By Bill Snyder, Tribune Staff Writer
Nearly 25 years ago, a Republican assemblyman and a Republican newspaper publisher convinced then-Gov. Ronald Reagan to sign a bill that would become a bulwark of civil liberties in California.
"The public should always know what government is doing," said Bill Bagley, the now retired North Bay assemblyman who wrote and fought for the California Public Records Act of 1968.
The act was meant to give the public the right to see government documents, a right that previously existed in name only. But civil liberties activists and many journalists say the fight for the right to know is still being waged.Hoping to find out how well the act is working, the Oakland Tribune and the First Amendment Project, an Oakland-based watchdog group, surveyed 30 Bay Area city, county and regional governments and agencies by giving each a test request for information.Here are the major findings of the survey:
- Ten of the government agencies failed to comply with the law's 10-day deadline for answering requests.
- Only half of the agencies have a written document that employees can use for guidance when confronted with a request under the records act.
- Ten of the agencies charged more for documents than media lawyers considered reasonable.
"I'd call that a miserable level of compliance," said Mark Goldowitz, director of the First Amendment Project, an Oakland-based civil liberties watchdog.
The survey asked agencies to detail how they responded to publich records act requests between August 1991 and August 1992. It also asked the agencies to specify their policies on answering such requests and how much they charged for information.
Particularly troubling to Goldowitz was the fact that problems in compliance occurred despite the fact that the survey asked for no sensitive information and was done by a lawyer for a major newspaper.
"This was a request that cried out for compliance. If they won't comply with this, what will happen to the average citizen?" he asked.And although most people probably assume that members of the media are the only ones to avail themselves of the act, the First Amendment project survey found that private citizens—not investigative reporters—make the most requests for information from state agencies.
In San Jose, for example, many citizens used the act to obtain information on traffic patterns and traffic signals needed to fight traffic tickets in court.
And a citizens group in that city filed numerous requests to find out how—and if—industries were working to reduce groundwater pollution.In Richmond, Doug Ziegher, a business agent for Local 51 of the United Union of Roofers, Waterproofers and Allied Workers, wondered if a Southern California contractor hired by the city was paying a legal wage. He found out that they were, but it took a records act request to do so."I'd be dead without the act," he said.
Concerns abut fire safety and water wasters prompted a rash of requests by journalists for information from the East Bay Municipal Utility Distrcit and the Contra Costa Water District during the last 12 months.
Trying to find the 100 biggest residential users of water, the Tribune eventually took both water agencies to court – and won.
Also successfully sued by the Tribune were the City of Oakland and the Oakland Housing Authority.
"It shouldn't take a lawsuit, but it often does," said Goldowitz.
Despite the intent of the legislature to make records act requests affordable, some agencies seem to use high charges to make money or
deter requests, said Terry Francke, executive director of the Sacramento-based First Amendment Coalition.
The law and legal opinions by the state Attorney General indicate that agencies are entitled to be reimbursed for the actual cost of reproducing a document, including staff time, he said.Information Costs
But many agencies seem to charge much more than their costs, and at least six even tacked on "research" fees, the survey found.
Goldowitz and other attorneys said a fee of no more than 25 cents per page seemed to comply with the spirit of the law. But the survey found 15 agencies charged more than 25 cents a page, while 12 charged that amount or less, and eight did not respond.
The highest fee charged during the year was $10 a page by the Contra Costa Water District in response to a Tribune request for a listing of major water users. The district attempted to charge the newspaper $480.00 for 48 pages of documents.
The Tribune rejected that bill which included a $318 "general counsel" charge, and eventually paid about $16 for copying and staff time, Goldowitz said.
Although the passage in 1953 of the Ralph M. Brown Act gave Californians the right to attend most government meetings, it took another 15 years to win the right to view government documents.
In those days, Bagley recalled, access to public documents was controlled by a provision of the state evidence code that regulated the conduct of trials. "The code said certain documents were public records because they could be subpoenaed. We had no guidelines, no mandate, it was very murky," Bagley said.
In 1964, the movement for openness in government got a big boost with the passage of the federal Freedom of Information Act, which vastly improved public access to federal documents. Many state legislatures followed suit, including California's in 1968.
But the act was almost vetoed by then-Gov. Ronald Reagan at the urging of Finance Director Caspar Weinberger, Bagley recalled.
Struggling to save the bill, lawmakers agreed to exempt the governor's office from the act – an exemption that still stands.
A veto would still have occurred, but Oakland Tribune publisher and former Republican Senator William F. Knowland made a last-minute lobbying effort that convince the conservative governor to sign, Bagley said.High-tech era
Although the computer age had already begun, few lawmakers in the 1960s anticipated the rapid shift from paper to computerized records.
While the computer makes it much easier to store and retrieve information, the burgeoning technology also raises difficult legal questions, as Donna Powers, a candidate for the Richmond City Council found out last year.
Wanting to make the city expenditures a campaign issue, Powers asked for city records detailing money spent by the mayor and the city council. She got them, but not in the form she expected.
Instead of a spreadsheet or other easy-to-read list of check numbers and expenditures, Powers' campaign received a computer-generated check register containing a list of all checks written by the city during the previous year.
Because the checks were not separated by category, "this transformed a process that ordinarily would take a few minutes into an impenetrable process that takes dozens of hours," her attorney wrote in a public records lawsuit.
The attorney argued that it would be a simple matter to comply with the request by having the computer take the next step and sort the records. In fact, the city had done just that for Powers to meet an earlier request for financial information, he said.
But Contra Costa Superior Court Judge David A. Dolgin ruled against Powers: "The information was contained in records provided to (Powers) if only (she) had the patience to look," Dolgin wroted.
Francke believes the Powers case was the first, and so far the only lawsuit in California over the form of computerized recordsreleased by the government."Nothing in the law says that the government has to make it easy for you," Goldowitz said.