Why It Matters that the Legislature Changed Course and Protected Our Rights to Public Records

The American Civil Liberties Union of Northern California this week was forced to file a lawsuit against Sacramento County officials after they failed to respond to requests for public documents. It's a case that underscores why it was so important that the state legislature last month backed off plans to weaken the California Public Records Act: the fact is that even with the law intact, it often takes going to great lengths to get access to information that should be readily available to the public.

A couple weeks ago, the California legislature voted to allow cities, counties and school boards to opt-out of several parts of the California Public Records Act that help Californians get answers from our government about what our government is doing and how our tax dollars are being spent. Fortunately, after a huge outcry from the press, organizations like the ACLU and individual Californians, the legislature changed course and voted to preserve this important law. Although the intent in making these changes was to reduce state costs, the reality is these changes would have allowed local governments to make it nearly impossible for ordinary Californians to get access to information to which they are rightfully entitled.

The ACLU-NC has long supported Californians' right to get information about their government, both because it is an important right in itself and also because getting this information is often an essential step in making sure the government is respecting other constitutional rights. In our work, we often use the PRA to try to investigate reports that the government is breaking the law. But all too often, we continue to find that answers are hard to get, that the government ignores our requests and its duty to respond to them and to provide us with public records.

This is why we just sued Sacramento County Tuesday. Back in February, we learned that Sacramento was going to prohibit prisoners at its jail – including those serving long sentences and those who were there because they couldn't make bail – from sending letters to family members and friends; instead, they would only be able to send or receive 4-inch by 6-inch postcards. We sent them a letter explaining why this proposal was both bad policy and unconstitutional, asking them to meet with us to discuss it. We never heard back. Then, in April, we sent them another letter, this time requesting records about the proposal under the PRA, which requires that they respond within 10 days to tell us whether they will provide records and, if so, when. They responded with a single phone message saying that they had received our request and would need time to process it, but no indication of when they would provide records. We repeatedly followed up with voicemails and emails, but never heard anything back until the end of June, when they provided a few documents but simply ignored the bulk of our request, acting as if it didn't exist.

This sort of non-response to PRA requests is not unusual, and it often seems to be a calculated attempt to avoid providing public records while at the same time making it hard for the people requesting those records to know what is going on or to do anything about it. For example, when we learned that two Fresno police officers had been videotaped in broad daylight beating a homeless man and asked for records about the incident, the city claimed it never got our request (and then refused to turn over its logs showing what requests it had received). When we followed up with them, they said they would give us the information, but only at some unspecified date in the future. When we asked the Los Angeles District Attorney's Office for records about how much money it spends prosecuting death penalty cases, it claimed it didn't have any records. And when we asked California prison officials about where it was obtaining supplies of the highly controlled drugs it uses for executions, we were told that it had responsive records but then ignored our repeated attempts to actually get those records, or to find out when we might get them.

In all of these cases, we only got answers to our questions after we took the government to court to enforce our rights to this public information. And because the government had never actually denied our request, we had to rely on the law's requirements that the government respond to PRA requests in writing, that it say what records it will not release and, if it will release records, the date when it will do so. And these are the provisions that the legislature voted to allow local governments to ignore. If these changes had gone into effect, local governments would have felt even freer to throw up all of these roadblocks to our getting information. And if the government makes it so hard for us, with a legal team that is in a position to sue to enforce our rights to public records, you can only imagine how it treats requests from Californians who are simply trying to find out what their government is up to but aren't specialists in public records law and who aren't in a position to hire a lawyer to help them exercise their rights. The last thing they need is for the legislature to provide their local officials with even more excuses to ignore requests for public records.

Michael T. Risher is a staff attorney with the ACLU of Northern California.