Michael A. Jones / Bee file, 2007

Terry Francke is co-founder and general counsel of Californians Aware, which advocates for increased government openness.

Q&A: Open-government advocate Terry Franke sheds light on Public Records Act

Published: Monday, Mar. 11, 2013 - 12:00 am | Page 1B
Last Modified: Wednesday, Mar. 13, 2013 - 6:37 pm

The California Public Records Act, enacted in 1968, made access to state and local government records easier and faster, and eliminated many hurdles the public faced in trying to stay informed about how government bodies and officials operate behind closed doors.

Sunshine Week – a national celebration and discussion of open access – started Sunday and runs through Saturday.

The Bee asked Terry Francke, a leading expert on access to government information, to describe the act and the challenges still faced by the public as law and technology have evolved.

Francke is co-founder and general counsel of Californians Aware, a nonprofit, nonpartisan group that advocates for increased openness and public disclosure by government. He formerly served as executive director and general counsel for the California First Amendment Coalition and legal counsel for the California Newspaper Publishers Association.

What led to passage of the Public Records Act in 1968?

It's the result of several attempts back in the 1960s to put together a comprehensive law to replace sort of a jumble, a mixture of statutes. Under those older laws, courts were left to decide, on a case-by-case basis, whether a given document was to be considered accessible to the public.

Under the act, almost any record created by a government agency concerning government business is presumed to be public, leaving the burden of withholding on the government.

How does it compare to similar laws in other states, or to the federal Freedom of Information Act, passed in 1966?

The current state of the Public Records Act probably leaves it behind most other states, less demanding than most other states because of a provision that allows the government to exempt records by arguing that the public interest is better served by withholding than disclosing.

Also, the act's exemption for records of law enforcement investigations is very comprehensive and has been interpreted to be permanent. It's so universal that some officers don't realize that there is discretion there.

If there were an even-handed rule, then a journalist or some other requester could argue, and the court could conclude, that while the department does have the discretion to withhold, in some cases, circumstances show that there is a greater public interest in letting the public know how this investigation was conducted. It's a bias for nondisclosure built into the Public Records Act, an escape hatch for the government.

The courts have also supported withholding documents that are part of a "deliberative process," which has been used by public agencies to prevent disclosure by labeling – or mislabeling – documents as drafts.

How does the act relate to California Proposition 59, approved by voters in 2004, which adds sunshine provisions to the state constitution?

A big difference made by Proposition 59 is that now if you have a rule of law that provides for public access to government meetings or government records, that law is to be interpreted broadly, generously. And that if you have a rule that limits access, that rule is to be interpreted strictly or narrowly. It prevents agencies from stretching secrecy farther than where it belongs.

What are the act's key strengths and top challenges?

The big difference made by the law is that the burden is placed on the government to cite a specific rule in denying access and that by and large, public agencies take the law seriously and do their best to comply with it, though the timing and the cost of compliance are not always satisfactory to the requester. Ironically, this is particularly true with requests for digital information.

That's the greatest single need for reform in the Public Records Act, because the public, given all the taxpayer funds spent on computer systems, and the idea that computer systems are supposed to make transfer of and access to information much more rapid and efficient.

It can get in the way for the kind of access to public information that people have come to expect as routine in their other uses of information and the Internet. It's deliberately done to slow, discourage or stop examination of public facts and figures.

Call The Bee's Charles Piller, (916) 321-1113. Follow him on Twitter @cpiller.

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