To counter the powerful incentives facing elected and appointed public-sector officials and government employees to conceal information and operations, “sunshine laws” have been enacted to open the doors of government so the public can view the debates, decisions, and actions of government and the outcomes of government policies.
The laws and regulations designed to enhance transparency generally fall into one of two broad categories: (1) open government-meetings laws and (2) open public-records laws.
Open-meetings laws mandate that the public and news media be allowed to attend government meetings. Typically, the laws require that governments give advance notice to the public of when and where meetings will be held and what items will be discussed. In addition, the laws often require that government agencies assemble and publish a written record (“the minutes”) after each meeting.
California’s open-meetings laws consist of three acts: the Ralph M. Brown Act, which covers local governments and political subdivisions; the Bagley-Keene Open Meeting Act, which covers state agencies; and the Grunsky-Burton Open Meeting Act, which covers the state legislature.
The other major transparency category, open public-records laws, stipulate which documents in the possession of government agencies are available to the public and the steps necessary to obtain these documents. Each state has its own rules pertaining to access to documents in the custody of its state and local governments. It can be very confusing and time-consuming for members of the public and for reporters to gain access to supposedly “open” public records.
California’s open-records laws consist of two acts: the California Public Records Act and the Legislative Open Records Act.
To determine the problems with California’s current transparency rules, this report compares California’s open-government laws to those in the other 49 states using two recent scholarly assessments: the BGA-Alper Integrity Index, produced by the Chicago-based Better Government Association (BGA) and Alper Services, and the Marion Brechner Citizen Access Project (CAP) at the University of Florida College of Journalism and Communications.
The comparative assessment is able to determine: (1) if California’s transparency laws are relatively strong or weak overall and (2) which provisions are particularly strong or weak in the Golden State compared to other states. The assessment identified the primary limitations and loopholes in California’s current system and spotlighted specific areas in need of reform.
After crunching the numbers, the Integrity Index ranked California a dismal 45th for its open-meetings laws, receiving only 5.75 of 20 possible points (29 percent). The CAP database had nine categories that pertain to open meetings. California ranked no better than a 5 (somewhat open) in any of the categories. These two assessments revealed 12 significant policy deficiencies in California’s open-meetings laws and provide the basis for the open-meeting policy recommendations presented in the report.
Regarding the Golden State’s open-records laws, the Integrity Index found that California ranked a mediocre 17th, receiving 8.5 of 16 possible points (53 percent). The state that once was a national leader in open government now receives a letter grade of “F” for its open-records laws from the National Freedom of Information Coalition (NFOIC) and BGA. CAP gave California a score of 3 (somewhat closed) in 40 categories and a score of 2 (mostly closed) in 13 categories. The closed or problem areas identified from comparative assessments of California’s open-records laws with those in the other 49 states using the best scholarly research available today, provide the basis for the open-records policy recommendations presented in the report.
To strengthen California’s open-meetings laws, the report recommends:
- Tighten the definition of a public meeting.
- Tighten the rules regarding informal, chance, or social gatherings/meetings.
- Abolish certain exemptions so that meetings are always open that deal with agency executive hiring, public employee salaries and benefits, collective-bargaining with employee unions, eminent domain, and meetings of the State Board of Education or the Superintendent of Public Instruction that review assessment instruments or test content.
- Require posting on the Web of an annual notice of regular public meetings. Also, meeting-agenda notices should give the public advance notice in plain English of what the public body will consider at the meeting.
- Require public bodies to post and archive minutes of public meetings on the Web and to do so within seven business days.
- Create a faster, competitive, non-judicial administrative remedy process by allowing an individual who alleges a violation of an open-meetings law to appeal to a state ombudsman who would have authority to render administrative rulings on complaints. The ombudsman should also be responsible for training public employees, via an orientation program, on compliance with open-meetings laws and open-records laws.
- Lengthen the statute of limitations for filing lawsuits.
- Mandate expedited hearings.
- Stop litigation tourism with explicit venue requirements.
- Increase criminal penalties for open-meetings violations, enact a “three strikes” penalty of job removal/impeachment for any member found guilty of three separate criminal violations of the open-meetings laws during the member’s lifetime, and enact mandatory recovery of attorney fees and court costs.
- Establish civil penalties for open-meetings violations.
- Establish a separate civil penalty for improperly holding a closed, executive session. Also, the laws should uniformly require a two-thirds supermajority vote to close a meeting and all closed meetings should be recorded (preferably video and audio).
To strengthen California’s open-records laws, the report recommends:
- Open police misconduct investigatory files after one year and open disciplinary proceedings and actions.
- List all exemptions to public disclosure in the laws, abolish the “public interest” test for non-disclosure, and require more “affirmative disclosure.”
- Create a commission to review all exemptions to the open-meetings and open-records requirements. The law should also require a two-thirds supermajority vote by the state legislature to add new statutory exemptions.
- Mandate that indexing (providing a list) does not relieve a public agency of its duty to serve the public fully.
- Require all public agencies to develop access guidelines and make them available to the public on the Web free of charge. Also, public agencies should develop online forms for public-records requests.
- Make available certified copies of public records.
- Open testing material to public inspection.
- Make fees transparent.
- Keep public records for 25 years.
- Create a faster, competitive, administrative remedy process by allowing an individual who alleges a violation of a public-records law to appeal to the agency head or an ombudsman with authority to render administrative rulings on complaints.
- Mandate expedited appeals.
- Lengthen the statute of limitations for filing lawsuits and appeals.
- Establish criminal penalties for open-records violations with the same “three-strikes” and mandatory-recovery provisions as for open meetings.
- Establish civil penalties for open-records violations.
Government-employee unions are certain to oppose many of these reforms, as will many sitting and prospective public officials and government employees who will fear the bite of true sanctions for noncompliance. Opposition is to be expected. But the facts supporting these recommendations remain: California’s transparency laws are weak in many areas, not consistent with best practices, and in need of updating.
Some of the reforms proposed here would be simple and inexpensive to implement. Others would be complex and more costly. If the more than two dozen policy recommendations in this report were adopted in California, the Golden State would be the national leader in open government and would fulfill the fundamental right of public access embodied in Article 1, Section 3 of the California Constitution.