Our Public Records Law's Major Flaw

By: Sydney Lupkin

Here’s a hypothetical for you: A reporter in Florida requests a public record from a state agency. The agency gets back to the reporter to say he can have the record, but it will cost $100,000 — well outside the newspaper’s budget. But the reporter doesn’t panic, because he’s in Florida, where the palm trees are native and there’s an official public records mediator available to help him out. After talking to both sides, the mediator finds that the giant fee resulted from a miscommunication and tells the state agency to hand over the records for $25 in copying fees. Piece of key lime pie.

As I mentioned in my last post, agencies can legally say no to some records requests because of exemptions built into sunshine laws, but sometimes the person requesting the records will disagree with a denial, redaction or hefty fee. Florida is one of several states that police themselves by maintaining an office to handle mediation for this kind of dispute. In states with mediators, there are people whose jobs revolve around making sure government agencies are in line with the law.

California isn’t one of those states.

The California Public Records Act is generally modeled after the federal Freedom of Information Act, but it lacks FOIA’s administrative enforcement mechanism, which allows for an appeals process before a requester has to resort to expensive legal action. So California requesters have two choices when they think they’ve been wrongfully denied: give up or sue. Swell.

Is going to court really that bad? I asked Duffy Carolan, the lawyer who delved into all 17,000 words of the CPRA to explain it to non-lawyers like me on an open government website owned by the Reporters Committee for Freedom of the Press. She said what she dislikes about CPRA is that public access cases aren’t easy to litigate.

“When the government wants to dig in their heels, they can make it very costly for the requester,” Carolan said, adding that members of the public often don’t sue because they can’t afford it. It’s also costly for newsrooms, and though they can sometimes afford to go to court, finding the time and money to litigate chips away at other resources.

To get an idea of what litigation does to a newsroom, I talked to sportswriter Brent Schrotenboer at the San Diego Union Tribune. Back in 2004, he requested records for a story about a then-pending lawsuit between San Diego State University and two former employees in the athletic department over an audit with some less-than-flattering accusations. When those records were denied, Copley Press Inc., the paper’s former owner, sued the state university system.

The case lasted about a year, and the paper burned through $41,000 in legal fees. (In this case, the court ruled the university should pay the paper’s legal fees, but that doesn’t always happen.) Superior Court sided with Copley, but the university appealed and the paper was ultimately granted access to deposition transcripts but not the legal correspondence.

“It took so long to go through the process,” Schrotenboer said. “When we finally did win, the deposition documents weren’t newsworthy anymore.” Still, it sent a message to the powers that be that the San Diego Union-Tribune would fight back in the face of noncompliance.

Schrotenboer said “back in the day” it wasn’t unusual for media outlets to aggressively combat denials, but things have changed. “When somebody threw up a roadblock, we had more ammunition to fight it,” he said. “Back in the day” was 2004.

Newspaper staffs nationwide have shrunk by almost 15,000 since 2001, according to the American Society of News Editors. In the Bay Area alone, the number of journalism jobs has been sliced in half over the same period, according to the San Francisco Bay Area Journalist Census, which released numbers last month.

Meanwhile, public access litigation has taken a plunge as budgets shrink and newsrooms are forced to cut back, said Mark Caramanica, the Freedom of Information Director at RCFP. “Historically, newspapers have led the fight in open government battles and have had the resources to fight those battles for the benefit of the public. When the media can no longer afford to do that, it represents a danger for all in terms of keeping the government accountable and open.”

Last November, RonNell Anderson Jones, a Brigham Young University law professor, published a study about how the financial decline of traditional newspapers is impacting public records law. Here are a few highlights, based on information from the National Freedom of Information Coalition Survey:

• Of the media attorneys polled, about 80 percent said they saw a decrease in public access litigation from 2005 onward.
• About 60 percent said that this kind of litigation had “fallen dramatically.”
• When asked whether the decline in public access litigation would continue, 85 percent of the media attorneys said yes.
• Anecdotal evidence explained papers are cutting back when it comes to expenditures and overall willingness to pursue public access litigation.

Not to rub it in, California, but Florida’s Office of Open Government mediates this stuff “so no one has to go to court to resolve those things,” said its director, Carolyn Timmann. And when records disputes fall out of Timmann’s jurisdiction, requesters can go to the state attorney general’s office.

In the words of Tina Fey's alter ego Liz Lemon, I want to go to there. (The only way California’s attorney general can go to bat over a sunshine dispute is if the attorney general’s office requested the information.)

Local ordinances aren’t much comfort either. San Francisco created its own Sunshine Ordinance 17 years ago and included an enforcement panel. Unfortunately, although the panel has found 27 instances of serious violations, they’ve all either been dismissed or left to rot in the Ethics Commission’s bureaucracy, as The Bay Citizen's Scott James reported.

I’m not the only one complaining about the lack of mediation in California. The state’s Joint Legislative Task Force on Government Oversight filed a report in 1998 calling CPRA ineffective largely because it lacks an enforcement mechanism to contest noncompliance, short of filing a lawsuit. The report, which is no longer available online, was called “Keep Out: The Failure of the California Public Records Act.” It found that CPRA is “routinely violated and rarely enforced,” according to RCFP’s post at the time.

And I thought I was moving to a state full of chilled-out hippies who would just hand over their records and offer me a joint.