Legislature's secrecy puts cloud over Sunshine Week, critics say

First of two parts

After years as a county supervisor, Todd Spitzer believed in open government and wanted to bring a dose of it to his new home in the California Legislature.

He was about to learn a hard lesson: When it comes to open government, the Legislature plays by its own rules.

A bill Spitzer carried in 2004 would have made the Legislature subject to the same public records law that applies to everyone from the governor to Galt City Council members.

Spitzer's Assembly Bill 2714 sparked a rare instance of bipartisanship. No one on the committee, Democrat or Republican, made a motion to consider it.

"I didn't even get a courtesy vote," Spitzer recalls.

The Orange County Republican had just run up against the Legislative Open Records Act – a state law with a name that some, including Spitzer, find ironic.

"We're great about telling everyone else about having open government," Spitzer said. "When it comes to ourselves, we're complete hypocrites."

During this Sunshine Week, designated by the American Society of Newspaper Editors to promote open government, the California Legislature offers an example of a body resistant to change.

On paper, the Legislative Open Records Act resembles its cousin, the California Public Records Act – the law that spells out the rules for releasing information for all other government agencies except the courts.

But the LORA, as it's known, contains some blanket exemptions. Phone records are off-limits, except for the overall charges. So is correspondence to and from the state's 120 lawmakers, including letters from the public.

Here's an odd one: Government Code 9075(e) provides that the Legislature doesn't have to cough up "records pertaining to the name and location of recipients of automotive fuel or lubricants expenditures."

In other words, there's no way to trace the travel of lawmakers by checking out their gas bills.

The public likewise cannot demand records of complaints about the Legislature or its staff that are investigated by the Legislature.

"There's a good deal of confidentiality for members who may be getting into trouble," said Terry Francke, general counsel for Californians Aware, which promotes open government.

Francke previously was the general counsel of the California First Amendment Coalition, one of the sponsors of a 2004 constitutional amendment to strengthen the Public Records Act.

Former Senate President Pro Tem John Burton, who promoted open government during his tenure but agreed to exempt the Legislature from the 2004 constitutional amendment, maintains that records such as personnel investigations and correspondence with the Legislature should be private.

Constituents, for example, might disclose personal information in a letter, and it should be up to them to decide to make it public, he said.

Besides, Burton said, reporters have other ways of finding out what's happening.

"You want everything to be easy for you?" he asked.

Here's how the legislative records law works in practice:

In 2001, The Sacramento Bee received a tip that the state Senate had paid out a settlement to a staff member who alleged she had been retaliated against for spurning the advances of then-Sen. Richard Polanco, a Los Angeles Democrat.

The newspaper, through the Legislative Open Records Act, was able to confirm that the Senate paid the woman $117,000. The records provided by the Senate revealed the name of the accuser, but whited out Polanco's name and provided few other details.

When challenged, the personnel director of the Senate Rules Committee said the information was withheld "because it is a private personnel matter."

Only by discovering a separate complaint the woman filed with another state agency, subject to the Public Records Act, did a reporter confirm Polanco's role and get details of the alleged harassment.

The newspaper hit the same roadblocks a year later when the Assembly paid $140,000 to a staff member who said she was harassed by her boss and an Assembly member. The Assembly Rules Committee would not disclose the names of the alleged harassers or the woman's complaint. The newspaper got the details by interviewing the woman and obtaining a complaint she filed with another state agency.

About the writer:

• Call John Hill, Bee Capitol Bureau, (916) 326-5543. * * * Monday: In Placer County, officials cite electronic obstacles to quickly sharing public records.