But last week, without notice or explanation, the commission scrubbed those public records from its website and left no instructions on how to access them. 

The commission is charged with hearing and investigating personnel issues. When a county employee believes he or she has been wrongly fired or disciplined or is a  victim of discrimination, they can appeal to the commission. Its meeting and hearings are open to the public, and so are its records (except in cases involving law-enforcement officers; those hearings are closed and the officer's names are redacted from records). For the public, this is one of the few avenues for investigating details of alleged wrongdoing by county employees.

Contacted by CityBeat, the commission's executive officer, Patt Zamary, explained that she made the decision in order to protect the privacy of employees, though the records are still available to members of the public who file formal records requests.

"When we put it on the website, we thought we were keeping in step with the times, and we didn’t realize until we got complaints from people that had been before the commission that, having their name on the website, it's like they couldn’t get rid of it," Zamary says. "When they’d Google their names, they would see it. They may have done something wrong that brought them before the commission or filed a discrimination complaint, but those records stayed on the website forever, and they really felt we had gone well beyond transparency into really compromising their privacy. Since we had grappled with that several times, I made the decision to remove those from the website since we’re not required to do that."

The commission isn't the only agency of late to scrub public records from the Internet in the name of privacy. Recently, the California Fair Political Practices Commission decided to remove complaints against candidates, political committees and elected officials from its website in order to shield the accused until formal investigations were concluded. The L.A. Times  called the move "shortsighted" and "contrary to the agency's primary mission of promoting accountability." Like the Civil Service Commission, the FPPC's documents are still available through formal requests.

"If someone emails us, we'll email them back," Zamary says. "We're not going to make this a laborious process."

At the same time, the decision adds multiple steps to a process that previously could be completed online without assistance. That's not to mention cost: CityBeat has requested a digital copy of everything, including documents and audio files. Zamary says that's doable, but it will cost us $5 per CD-ROM and the files will fill up at least two or three. It will be available within in the next couple of days.

In the privacy-rights world, this is called "practical obscurity," says Paul Stephens, director of policy and advocacy at the San Diego-based Privacy Rights Clearinghouse. By keeping public records in offline form, fewer people see them, and that's not a bad thing, he says. Once an agency posts personal information online, anyone can find through a simple search. This also allows companies to use the data to compile profiles of individuals for commercial purposes.

"Some government agencies will post just about everything that’s public on the Internet, while others do not do so," Stephens says. "Our interest is in protecting privacy, so we prefer not to see any sort of information that may be an invasion of an individual’s privacy posted online."

Through CalAware, California's top freedom-of-information advocacy organization, attorney Marco Gonzalez provides free assistance to members of the public in open-records issues. He strongly disagrees with the commission's decision.

"This is public taxpayer dollars being spent to do government functions," he says. "It’s all public record, so there’s no reason to hide it."

Gonzalez' law firm, Coast Law Group, has represented county employees in front of the Civil Service Commission, and he says that removing the files from the 'net has the potential to hurt his clients more than it helps.

"If I am representing someone before a commission like this and I have access to prior decisions, I am better prepared to represent my clients for whatever circumstances are coming up," he says. "It’s not too much to ask that otherwise public documents be available without going through the rigmarole of a public-records request."

For the past three years, Senator Yee (D-San Francisco), along with open government advocates including Californians Aware, students, and workers, have been trying to bring greater transparency and accountability to California’s public higher education institutions – University of California, California State University, and the state’s community college system.

Previous legislative efforts have been opposed by the administrations of UC and CSU and vetoed by former Governor Arnold Schwarzenegger (R-Los Angeles), but today, the sides announced a compromise that will remove the universities’ opposition, protect donor anonymity in most cases, and increase transparency at auxiliary organizations and foundations operating on public campuses.

“After several years of fighting to open up the books of our public universities, I am pleased that we are able to come to this agreement,” said Yee. “Finally, we will have true sunshine and accountability of the administration of billions of dollars within UC and CSU.  I commend the universities for seeing the light and allowing us to strike this deal.”

The amended version of SB 8 will ensure UC, CSU and the community college auxiliaries and foundations adhere to state public records laws. Under SB 8, all other financial records, contracts, and correspondence would be subject to public disclosure upon request.

In addition, the bill will protect the anonymity of donors and volunteers in all cases except in situations where there is a quid pro quo in which the donor or volunteer receives something from the university valued at over $2500 or in which the donor or volunteer receives a sole source (no-bid) contract within five years of the donation. Anonymity would not be provided to any donor who attempts to influence curriculum or university operations.

“The University of California is pleased to remove its opposition to SB 8 in response to amendments that will protect donor privacy and recognize that University campus foundations are non-profit organizations that exist solely to assist UC with its educational, research and public service mission,” said Steve Juarez, Associate Vice President of UC State Governmental Relations. “Senator Yee, his staff, and the sponsors of SB 8, in particular the California Newspapers Publishers Association, are to be applauded for negotiating a compromise that provides for greater transparency and accountability without sacrificing privacy protections that University donors and volunteers have a right to expect.”

“We are delighted that, after a three year struggle to require the CSU auxiliaries and UC foundations to operate openly and transparently, an agreement has been reached among the stakeholders that pulls the curtain back on these quasi-government agencies to inform the public about their operations while protecting the privacy of donors who choose to remain anonymous,” said Jim Ewert, General Counsel for the California Newspaper Publishers Association.

“The California Faculty Association is heartened that the CSU and UC are removing their opposition to this common sense reform for increased transparency,” said Lillian Taiz, CFA President. “We also want to thank Senator Yee for his willingness to negotiate language to which all the parties could agree. He is truly a great champion for accountability and transparency in higher education.”

According to the CSU Chancellor’s Office, in 2009, 20 percent of its $6.7 billion budget, or $1.34 billion, was held in their 87 auxiliaries and foundations.

Several recent examples demonstrate the need for increased public oversight and accountability provided by Yee’s legislation.

• The most recent scandal of an auxiliary organization involved the CSU Stanislaus Foundation.  The Foundation negotiated a speaking contract with Sarah Palin, but originally refused to disclose her compensation. After a lawsuit filed by CalAware, a judge ruled that the CSU acted illegally and forced them to disclose the contract.

• At Sonoma State, a $1.25 million loan issued to a former foundation board member two days after he resigned.  A bankruptcy court forced the Sonoma State Foundation to return a portion of that loan which the former board member attempted to pay outside of the bankruptcy court proceedings.  The Attorney General’s office and the FBI are investigating a number of auxiliaries at Sonoma State.

• The Fresno Bee newspaper was denied information in 2001, specifically concerning the identity of individuals and companies that received 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.

• 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.  At San Jose/Evergreen Community College, the Chancellor was found to have engaged in lavish travel and other examples of financial impropriety that prompted her resignation. Since local community college campus auxiliaries are already subject to the CPRA, these instances of waste and abuse have led to the parties being held to account.

• Sacramento State President Alexander Gonzalez spent over $27,000 from the campus auxiliary money to remodel his kitchen in 2007 and received over $80,000 for housing expenses on top of a foundation loan of over $230,000.  An Attorney General audit said the situation created “the appearance of impropriety.” Additionally at Sacramento State, $6.3 million of public funds was transferred to University Enterprises Inc. – a campus auxiliary – to backfill losses from a property acquisition, which is completely contrary to UC and CSU claims that no taxpayer dollars are used for campus auxiliary operations. 

• In October 2009, Cal Poly San Luis Obispo eliminated a guest lecture at the request of executives from the Harris Ranch Beef Company, who threatened to withhold $500,000 in support for a new campus meat-processing center.  Emails obtained by the San Luis Obispo Tribune also found that Harris Ranch may have also forced the resignation of a faculty member who taught a course on sustainable farming.  Harris officials then requested a meeting with Cal Poly administrators to determine whether or not to continue with their donation.

###

Only hours after a blistering editorial in the nearby Contra Costa Times, the BART board ordered a halt to the operation of some 20 "ad hoc" committees that CalAware was beginning to probe in preparation for litigation. These panels will either go public or be dissolved after a staff report on how to correct the problem.

The problem is that most if not all of these panels are not properly exempt from the Brown Act as "ad hoc" committees—short-lived task groups assigned to address a particular issue and report back to the full board within a set period—but instead should be meeting openly with posted agendas as standing committees, since they are given only a broad, even vague title and a list of members named to them, and operate from year to year as a continuing subunit of the governing board. 

The so-called "ad hoc" committees created by the BART board, for example, which have been meeting neither openly nor with an announced agenda, include those titled as Alternative and Mobile Fare Payments, Business Advancement Program, District Executive Management Diversity, District Security and Seismic Safety, District Strategic Representation, Expansion of District Presence, Rail Car Procurement Funding, Small/Minority/Women-Owned Business & Bonding, Sustainability/Green, Automatic Fare Collection, High Speed Rail, Redistricting, Station Capital Program, Strategic Funding Initiatives and West Dublin/Pleasanton Station.

The Contra Costa Times promptly issued a follow-up editorial today urging prompt corrective action, and recommending that most of these two- or three-member panels be dissolved, with their subject matter left to one of the board's three standing committees.  In addition, the editorial remarks on "a silly system under which the standing committees meet as part of the full board meeting. All of the board members attend. The only difference from the full board meeting is that there is a different chairperson, thereby stroking the egos of other board members by allowing them to say they chair a committee. It's a farce."

Meanwhile CalAware's Litigation Committee has approved filing suit against two Orange County cities, each of which it believes is abusing the "ad hoc" exemption from the Brown Act. Correction demand letters sent to Costa Mesa and Aliso Viejo attack the use of various just-created "working groups" on the one hand and an "Ad Hoc Transportation Committee" operating for more than two years on the other.

Costa Mesa's city attorney replied, defended its "working group" approach within days of the challenge but now the city council has set the matter to be discussed at its June 7 .  Aliso Viejo has not  responded but will address the challenge at its city council meeting next Wednesday, June 1.

Readers aware of cities or other local agencies whose governing bodies maintain "ad hoc" committees that do not meet openly but have no defined task to perform and no wind-up date—especially those in existence for a long period—are encouraged to report full particulars to CalAware.

As reported by Maria Dinzeo for Courthouse News Service,

     Juan Carlos Vera claimed James O'Keefe III and Hannah Giles visited his office in August 2009, and conspired to create video and audio tapes of him, even after asking him if their conversation would be confidential. The Acorn acronym stands for Association of Community Organizations for Reform Now.
     O'Keefe and Giles are best known for going undercover to discredit organizations like Acorn and Planned Parenthood. In one encounter, Giles posed as a prostitute and O'Keefe as a pimp to videotape an Acorn employee offering advice on how to run a tax-free brothel for underage sex workers.
     The footage of Vera purportedly involved the pair seeking advice on how to traffick underage girls from Mexico to work as prostitutes in the United States. The California Attorney General's Office investigated Acorn in 2009, but ultimately found that the conversations, while "highly inappropriate," were not in violation of state criminal laws.
     In response to Vera's $75,000 lawsuit for violation of the California Privacy Act, Giles claimed she was not liable for the recording because O'Keefe was wearing the camera.
     U.S Judge M. James Lorenz disagreed, ruling that the law "is directed to the surreptitious recording of confidential communications and not the manner or method of recording the conversation." Given the meaning of the word "record," Lorenz found Giles equally responsible.
     Lorenz also rejected O'Keefe's motion for judgment on the pleadings, in which he argued that First Amendment protections for journalists supersede the California Privacy Act. Since there was a mutual understanding that the conversation was confidential, Lorenz found that the privacy law "is not an overbroad intrusion on exposé newsgathering in which O'Keefe participates."

Jessalyn Radack reports that the apalling answers to these questions are found in this week's issue of America's premier practitioner of investigative reporting.

Former National Security Agency (NSA) official Thomas Drake faces trial under the Espionage Act for allegedly "retaining" classified information. Thankfully, The New Yorker has put this case under a miscroscope and revealed this criminalization of whistleblowing to be the government covering up for its own sins of secret domestic surveillance.

The article details domestic datamining, former NSA director Michael Hayden projecting votes by the Supreme Court if it eventually weighed in on NSA lawbreaking, and NSA proclaiming itself to be the executive agent for the White House. It explains how NSA used the Trailblazer program, "a 1.2-billion flop," as a funding vehicle, despite an inexpensibe, effective, legal alternative (Thin Thread) that could have picked up actionable intelligence such as 9/11 hijackers renting a hotel room miles from NSA's headquarters.

Six times government officials declined to comment on specifics, or anything at all. Tom Drake, who goes on trial June 13th, gave his first public interview on the case, explaining:

This was a violation of everything I knew and believed as an American.  We were making the Nixon Administration look like pikers.

The bill has overwhelmingly passed the Legislature twice but was vetoed by former Governor Arnold Schwarzenegger (R-Los Angeles). 

“I am confident that unlike his predecessor, Governor Jerry Brown will match his action with his rhetoric and sign this bill into law,” said Yee. “Our public universities should not be allowed to hide billions of dollars without any accountability. Most of these auxiliaries are fully staffed by public employees who administer public funds, yet their decisions are made in complete secrecy. Taxpayers and students deserve better.”

While SB 8 is considered a non-fiscal bill and previous versions of the legislation were not considered by the Senate Appropriations Committee, the bill will receive an unexpected hearing in the Senate Appropriations Committee in the next few weeks after the UC made such a request of the committee chair last week.

“There is clearly no cost to this bill and in fact it will likely save taxpayer funds and ensure dollars are spent on students rather than executives,” said Yee.  “Without any evidence and despite the bill’s language to protect donor anonymity, the UC and CSU are trying to claim the bill will result in fewer donations. We not only have anecdotal evidence from donors who say they need transparency in order to trust that their donation is being wisely spent, other states that have implemented similar laws have seen an increase in donors.”

The UC and CSU have often evaded the public records act by shifting some responsibilities to foundations and other auxiliary organizations operating on campuses. Several recent examples demonstrate the need for increased public oversight and accountability provided by Yee’s legislation.

The most recent scandal of an auxiliary organization involved the CSU Stanislaus Foundation.  The Foundation negotiated a speaking contract with Sarah Palin, but originally refused to disclose her compensation. They first claimed they had no documents pertaining to her June visit. After emails written by administrators regarding the visit were uncovered, they then claimed the Foundation was exempt from the state’s public records law despite being fully staffed by taxpayer-funded employees. 
 
Students later found pages 4 through 9 of the Palin contract in the administration’s Dumpster, which showed her visit requirements included a hotel suite, first class airfare or a private Lear jet, pre-screened questions, and “bendable straws.”  After a lawsuit filed by CalAware, a judge ruled that the CSU acted illegally and forced it to disclose the complete contract which showed she also received $75,000 plus expenses.

According to the CSU Chancellor’s Office, in 2009, 20 percent of its $6.7 billion budget, or $1.34 billion, is held in their 87 auxiliaries and foundations, and out of public view.

As the "Beyond Comment Threads" page offered by MoJo (Mozilla + Journalism) puts it,

How Do We Reinvent Onine News Discussions?

One of the best things about the web is that it enables many voices to be heard. Blogs, comment threads, forums, and social networks empower people to take part in new kinds of discussion, dialogue, and debate.

The best discussions around the web can be pretty isolated. Take comments, tweets, and other fragments out of their original context, and they can become meaningless. And take a look below the fold—in comment threads at news outlets, political blogs, YouTube, and elsewhere, you’ll often find that the loudest voices drown out everyone else.

At the same time, media is moving beyond the traditional "news story" as the only unit for commenting and interaction, stretching to include narrative arcs of multiple stories over periods of time, "explainers" that provide background knowledge for strings of stories, "streams" that include initial reports followed by updates and corrections, and more.

With all that activity happening across the web, how do we enable more coherent, elevated discussion? How can news organizations improve the signal-to-noise ratio in public news commentary?

Design better ways to weave the audience's voice into news

New capabilities in the browser provide opportunities to completely re-think the relationship between news users and producers. Demonstrate a new form of user interaction with news that is atomic, aggregated, augmented, or just plain awesome. Push beyond the ways we currently think about comments and online debate. Grab your sketch pad and:

• Explore emerging standards like OStatus, Webfinger and Salmon, which can liberate discussions from being tied to a single site or network. Here's a list of interesting technologies for a federated social web.
• Brainstorm cool applications of "atomic" commenting. Atomic commenting enables users to comment on a specific paragraph, sentence or moment. Check out early examples of atomic commenting like the Django Book (note the comment bubbles at the side of the page), or SoundCloud and Viddler, which allow users to place comments and tags at various points on the timeline.
• Explore the current state of user-interface innovation using JavaScript [1], [2], [3], or JavaScript + HTML packaged as browser add-ons.
• Consider the social dynamics at play. Think about how Slashdot and other online forums crowdsource moderation. What works? What doesn't? Would persistent identity lead to more civil debate—or discourage unpopular positions?
• Google around to get a sense of some of the current thinking about online identity. For example, consider the thesis of Republic 2.0: that if new technology gives us unprecedented access to and choices of information, it also gives us more ways to avoid information we don't like. What does this mean for civic participation? How could we address these problems?

For example, the Los Angeles Times reported last week that the U.S. Court of Appeals for the local federal circuit has ruled that going to the press with what you know about corrupt or otherwise shady practices isn't protected activity under the Sarbanes-Oxley Act, covering corporate workers and misdeeds.

Two auditors who helped expose violations in Boeing Co.'s financial reporting practices weren't entitled to whistleblower protections because they leaked the information to a newspaper instead of the appropriate authorities, a federal appeals court ruled Tuesday.

A federal accounting law — the Sarbanes-Oxley Act of 2002 — protects whistleblowers in publicly traded companies only when they report the irregularities to financial regulators, Congress or their supervisors, a three-judge panel of the U.S. 9th Circuit Court of Appeals said.

The law encouraging employees to out their companies' fraudulent or negligent practices differs from the Whistleblowers Protection Act that shields government workers from retaliation for any disclosure of wrongdoing, the court said.

The case involved two internal auditors assigned to assess Boeing's compliance with stricter financial reporting regulations and safeguards imposed by the Sarbanes-Oxley Act. The two were fired after the Seattle Post-Intelligencer carried an article on July 17, 2007, headlined "Computer security faults put Boeing at risk." The story said Boeing had been unable for the previous three years "to prove it can properly protect its computer systems against manipulation, theft and fraud."

An investigation by the company's human resources department traced the leaks to emails sent by auditors Matthew Neumann and Nicholas Tides. Boeing fired them.

Neumann and Tides sued, alleging wrongful termination, saying that the federal law shielded them from reprisals. The suit was dismissed by a Seattle federal judge last year, and the 9th Circuit panel upheld that dismissal.

The Sarbanes-Oxley Act was adopted to protect shareholders in publicly traded companies from fraud and securities violations. It included protections for whistleblowers in response to "a culture, supported by law, that discouraged employees from reporting fraudulent behavior not only to the proper authorities, such as the FBI and the SEC, but even internally," the 9th Circuit panel said.

But Congress' intent was to protect disclosures "only to individuals and entities with the capacity or authority to act effectively on the information provided," the judges said.

"If, as Neumann and Tides contended, the disclosure of information to the media is protected on the ground that it may ultimately fall into the hands of a member of Congress or a federal regulator, then virtually any disclosure to any person or entity would qualify as protected whistleblower activity," the unanimous court ruling said.

On the other hand, if you work for a government agency and for some reason your reporting of improprieties is not covered by a whistleblower protection statute, the First Amendment will not help you if, instead of going to the press, you take the matter up the chain of command, the U.S. Supreme Court has ruled. In a case where a Los Angeles District Attorney subjected  one of his lawyers to retaliatory career penalties for conscientiously but energetically calling attention to what he believed to be an invalidly obtained search warrant, the court concluded that since the lawyer was just  doing what he thought was his job, he was not speaking out publicly as a citizen and thus had no free speech protection.  Justice Kennedy, writing for the court, observed:

Employees who make public statements outside the course of performing their official duties retain some possibility of First Amendment protection because that is the kind of activity engaged in by citizens who do not work for the government. The same goes for writing a letter to a local newspaper . . . or discussing politics with a co-worker . . . When a public employee speaks pursuant to employment responsibilities, however, there is no relevant analogue to speech by citizens who are not government employees.

Meanwhile the National Whistleblowers Center reports that a bill introduced by freshman Staten Island Congressman Michael "Mikey Suits" Grimm would go far toward gutting Sarbanes-Oxley's whistleblower protections, chiefly by requiring corporate employees to complain about suspected financial wrongdoing to the company insiders committing it before going to the SEC.

As reported by Thomson Reuters,

A three-judge panel of the Court of Appeal, Third Appellate District, on Wednesday ordered the Sacramento County Employees' Retirement System (SCERS) to reveal the pension amounts of named county retirees. The unanimous opinion rejected arguments that the information is private and confidential.

The Sacramento Bee newspaper had requested the pension amounts and names of all retirees making over $100,000 a year in 2009, amid public outcry over the state's soaring pension liabilities. SCERS provided the dollar amounts but refused to disclose any names, claiming that such information was shielded under the California Public Records Act, which carves out protection for "individual records."

The newspaper took its case to court, arguing that the public had a right to the information, given the tricks that many public employees have allegedly used to boost their retirement income. The Sacramento Bee presented evidence of so-called "pension spiking," where employees worked overtime or cash out vacation time to increase their income in their last year of employment, and "double dipping," where they collect both a pension and a salary from another job.

The trial court judge ruled that public employee pensions do not qualify as private information protected under the statute, and the court of appeals agreed.

"Although SCERS has identified some legitimate interests in nondisclosure, they fall far short of compelling," the court of appeal's ruling said. "We do not view the fact of an individual's public retirement to be a personal matter."

"We respectfully disagree," said Stephen Roberts, a lawyer for SCERS, who said that the term "individual records" applies to any records that identify the individual.

The court also rejected the retirement system's claim that disclosure would expose retirees to public hostility, fraud and identity theft in their "golden years."

Numerous media organizations joined the case as interested parties in favor of disclosure, including the Los Angeles Times Communications, the Associated Press, the Hearst Corp and the New York Times. Thomson Reuters did not join this case, but did sign on to an amicus brief in a similar San Diego case that is currently on appeal.

Thomas Burke, a lawyer for several of the media companies involved in the case, said the unanimous decision was an important ruling that vindicates the public's right of access. "There could be no more critical time to have this kind of information be publicly available, when virtually every county in the state is grappling with budgetary issues affected by pension obligations for county retirees," he said.

Multiple trial courts across California have ordered county retirement systems to turn over the names and pension amounts of county retirees. The Sacramento Bee case is the first one to reach a decision on appeal, according to Burke.

He  writes today:

As I reported in this post from last November, the California Public Employees Retirement System has reworked its Focus List program.  According to this flow chart  published by CalPERS, the staff should have now completed its review of the top 500 U.S. based companies and selected 5-10 companies for what CalPERS calls “engagement”. 

CalPERS’ revamped Focus List process raises significant concerns for those who value open government and transparency.   In California, state agencies are subject to the Bagley-Keene Open Meeting Act.  . . . The CalPERS process, however, contemplates at least two closed sessions of the CalPERS Investment Committee.  It’s not clear whether the Bagley-Keene Act permits these meetings to be held as closed sessions. 

It is possible that CalPERS is relying on Government Code Section 1116(c)(16) which permits pension funds to hold closed sessions “when considering investment decisions”.   However, investment decisions would seem limited to decisions to buy, sell or vote securities and not discussions about corporate governance negotiations.

Even if these closed sessions are lawful under the Bagley-Keene Act, the act does not require that CalPERS conduct these meetings in secret.  CalPERS is therefore free to report on its Focus List “engagements” openly.   By cloaking these negotiations and discussions in secrecy, CalPERS also runs the risk that it may run afoul of California’s insider trading statute, California Corporations Code Section 25402 should it buy or sell securities of an issuer while it is “engaging” that issuer.