Public Forum Law Week in Review: 5/19/08

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(CalAware Weekly comprises this plus the three previous posts)

Free Press

For News Reporters, FOIA Is Often a ‘Cruel Joke’
An article by the New York Times’s public editor explains the newspaper’s protracted and costly struggles behind the scenes to use the Freedom of Information Act to discover what the federal government is doing or knows about.

Open Government

Hentoff: All Should Know of ‘Secret Law’ Hearing
Veteran Columnist Nat Hentoff, writing in the Washington Times, explains why he believes that “So important was an April 30 hearing before the Senate Judiciary Subcommittee on the Constitution that it should have been on front pages around the country.” Titled "Secret Law and the Threat to Democratic and Accountable Government" and chaired by Senator Russ Feingold (D-WI), it focused on an issue ignored by the presidential contenders that has deeply weakened our rule of law. See the transcripts, view the webcast here.

Editorial: No Secrecy Arrangement with Refinery
The Contra Costa Times notes in an editorial that the Richmond City Council last week agreed to hire an outside expert to review the Chevron refinery’s application for permission to replace its hydrogen plant, power plant and reformer.  The consultant’s role would be to determine whether approval would lead to processing of heavier crude and determine the health effects, but the city has agreed to allow him to enter into a confidentiality agreement with Chevron to see documents he needs to complete his investigation. Says the newspaper, “ If Chevron wants approval of its expansion, it’s application should be subjected to full public scrutiny.”

Seats Coveted on San Francisco’s Sunshine Panel
Fog City Journal reports that two veteran members of the San Francisco Sunshine Ordinance Task Force, the 11-member body that monitors how well or poorly city officials, employees, agencies, and policy and advisory bodies comply with local and state open-meetings and public-records laws, were in tight competition with two contenders to replace them; the positions are subject to appointment by the board of supvervisors.

City Wipes Tape of Staff Meetings on 4-Day Week
The Victorville Daily Press reports that when it asked to view the videotape of recent city staff meetings at which a new four-day workweek plan was announced, which included “interesting comments by senior city staff,” it was told the tapes had been erased. A city spokesperson said that the tapes were made for the benefit of city employees who missed the meetings, and because almost all showed up, city officials “decided it would be too difficult to edit the tapes and have since deleted all footage.”

Costs of Secrecy about Violence-Prone Officers
The San Francisco Chronicle reports that “Kelly Medora, a petite preschool teacher who weighed about 118 pounds, went out with a friend in North Beach one Saturday night in 2005 for some fun.” But on the way a San Francisco police officer, said to weigh more than twice as much, “arrested her for jaywalking, twisted her arm behind her back and broke it with an audible crack.”  Never admitting any wrongdoing, the city recently gave Medora a check for $235,000—its largest settlement on record of a lawsuit alleging excessive force other than with a weapon. State law makes officer misconduct complaints and investigations strictly secret, even when the investigations confirm the complaints, leaving lawsuits and criminal prosecutions as the first and only window on rogue behavior.

Public Information

Public Records Disclose . . .
• that more than 6,000 Los Angeles city employees are paid more than $100,000 per year, according to the Daily News. “City workers’ average salaries will reach about $68,850 for civilians and $93,800 for sworn police and fire by July—placing them in the upper ranks of comparable cities and far higher than private-sector workers,” the report says.

Free Speech

‘Elated’ Nonlawyer Gets Appellate Win Published
The San Diego Union-Tribune reports the rare triumph of a layperson successfully representing herself in the court of appeal, and getting the court’s opinion published as precedent.  The issue in Evans v. Evans?  A trial court order broadly barring her from publishing on the Internet allegedly false and defamatory statements, or “confidential personal information,” about her ex-husband, a deputy sheriff.

UC Campus Speech Policy Disfavors ‘Nonaffiliates’
The UC San Diego Guardian reports that a new set of proposed rules governing speech on all University of California campuses, originating in the office of the system’s president, would mean among other things that no “nonaffiliate” (person from the off-campus world would be permitted to gather or demonstrate on university property without prior approval. Members of the public would  also be barred from distributing leaflets or advertisements without authorization, and violation of the policy could result in a misdemeanor offense.

State Senate Votes to End Communist Party Ban
The Sacramento Bee reports that the state Senate last week passed legislation that would end membership in the Communist Party as a reason for firing a public employee, a Cold War-era party affiliation hurdle now remaining on the books only in California.

Court: No Protection for Dissenting College Prof
The American Association of University Professors reports that it and the Thomas Jefferson Center for Free Expression have filed an amicus curiae brief supporting the appeal of a federal court decision holding that no First Amendment protection exists for a veteran UC Irvine Professor who was denied a merit salary increase because, while participating in faculty governance, he allegedly angered university administrators by opposing certain faculty hiring and promotion decisions as well as the university’s use of lecturers in place of professors.

Court: No Right to Be Free of School Uniforms
Education Week magazine reports that the U.S. Ninth Circuit Court of Appeals, in an opinion triggered by a Las Vegas school district but applicable to California, upheld a mandatory school uniform policy in the face of a multi-pronged First Amendment challenge.

Border Group Dropped from Highway Program
The Associated Press reports that lawyers for the San Diego Minutemen group have told a federal judge that the state had no right to rescind its invitation to join a roadside litter cleanup program after state legislators complained to CalTrans. The group asked that its blue Adopt-a-Highway sign be put back where it had stood without incident for about six weeks until the agency removed it in January.

Mall Ordered to Pay PETA for ‘Trespass’ SLAPP Suit

People for the Ethical Treatment of Animals (PETA) reports that the San Diego Superior Court has ordered Fashion Valley Mall to pay it the $63,525 in legal fees it spent fighting a SLAPP suit that the mall brought against it. After a PETA demonstration last year urging shoppers to boycott the Burberry store in the mall because the company uses fur in its clothing, the mall sued PETA, alleging that the protesters had trespassed, and sought damages for profits that the mall claimed it had lost because of the demonstration.

DA: Photographing Water Polo Player Players No Crime
The Associated Press reports that after a four-month investigation, Orange County prosecutors have announced they will not bring any charges against two men who took pictures of teenage water polo players which were then posted on gay porn sites. The district attorney’s office investigated the case for four months, but found that no offenses had been committed.

Whistleblowers

Guards First Warned of UC Bomb Lab’s Security Flaws
Six years ago two security officers at the University of California’s Los Alamos National (nuclear weapons) Laboratory wrote a memo that “showed that, among other things, more than 200 computers were missing from the Lab—including from top secret black programs,” according to the Project on Government Oversight (POGO). When the memo leaked, the two were fired, later winning more than $1 million in settlements from UC. Now POGO reports that at UC’s other weapons lab in Livermore just weeks ago, “government mock terrorists tested the security, defeated the protective force and gained access to their target—simulated special nuclear materials.”

Open Meetings

Lawyer Files Second Lawsuit against School Board
The Watsonville Register-Pajaronian reports that lawyer Luis Alejo has filed a second lawsuit this year against the Pajaro Valley Unified School District, alleging the school board violated the Brown Act when it approved contracts for several superintendent positions in a closed-session meeting. In February he sued the district for failing to provide the public with a copy of its response to a June 2007 grand jury report in a timely manner.

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We learn from the Orange County Register that no fewer than nine aspirants hoping to be appointed as indicted  former Sheriff  Mike Carona’s replacement for the remainder of his term will be interviewed in a marathon all-day session of the board of supervisors from 9 a.m. to 8:40 p.m. on Tuesday, May 27.   

The nine have been shortlisted from a total applicant list of four dozen. Each will be allowed a five-minute introductory statement and then face fifty-five minutes of questions from supervisors. The public will get an hour to make its own comments after the last interview. Although the names will mean little to those outside the area, there’s an impressive spread of experience in the finalist pool:

  • the current acting sheriff and a lieutenant from the Orange County department, as well as a (woman) retired division chief;
  • undersheriffs of the San Bernardino and Salt Lake County sheriffs’ departments;
  • a Los Angeles County sheriff’s commander; and
  • police chiefs of Glendale and Santa Ana, and a deputy chief of Anaheim.

The Register story puts most emphasis on the disagreement among supervisors as how to keep the interviews fair.  It leaves certain questions unanswered.

1. Why the fuss about keeping the candidates who have not yet been interviewed from being in the room to hear their rivals’ responses?  It’s not as if there are “right” answers to be learned, to the advantage of the later interviewees.  It’s not even as if supervisors will be asking the same questions of all candidates.

2. If they were so concerned about this, why did the supervisors announce the interview sequence in advance?  Why not draw straws on the spot?

3. The supervisors had no choice but to conduct the interviews publicly, since the Brown Act does not permit discussion of candidates for or occupants of an elective office in closed session.  But why not do this with any and every governmental chief or senior executive position (city manager, county executive, school superintendent, police chief, etc.)? This level of appointment is the single most important decision local elected officials are likely to make, and they cannot be held accountable for it if the discussion and selection are in a black box. The array of rank and talent showing up to be considered for the sheriff’s job at present gives the lie to the notion that the best men and women for the choicest public jobs will simply not come forward to be considered in a public setting. If they are given no choice, schedule it—and the capable will come.  Those who shrink from the exposure probably have good reasons for doing so, and are best excluded.

4.  If this is to be a one-day grind, why do it on a Tuesday when the working public is at work?

5.  Instead of (or in addition to) the one-hour public comment period at the end of the session at night, why not let members of the public submit questions to be posed by the supervisors?  They could be limited in number, screened for relevance, originality, etc.

6. But most interestingly, notice how transparent this appointment’s process is compared with the one that the courts have said must protect the governor from public awareness when he is mulling applicants to fill out the term of a county supervisor.  For example, when the Los Angeles Times wanted to know just the names and self-submitted background information about those seeking Governor Pete Wilson’s appointment to the seat of a resigned Orange County supervisor after the county’s meltdown into bankruptcy in the 1990s, a two-judge majority of the California Court of Appeal found a greater public interest in secrecy Wilson v. Superior Court (Los Angeles Times), 51 Cal.App.4th 1136 (1996) to protect Wilson’s “deliberative process.”  Observe the same tired and utterly speculative arguments as to why no person of quality would step forward in a public probing of his or her qualifications:

The applications are predecisional documents whose sole purpose is to aid the Governor in selecting gubernatorial appointees, a process which depends upon comparison of the qualifications of the candidates as shown in the applications and confidential, candid discussion of the candidates’ professional competence, political views and private conduct.
    The application form itself solicits highly personal and occasionally embarrassing information regarding the applicant’s background, political beliefs and associations. This includes medical history and financial information otherwise protected by the constitutional right of privacy. An applicant answers candidly with the expectation that his or her responses will remain confidential.
In support of the Governor’s opposition to the Times’s petition, the Governor’s appointments secretary, Julia Justus, stated that both the candidates and those who provide information about them are assured that any information provided will be divulged only to the Governor and his senior staff. This assures that applicants will be forthcoming and enhances the Governor’s ability to attract the most qualified applicants and to make educated and informed choices in selecting his appointees. Were that not the case, the pool of qualified applicants would quickly dwindle, the remaining applicants would not provide candid or truthful responses, and the public would not be assured of the qualified public servants to which it is entitled.

As noted by many, including the dissent in this case, the court was not faced with having to order disclosure of medical and other truly personal information; all that could have been redacted from the records to be released.  Privacy had nothing to do with the decision. There’s a much simpler explanation for Occam’s Razor to pare down to here. 

Appellate judges are appointed by the governor in an entirely secret process.  Most (two out of three in the Wilson appellate panel, and all three in the same–issues/same-result case involving a supervisor vacancy in Butte County, California First Amendment Coalition v. Superior Court (Wilson), 67 Cal.App.4th 159 (1998)) probably identify readily, instinctively and entirely with those who are seeking public office without public involvement or even awareness—even when the public office in question is normally filled after the disclosures involved in public campaigning pitched at a democratic, not executive, decision. 

Getting Sunshine on Public Pay Bargaining

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Recently an op ed piece by Peter Scheer, executive director of the California First Amendment Coalition, suggested that the Legislature could help citizens keep public safety (police and fire) employee union pay and benefit agreements in prudent check—and thus reduce the risk of municipal bankruptcies like Vallejo’s—by removing some or all of the secrecy that is permitted by the open meeting laws to surround the negotiation of such agreements.  As it now stands, he said,

the Brown Act, the state’s open-meetings law, carves out a huge exception for negotiations with public employee unions. The combined effect of this exception, and separate provisions of the labor code, is to close the door, pull down the shades and turn off the lights on virtually all decisions relating to employee compensation and other terms of union contracts. By the time the public gets to see the compensation provisions, it is already a done deal—indeed, any effort to change the terms likely would be a breach of the contract.

The prescription suggested is to roll up the metaphorical shades in favor of legislatively created sunshine.

Vallejo, whose city council voted May 6 to seek bankruptcy protection, would be the first California municipality to declare bankruptcy in the current economic downturn; others are likely to follow, unfortunately. These debacles are sure to have repercussions in Sacramento, as legislators consider measures to prevent cities from reaching the financial abyss into which Vallejo has fallen.
Of all the steps they could take, the most important would be to end the secrecy surrounding public employee contract negotiations.

Although getting more sunshine on bargaining with local public safety employee unions (by amending the Brown Act) would be pretty daunting, since their clout in Sacramento is at least as strong as in any city hall, there are three facts to take into account.

1. There is a precedent and model for creating a window on what agreements are being proposed.  It now governs school employee bargaining only, but at least shows how public awareness could be built into the process:

Government Code Section 3547.
(a) All initial proposals of exclusive representatives and of public school employers, which relate to matters within the scope of representation, shall be presented at a public meeting of the public school employer and thereafter shall be public records.
(b) Meeting and negotiating shall not take place on any proposal until a reasonable time has elapsed after the submission of the proposal to enable the public to become informed and the public has the opportunity to express itself regarding the proposal at a meeting of the public school employer.
(c) After the public has had the opportunity to express itself, the public school employer shall, at a meeting which is open to the public, adopt its initial proposal.
(d) New subjects of meeting and negotiating arising after the presentation of initial proposals shall be made public within 24 hours. If a vote is taken on such subject by the public school employer, the vote thereon by each member voting shall also be made public within 24 hours.
(e) The board may adopt regulations for the purpose of implementing this section, which are consistent with the intent of the section; namely that the public be informed of the issues that are being negotiated upon and have full opportunity to express their views on the issues to the public school employer, and to know of the positions of their elected representatives.

Government Code Section 3547.5.

(a) Before a public school employer enters into a written agreement with an exclusive representative covering matters within the scope of representation, the major provisions of the agreement, including, but not limited to, the costs that would be incurred by the public school employer under the agreement for the current and subsequent fiscal years, shall be disclosed at a public meeting of the public school employer in a format established for this purpose by the Superintendent of Public Instruction.
(b) The superintendent of the school district and chief business official shall certify in writing that the costs incurred by the school district under the agreement can be met by the district during the term of the agreement. This certification shall be prepared in a format similar to that of the reports required pursuant to Sections 42130 and 42131 of the Education Code and shall itemize any budget revision necessary to meet the costs of the agreement in each year of its term.

The California Supreme Court has commented on this approach favorably: "Thus, although the public is excluded from actual negotiating sessions . . . its opportunity to be fully informed and to express its views is preserved."  San Mateo City School District v. PERB, 33 Cal.3d 850, 864 (1983).

2. There is no exemption from disclosure under the California Public Records Act or any other statute for draft agreements or other bargaining-related communications between public agency employers and their employee unions.  When asked, cities and other local agencies may claim these documents are confidential as "drafts" or otherwise, and most requesters will settle for that.  But even the draft exemption exempts only the "recommendatory opinion" of a document’s author—not factual material such as what terms are actually being proposed. Citizens for a Better Environment v. Department of Food & Agriculture, 171 Cal.App.3d 704, 717 (1985).   And of course the only records connected with employee bargaining whose disclosure would hamper the agency’s position would be the consultative exchanges between the governing body and its own bargaining agent—not the information shared with or received from the bargaining adversary.

3. There is no need to await legislative amendments to state law in order to adopt a local public disclosure and involvement protocol. A city council or other governing body could adopt procedures mirroring the Government Code Sections above affecting school boards—or take a simpler approach.  The San Francisco Sunshine Ordinance, for example, enacted in the strongest labor town in the state, provides in Section 67.12. (b) (5), "Collective Bargaining: Any collectively bargained agreement shall be made publicly available at least 15 calendar days before the meeting of the policy body to which the agreement is to be reported."

Farm Bill Makes Subsidy Recipient Data Secret

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A watchdog on agriculture, farm policy and food safety reports that a provision—quietly tucked into the Farm Bill Conference Report (Sec. 1619, "Information Gathering") without public hearings or debate during the conference committee process—nullifies a recent, major federal appeals court decision under the Freedom of Information Act that ordered USDA to make public large amounts of data crucial to monitoring the economic and environmental impacts of multi-billion-dollar farm subsidy and conservation programs. The information to be made secret includes data submitted by subsidy applicants about their ag operations to show that they qualify for the subsidies.

The sneak secrecy insertion in a conference committee report—never part of the actual House or Senate bills—was accomplished despite Speaker Nancy Pelosi’s pledge on taking office to “protect the public’s right to know, strengthening the Freedom of Information Act.”  Small “home farm” advocate Mary-Louise Zanoni comments in an e-mail, “on closer inspection, note that this sec 1619 not only negates (the recent court decision), but generally tries to create a GIANT FOIA exemption for all information submitted by farmers for participation in ALL  USDA programs.”

Last November Californians Aware joined 27 other organizations in a letter asking Senators to drop a different provision in the Senate version of the Farm Bill, intended to “create an unnecessary bar to public disclosure and use or publication of information related to the National Animal Identification System (NAIS).” CalAware learned late last month that at the insistence of Senator Patrick Leahy (D-VT), the issue was dropped from the bill.

Public Forum Law Week in Review: 5/9/08

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(CalAware Weekly comprises this plus the three previous posts)


Free Press

Public Defender Defends Subpoena to Newspaper     
Writing in the Santa Barbara Independent, County Public Defender Gregory C. Paraskou insists that his deputy’s subpoena to the Independent for unpublished photographs for possible use as defense evidence in a murder case should not have been compared in a column as akin to the Bush Administration’s incursion into rights protected by the First Amendment.

Open Government

E-mail Expert Calls for Special Prosecutor     
Zatz Publishing, producer of special-interest online magazines and books for technical consumers and information technology professionals, has announced the publication of its latest special report on the White House e-mail controversy: “It’s Time for a Special Prosecutor.”  Authored by David Gewirtz, ZATZ editor-in-chief and the author of Where Have All The Emails Gone?,  this latest report spotlights what it calls “the increasingly apparent examples of massive negligence within the White House Office of the Chief Information Officer, this time resulting in evidence that the White House has irrevocably broken at least two key federal laws: the Presidential Records Act and the Federal Records Act.” 

Public Information

Transparency Activist Challenges Fund Decision
The Daily Bulletin in Ontario reports that open-government advocate Richard McKee—president emeritus of Californians Aware—has requested public documents from Los Angeles County administrators, citing concern that a rule change excluding a Claremont project from affordable-housing funds was made improperly.

Student Wants to Know Bookstore’s Markups    
The Sacramento State Hornet reports that a senior government major wants to propose an amendment to the California Public Records Act making the textbook price markups applied by the campus bookstore operators available as public information and, not, as the university’s lawyer insists, privileged trade secrets.

Court Accused of Putting Private Data Online 
   
Computerworld magazine reports that privacy advocates claim that Social Security numbers, medical histories, tax records, bank account data and other sensitive personal data are freely available online via the website of the Superior Court in California’s Riverside County.

Free Speech

Internet Archive Gets FBI to End Secret Demand     
The San Francisco Chronicle reports that in a rare if not unprecedented reversal, the proprietor of the nonprofit Internet Archive has caused the FBI to withdraw its secret demand for records of all communications with one of his patrons as part of an investigation of "international terrorism or clandestine intelligence activities."

Editorial: Teacher Loyalty Oath an Anachronism     
The Sacramento Bee says in an editorial that SB 1322 by state Senator Alan Lowenthal (D-Long Beach) would eliminate membership in the Communist Party as a reason for dismissing a public employee, noting that California is the only state that allows public employees to be dismissed for membership in a political party. Meanwhile the Los Angeles Times reports that the Quaker teacher who lost her appointment as a Cal State Fullerton lecturer after she objected to the loyalty oath submitted a revised statement of her beliefs yesterday in a bid to win the job back.

Whistleblowers

FBI Raids Offices of Federal Whistleblower Guardian
The Los Angeles Times reports that Federal agents Tuesday swarmed the home and office of the Bush administration official responsible for protecting government whistle-blowers, part of an investigation into whether the official retaliated against his employees and obstructed justice.

Open Meetings

Editorial Criticizes Mayor’s Veto of Taping Proposal   
An editorial in the San Francisco Bay Guardian urges the Board of Supervisors to override Mayor Gavin Newsom’s veto of a proposal to audiotape or videotape any meeting of any public agency at City Hall and post the tape on the Internet within 72 hours—for the benefit of citizens whose day jobs don’t permit them to attend the meetings.

Court Asked to Limit 'Mental Processes' Decision

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A trio of nonprofit organizations led by Californians Aware (CalAware) is asking the California Supreme Court to order the depublication of a controversial decision of the California Court of Appeal concerning access to government records.  Depublication would leave the decision in place, binding the parties to the case, but would remove its force as precedent to guide other cases.

CalAware, the California First Amendment Coalition and the California Newspaper Publishers Association contend, in the letter composed and signed by Los Angeles attorney Dennis Winston—CalAware’s secretary-treasurer—that the opinion of the Court of Appeal for the Sixth District in Sutter’s Place v. Superior Court contains unnecessary and erroneous language, and in particular needlessly belittles the effect of Proposition 59 on the California Public Records Act (CPRA). 

The plaintiff in the underlying case, a cardroom, made a discovery request for a host of documents, intending to show that the San Jose City Council approved restrictions on its operating permit that were deliberately designed to limit and eventually ruin its business.  The city argued, and the trial court agreed, that a constitutionally-based “mental processes” privilege precluded access to evidence of the councilmembers’ motivations, which in any event could not be used to attack decisions that otherwise complied with the law.

In challenging this ruling before the Court of Appeal, the cardroom argued among other things that Proposition 59 had effectively repealed a superficially similar privilege—for executive decision-makers’ “deliberative processes”—that had been recognized as supporting an exemption from disclosure under the CPRA.  The Court of Appeal decided to the contrary and then some: that Proposition 59 not only did not eliminate deliberative process as a basis for withholding records, but really had no substantial effect on interpretation of the CPRA.

The request for depublication argues that the whole CPRA/Proposition 59/deliberative process line of reference is a red herring—one that conclusively and summarily answers questions that never needed to be addressed in order to decide whether the city’s documents were privileged from discovery as a shield from attack on the councilmembers’ “mental processes.”  But leaving the opinion in Sutter’s Place on the books would be not only unnecessary but also damaging to Proposition 59’s rule that doubts arising in the interpretation of open government laws be resolved in favor of access, the letter says:

In short, the result of allowing the Opinion to remain published will likely be to see it invoked as a basis for public agencies rejecting every request for public records that, in the view of the agency, touches upon the “deliberative process.”

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The California Senate on April 28 passed, on a bipartisan 38-0 vote, a bill that would allow government agencies responsible for receiving  candidates’ and officials’ Form 700 statements of economic interests (SEIs) to allow their being filed electronically.  SB 1204 by Senator Jeff Denham (R-Modesto) would leave in place the current requirement that the information be available to citizens upon request in the current paper format as well.

Lest there be any raised expectations, however, the bill serves the convenience of the filing officials, not that of the public seeking to check the information.  The staff consultant for the Senate policy committee that first approved the bill had this to say in his analysis:

This bill makes various legislative findings and declarations regarding the electronic filing  of SEIs, including the following . . .

(g) Electronic filing can be a safe, secure, and efficient method of completing, filing, and retaining Form 700s for state and local public officials and at the same time grant viewing capabilities by the general public at the location of the filing officer, public kiosk areas, and local libraries with the ability to print a copy for statutory fee.

Finding . . . (g) above refers to granting viewing capabilities by the public at, among other places, public kiosk areas and local libraries even though this bill does not require  or otherwise address online access to the electronically filed SEIs.  The author and committee may wish to consider whether these two findings should be deleted or  otherwise amended accordingly.

The bill was then stripped of the references to the convenience of the public.  Under general provisions of the California Public Records Act, a local and/or statewide watchdog could still probably request and obtain digital copies of those Form 711s that had been filed electronically, and could post them on the Internet.  But the fact that one would have to go to that much trouble to make anti-corruption checks easy for the citizenry says something about lawmakers’ zest for such transparency.  And of course no one should be surprised if the creation of such a watchdog site deterred officials from filing electronically, which SB 1204 leaves a strictly voluntary option.