You can’t be too cynical when it comes to public officials and their desire to keep public records secret. And thinking cynically, it made perfect sense for Gov. Jerry Brown and state Senate Democrats to try to tame the controversy about their attempted gutting of the state’s public records law by offering up a proposed constitutional amendment to protect public records.
It didn’t work, fortunately, given the media uproar over the gutting; the governor and the senate surrendered and supported an assembly bill to undo the damage of a budget trailer bill. But the “take it to the people” strategy is standard in California. The state’s political players—from the left, center and right — have a taste for pushing things out of the wide-open court of public opinion, where everyone with an Internet connection can have a voice, into the realm of ballot measure politics, where only people and organizations with millions of dollars (or the ability to raise millions) count.
People like their donors.
This elite taste for choosing the most expensive (and thus most exclusive) venues for debate is a core problem of California’s anti-politics politics. It’s also a successful strategy. The public thinks – and the media portray – the act of putting questions to the people as an inclusive strategy. It isn’t when access is limited to those with money.
Ironically, the real trouble with the California Public Records Act (before the attempted gutting) was that it had already been rendered ineffective, particularly for people who don’t have money to enforce its provisions in court. For years, in a variety of tests under which people have sought records, citizens and media people without institutional backing rarely get documents they are legally entitled to when they ask for them. Governments routinely ignore the law or use technicalities to delay or frustrate record-seeking.
The people who have used the act effectively are well-funded institutions, including the media – who have the resources to hire attorneys to force governments to respond to their requests and follow the law. Most of the time, it is the threat or reality of costly litigation to get the records, and not the public records law itself, that forces the governments to cough up records.
The budget trailer bill SB 71’s language, which would have turned those often-ignored legal requirements (for responses and explanations) into options, was really about limiting the leverage that litigation provides. It would have eliminated what lingering power remains in the act.
And you’re not being too cynical if you see a pattern here. We recently saw a similar effort to cut the teeth out of the Brown Act, the state’s public meetings law. Both the attacks on public records and public meetings were dressed up as fighting’s over the budget and reimbursable state mandates. Some commentators still maintain that’s what this is all about. Please.
The elite’s real game is to limit what few tools the public has, and to force controversies into venues where the average citizen doesn’t have the resources to participate. It’s nothing less than a war on public participation.
The attitude of the public officials doing this is understandable. It’s next to impossible to govern in California. And public participation processes and laws – including the public records and meetings acts – are more often used by interests trying to get a legal advantage or a special dispensation from government than by regular citizens seeking to learn more from government. In the weary eyes of officials, no one seeking records or enforcing public meeting laws looks like anything but another self-interested pain in the butt. And from that vantage point, the public records act looks more like CEQA, another tool for frustrating government and decision-making, than a tool of public accountability.
But the way officials are responding to this understandable frustration is counterproductive. Attempting to gut these laws simply fuels even greater public cynicism – and will lead citizens and interests to more aggressive, provocative tactics in their dealings with government.
The better way is to rethink, revamp and modernize these laws to boost public participation. What do I mean? For example, the strict limits on public meetings so limit communications between elected officials outside of public meetings that they get in the way of modes of public participation. For example, attorneys have said that participatory budgeting, a method for letting the public decide matters that uses wide-ranging discussion between elected officials and citizens, could be illegal. So might an online tool that promotes wide-ranging conversations between, say, school board members and parents.
If California’s public officials want to show good faith, they should do more than reverse themselves on this bad bill. They should start building new and better laws and resources for citizens. California badly needs a public infrastructure of participation, with the goal of making sure all people truly have not only a voice but also the power to bring forth ideas and hold government accountable. This should include all kinds of things: pools of public lawyers who can help citizens fight governments for public records, requirements to provide more data on-line, and a public process like a citizens’ jury with the power to put a good idea from a citizen on the ballot as an initiative (without the $2 to $3 million for signature gathering).
Until Californians see constructive action along these lines from public officials, we should continue the current fight against these gutting efforts – and not allow ourselves to be sold a promise of a constitutional amendment, or any other bill of goods.