Court: Ballot Measure Donors' Names Not Private

PUBLIC INFORMATION — The San Francisco Chronicle reports that Proposition 8 proponents' complaint that a California campaign-finance disclosure law has led to harassment of same-sex marriage opponents failed today to sway a federal judge, who refused to throw out the law or shield donors' names.

Lawyers for Protect Marriage, sponsor of the constitutional amendment that won voter approval Nov. 4, said contributors have already faced consumer boycotts, picketing and even death threats after the state posted their names and other information in mandatory campaign reports.
    They argued that the law requiring disclosure of all donors of $100 or more interfered with the campaign's right to participate in the political process and should be struck down, modified to raise the dollar limits, or at least not applied to contributors to the measure outlawing same-sex marriage.
    But U.S. District Judge Morrison England, after a one-hour hearing in Sacramento, said California's $100 reporting requirement – adopted by the voters in 1974 – is a valid means of informing the public about the financing of ballot measure campaigns.
    "If there ever needs to be sunshine on a particular issue, it's a ballot measure," England said, observing that initiatives are often sponsored by committees with misleading names.

Court: No Right to Post Kids' Pix as Sex Focus

FREE SPEECH — CNET News reports that the California Court of Appeal has upheld a court order to a self-described girl lover with no criminal record to cease posting images of young girls on a website, even if the photographs were taken in public places. Concluding that Jack McClellan had no First Amendment right to place the photos as exhibits in his own pedophilic fantasies, the court's January 15 opinion stated in part:

Publications, even if true, may constitute an invasion of privacy if they are presented in a lurid or indecent manner. Even if photographs are accurate and taken in public places, there can be a cause of action for invasion of privacy when they are exploitative . . .
    For example, in Gill v. Curtis Publishing Co., a happily married couple was photographed in an affectionate pose when they were at their place of business. A magazine used the photograph in an article on different types of love as an example of mere sexual attraction. The California Supreme Court examined the context in which the article was used. The Court held that even though the couple had been in a public place when the photograph was taken, the plaintiffs had stated a cause of action because the use of the photograph could be actionable as an invasion of privacy . . .
    McClellan states that his activities are not illegal. For example, he states that attending public events is not illegal, publishing photographs is permissible, and engaging in public advocacy for those attracted to prepubescent girls is legal. McClellan misses the point.
    McClellan is not prohibited from espousing his controversial views. Rather, he is prohibited from his continuing course of conduct to harass, attack, assault, stalk, and keep under surveillance minor children, as to do so places the children in danger and is threatening to them. McClellan is not prohibited from attending public events, but rather only prohibited from being within 10 yards of any place where children congregate. He is prohibited from tracking young girls by obtaining their addresses or locations so he can post their photographs on his website and he is precluded from recording or publishing any image of any minor child without the parent or guardian's written consent. The prohibited activities are offensive to persons of ordinary sensibilities and threatening. The photographs he posts are not part of a discussion of newsworthy events . . .
    He also presents the children in a false light because the photographs portray the children as being available to pedophiles. The voyeur and stalking nature of McClellan's activities, and his attendance at functions where children congregate, in conjunction with his use of photographs of small children is offensive, frightening, menancing, and not protected by McClellan's free speech or assembly rights.             Although McClellan states that he is being punished for his thoughts and the hostile reaction to them, he ignores the response to the victims of his actions who fear for their safety.
    Further, the protective order did not preclude McClellan from associating with other persons who share his beliefs or with other pedophiles. He is not prevented from discussing his beliefs with others or expressing those beliefs . . .The restraining order and judgment of permanent injunction are affirmed.

Obama Stance on 'State Secrets' to Be Seen Soon

OPEN GOVERNMENT — The Washington Inependent reports that President Obama’s sweeping reversals of torture and state secret policies are about to face an early test.

The test of those commitments will come soon in key court cases involving CIA “black sites” and torture that the Bush administration had quashed by claiming they would reveal state secrets and endanger national security. Legal experts say that the Bush Department of Justice used what’s known as the “state secrets privilege” – created originally as a narrow evidentiary privilege for sensitive national security information — as a broad shield to protect the government from exposure of its own misconduct.
    One such case, dealing with the gruesome realities of the CIA’s so-called “extraordinary rendition” program, is scheduled for oral argument before a federal appeals court in early February. The position the Obama administration takes in this case may be the first major test of its new policies on transparency in government.

Judge Seals Search Warrant for Assessor's Home

PUBLIC INFORMATION — The Press-Enterprise in Riverside reports that a  judge may have violated the First Amendment when he sealed a search warrant involving the San Bernardino County assessor without any explanation, an attorney for a free-speech advocacy group said Monday.

"You need to provide a reason," said Rachel Matteo-Boehm, an attorney for the California First Amendment Coalition, of which The Press-Enterprise is a member.
    On Jan. 14, San Bernardino County Superior Court Judge Douglas Elwell signed a search warrant authorizing authorities to raid 10 locations, including Assessor Bill Postmus' apartment in Rancho Cucamonga.
    Postmus, 37, a former San Bernardino County supervisor, was arrested the next day after investigators said they found suspected methamphetamine and drug paraphernalia in his home. He posted bail the same day and no charges have been filed.
    In his order to seal the document, Elwell stated only that good cause had been shown. The Press-Enterprise obtained a portion of Elwell's order that included that language.

Comments on Pluses, Minuses of Obama Policies

OPEN GOVERNMENT — Enthusiasm and relief tempered by dry-eyed realism marked the reactions of some experienced observers reacting to President Obama's 'Day One" announcement of pro-transparency policies for the executive branch.

Steven Aftergood of the FAS Project on Government Secrecy noted that much of the problem lies outside the Freedom of Informatin Act.

Inevitably, several caveats are in order.  A "presumption of disclosure" really only applies to records that are potentially subject to discretionary release, which is a finite subset of secret government information.  Vast realms of information are sequestered behind classification barriers or statutory protections that remain unaffected by the new policy statements.  "In the face of doubt, openness prevails," the President said.  But throughout the government secrecy system, there is not a lot of doubt or soul-searching about the application of secrecy.
    Unfortunately President Obama's new directives do not yet encompass the needed overhaul of the national security classification system.  That may have to wait another day or two.

Investigative journalist Robert Parry welcomed the reversal of the Bush executive order on the Presidential Papers.

When authoritarian forces seize control of a government, they typically move first against the public’s access to information, under the theory that a confused populace can be more easily manipulated. They take aim at the radio stations, TV and newspapers.   
    In the case of George W. Bush in 2001, he also took aim at historical records, giving himself and his family indefinite control over documents covering the 12 years of his father’s terms as President and Vice President.
    It was, therefore, significant that one of Barack Obama’s first acts as President was to revoke the Bush Family’s power over that history and to replace it with an easier set of regulations for accessing the records.

Clint Hendler, blogging for the Columbia Journalism Review, noted the significance of using an executive order to declare a disclosure bias in Freedom of Information Act policy.

Both the Clinton and Bush executive branch FOIA implementation instructions were issued by their attorneys general via memos, not by a Presidential executive order or directive. Alas, pending Eric Holder’s confirmation, America is running without an appointed attorney general, and that absence would be enough to explain why Obama made the FOIA change via an executive order.
    But it’s worth remembering that an executive order or directive is quite a different thing, both in force of law and in symbolic importance, than a memo from a cabinet official. “An executive order is much stronger medicine. It is a directive from the president to government to do the following unless you’re otherwise prohibited by law,” says David Vladeck, a law professor at Georgetown who has litigated many FOIA cases, and who says he has discussed the administration’s FOIA plans with members of the transition.
    The Ashcroft and Reno memos had great impact, but they merely outlined the extent to which the Justice Department would go in court to defend other branches’ FOIA decisions. And those two yo-yoing memos show how easy it is to revoke guidance via memo.

White House Day One: Transparency Is the Rule

OPEN GOVERNMENT — On the first full day of his administration, President Obama announced several emphatic improvements in executive branch transparency policies. As summarized by the press office:

In the Presidential Memorandum on Transparency and Open Government, and the Presidential Memorandum on the Freedom of Information Act, the President instructs all members of his administration to operate under principles of openness, transparency and of engaging citizens with their government.  To implement these principles and make them concrete, the Memorandum on Transparency instructs three senior officials to produce an Open Government Directive within 120 days directing specific actions to implement the principles in the Memorandum.  And the Memorandum on FOIA instructs the Attorney General to in that same time period issue new guidelines to the government implementing those same principles of openness and transparency in the FOIA context.
Finally, the Executive Order on Presidential Records brings those principles to presidential records by giving the American people greater access to these historic documents.  This order ends the practice of having others besides the President assert executive privilege for records after an administration ends.  Now, only the President will have that power, limiting its potential for abuse.  And the order also requires the Attorney General and the White House Counsel to review claims of executive privilege about covered records to make sure those claims are fully warranted by the Constitution.

The press office also supplied a transcript of the President's introductory comments (video here).

For Immediate Release
January 21, 2009


Room 450
Eisenhower Executive Office Building

1:18 P.M. EST

    THE PRESIDENT:  Hello, everybody.  Please be seated.  Still getting used to that whole thing.  (Laughter.)  Please be seated.  Thank you so much.  I wanted to get everyone together on the first day to welcome you to the White House.

    From our vantage point yesterday you couldn't help but be inspired by the sight of Americans as far as the eye could see.  They were there because they believe this is a moment of great change in America, a time for reinvigorating our democracy and remaking our country.  They've entrusted all of us with a great responsibility.  And so today I'd like to talk with you about our responsibility to keep that trust.

    In a few minutes I'm going to be issuing some of the first executive orders and directives of my presidency.  And these steps are aimed at establishing firm rules of the road for my administration and
all who serve in it, and to help restore that faith in government, without which we cannot deliver the changes we were sent here to make — from rebuilding our economy and ensuring that anyone who is willing to work and find a well-paying job, to protecting and defending the United States, and promoting peace and security.

    However long we are keepers of the public trust we should never forget that we are here as public servants and public service is a privilege.  It's not about advantaging yourself.  It's not about advancing your friends or your corporate clients.  It's not about advancing an ideological agenda or the special interests of any organization.  Public service is, simply and absolutely, about advancing the interests of Americans.

    The men and women in this room understand this, and that's why you're here.  All of you are committed to building a more responsible, more accountable government. 
    But the way to make a government responsible is not simply to enlist the services of responsible men and women, or to sign laws that ensure that they never stray.  The way to make government responsible is to hold it accountable.  And the way to make government accountable is make it transparent so that the American people can know exactly what decisions are being made, how they're being made, and whether their interests are being well served.

    The directives I am giving my administration today on how to interpret the Freedom of Information Act will do just that.  For a long time now, there's been too much secrecy in this city.  The old rules said that if there was a defensible argument for not disclosing something to the American people, then it should not be disclosed.  That era is now over.  Starting today, every agency and department should know that this administration stands on the side not of those who seek to withhold information but those who seek to make it known.

    To be sure, issues like personal privacy and national security must be treated with the care they demand.  But the mere fact that you have the legal power to keep something secret does not mean you should always use it.  The Freedom of Information Act is perhaps the most powerful instrument we have for making our government honest and transparent, and of holding it accountable.  And I expect members of my administration not simply to live up to the letter but also the spirit of this law.

    I will also hold myself as President to a new standard of openness. Going forward, anytime the American people want to know something that I or a former President wants to withhold, we will have to consult with the Attorney General and the White House Counsel, whose business it is to ensure compliance with the rule of law.  Information will not be withheld just because I say so.  It will be withheld because a separate authority believes my request is well grounded in the Constitution.

    Let me say it as simply as I can:  Transparency and the rule of law will be the touchstones of this presidency.

    Our commitment to openness means more than simply informing the American people about how decisions are made.  It means recognizing that government does not have all the answers, and that public officials need to draw on what citizens know.  And that's why, as of today, I'm directing members of my administration to find new ways of tapping the knowledge and experience of ordinary Americans — scientists and civic leaders, educators and entrepreneurs — because the way to solve the problem of our time is — the way to solve the problems of our time, as one nation, is by involving the American people in shaping the policies that affect their lives.

    The executive orders and directives I'm issuing today will not by themselves make government as honest and transparent as it needs to be. And they do not go as far as we need to go towards restoring accountability and fiscal restraint in Washington.  But these historic measures do mark the beginning of a new era of openness in our country. And I will, I hope, do something to make government trustworthy in the eyes of the American people in the days and weeks, months and years to come.  That's a pretty good place to start.

    Thank you very much.  (Applause.)

    (The executive order and directives are signed.)  (Applause.)

News Brought to Light in Public Records . . .

PUBLIC INFORMATION — Disclosures recently made in response to requests under the California Public Records Act reveal that:

  • the Bell Gardens police chief, despite the city attorney's warning that a bid for the city's towing business was legally tainted by a side offer of a gift to the police department, awarded the contract to the suspect bidder, reports LA City Beat.
  • the rate of sudden deaths increased six-fold in the first year that California law enforcement agencies deployed the use of stun guns, according to a University of California, San Francisco research paper reported in Digital
  • an employee of the Los Angeles County Department of Animal Care and Control was recorded on video dragging an injured dog at the Baldwin Park shelter, reports Kate Wooddviolet on