City Attorneys Agree: Executive Secrecy 'Dubious'

PUBLIC INFORMATION — San Diego's new city attorney agrees with his predecessor, whom he defeated in November: the deliberative process (AKA executive) privilege used to shroud government decision-making is of dubious legal authority after Proposition 59. 

Maybe lower ranks in the city attorney's office literally didn't get the memo, however.  Rob Davis, writing for the Voice of San Diego, reports that they're citing deliberative process to block his information request for records bearing on the development of a questionable water rationing plan.

Update: Davis has just announced
that the Voice of San Diego today gave the city a 24-hour ultimatum to
change its denial position or defend a lawsuit under the California
Public Records Act.

The city argues that the 692 e-mails I've requested are subject to
the "deliberative process privilege." In short, the city claims it must
keep the e-mails secret to protect the officials' decision-making
process. If those officials knew the public would see what they
e-mailed about, the city argues, they'd be less likely to discuss
policy candidly. And the harm that would inflict on the public
outweighs the benefits of being transparent, the city says.

But
the city already turned over some e-mails in which its officials—Alex Ruiz, the Water Department's assistant director and Gerry Braun,
the U-T columnist turned Sanders aide—discuss policy ideas. And it
turned over drafts of some documents in responding to our request,
despite claiming that drafts should be kept secret.

In
justifying its case, the city cites a 1991 court ruling against the Los
Angeles Times
that allowed Gov. George Deukmejian to keep his calendars
secret. That case has since been challenged. The California First
Amendment Coalition sued Gov. Arnold Schwarzenegger for his calendars;
Schwarzenegger turned them over in a pre-trial settlement.

What was different? California voters approved Proposition 59 in 2004. The ballot argument for the ballot measure said:

Proposition
59 is about open and responsible government. A government that can hide
what it does will never be accountable to the public it is supposed to
serve. We need to know what the government is doing and how decisions
are made in order to make the government work for us.

In 2005, former City Attorney Mike Aguirre opined that in the wake of Proposition 59, the Times-Deukmejian case "is of dubious authority."

Aguirre's
opinion said voters had decided that keeping an eye on government
officials outweighed the benefits of keeping their decision-making
process secret. Aguirre's opinion said with the proposition's passage: "Voters
in their law-making capacity appear more concerned about the corruption
secret government makes possible than chilling the discussions amongst
their public officials."

I asked City Attorney Jan
Goldsmith today whether Aguirre's legal opinion was still being
followed. Yes, he said. In an e-mail, Goldsmith wrote:

The Opinion is on our web site and its legal analysis is sound. There has been no change in interpretation.

So,
at the same time that Goldsmith stands behind the opinion, which
concluded the Times-Deukmejian case is of "dubious authority," his
attorneys are citing it to me as the main reason for keeping those 692
e-mails from being disclosed.

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Student's Attorney Fee Award Gets Haircut

FREE PRESS –  A Marin County school district owes a student's attorney a much lower legal bill after illegally censoring the student's article eight years
ago, reports Brian Stewart for the Student Press Law Center.

Instead of the nearly $1.5 million legal bill initially requested by Andrew
Smith — who penned an article in 2001 that was censored by administrators
— a trial court ruled the Novato Unified School District will pay
$336,350 in attorney fees. The California Court of Appeal in San Francisco,
Calif., affirmed that decision May 28.


The only matter left to settle is the amount of interest the school
district will be required to pay on that total, which a trial court will decide
within a few months, said Stephan Birgel, who represented the school
district.


Birgel said the reduced amount was "a good ruling," noting he
felt the requested $1.5 million was "very unrealistic." Birgel said
the figure was high because the plaintiffs had included "a lot of
excess," including charging to rent cars, learning new trial technology,
and claiming six hours of attorney fees for a one-page form.


The lawsuit stemmed from Smith's 2001 editorial titled
"Immigration" in the school's newspaper, the Buzz.
Smith criticized immigration laws, causing some students to protest.
Then-Principal Lisa Schwartz quickly implemented prior review and postponed a
second column by Smith titled "Reverse Racism."


Governor's Sunshine Moves 'Too Little, Too Late'

OPEN GOVERNMENT "Forgive me for not
running to the newsroom parapets with a trumpet when Gov. Arnold
Schwarzenegger finally decided to join the 21st century earlier this
month and order the posting of government contracts and audits online," writes Thomas Peele in the Contra Costa Times.

Imagine that, California government transparency on the Internet. Who'd have thought?

Actually,
a lot of people have. Like every member of the Legislature, every open
government advocate and just about anyone with a computer and a smidgen
of common sense.

So here's the governor, with barely 18 months to
go in office and presiding over a fiscal apocalypse, he finally follows
through on campaign promises to shine a light into California's dark
fiscal corners.

None of what Schwarzenegger did by issuing
executive order S-08-09 earlier this month is a new idea. In fact, he's
twice vetoed bills that would have done more for online transparency.
Now, when California's coffers looking as if John Dillinger just paid
them a visit, he does a little two-step?

In the past,
Schwarzenegger has been nearly Pollyannaish about access. He vetoed
reform legislation in 2006 claiming that access wasn't a problem
because he issued an order telling his bureaucrats to be sure to comply
with the Public Records Act.

If he expected people to believe
that, he might as well have stood on the Golden Gate Bridge telling
tourists he had its deed in his pocket and was taking bids on it.

He claimed that releasing his
appointment calendar after passage of Prop. 59 in 2004 was a sign that
he understood transparency. But what the governor did, in reality, was
gut any chance that advocates had of establishing a clear judicial
interpretation of the meaning of Prop. 59.

Sure,
Schwarzenegger did the right thing by releasing his calendar, but his
decision bound no one else. He didn't even declare that it was the
policy of his administration that the calendars of all officials in
state government were to be released.

Among the ideas the
governor rejected was creating an office of open government, which
could have turned Prop. 59 into a hammer to pound away at openness
issues. The legal meaning of Prop. 59, which amended the state
constitution to require that the government always take the broadest
possible interpretation of disclosure, remains untested and largely
ignored.

Who Owns SF Muni Transit's Schedule Data?

PUBLIC INFORMATION — It's a good thing, writes Joe Eskenazi for SF Weekly, "we've got NextBus.com to tell us when to sprint to the station and when
to saunter. But the question of who owns the actual arrival and
departure data for the trains isn't as straightforward as you might
think."

A representative of the city told us the data belongs to San
Francisco and "was generated by a publicly owned system using taxpayer
dollars." Along those lines, a Mission Bay programmer named Steven
Peterson feels that as a member
of the general public, he had as much right as anyone to create an
iPhone application called "Routesy" and present NextBus data in a
slightly cuter format. Yet the CEO of a two-person company — the other
employee is the COO—told us that he and he alone owns the data on
NextBus.com—and his company's angry e-mails persuaded Apple not to
feature Routesy anymore.

This
is a complicated argument because the fellow claiming he owns the
content of NextBus.com is Ken Schmier, the man who first conceived of
the Muni fast pass decades ago and invented—and patented—the
NextBus system in 1996. Drowning in red ink, however, Schmier sold his
company to a Canadian firm called Grey Island International Systems in
2005 for a piddling $700,000 and around $1.25 million in stock. Here's
the catch, though: While Schmier's current company, Next Bus
Information Systems consists of him and a COO named Alex Orloff—and
that's it—Schmier retains the right to serve as "the agent for the
commercial use of predictive data." What does that mean? Not even folks
employed by the city with many letters following their names are sure,
and it allows Schmier to claim he owns NextBus.com's data.   


In a nutshell, this is not how the city sees things. Judson True, the
spokesman for Muni, states unambiguously that the city owns the
Muni-related data on NextBus.com and NextMuni.com. When asked, then,
how Schmier could possibly demand to be paid for use of this data—as
he did with Peterson, and according to Peterson, the site
MuniTime.com—True says he'll leave answering that question to us. Make of that what you will. Peterson, incidentally, has contacted the Electronic Frontier Foundation to query about taking legal action against Schmier's company.

Meanwhile, SF Weekly
tracked down a source within city government intimately familiar with
the situation who spoke on condition of anonymity. He described
Schmier's current company as merely "a group of shareholders" that has
the right to be "'the commercial representative for the commercial
application of the data'
—whatever that means." What that has meant
so far, according to Schmier, is that he's sold banner ads on
NextBus.com
—a Web site owned by Grey Systems, not him. The total
amount of money brought in this way since 2005: Somewhere between
$5,000 and $10,000.

"Mr. Schmier is trying to make a buck.
That is what we think," said the city source regarding Schmier's claims
to NextBus data. "Contrary to the information Mr. Schmier is feeding
the media … the MTA spent years getting this system to work. The
reason it took so long to roll out is it didn't work. Mr. Schmier had a
good idea, but he didn't have the technical know-how to make it work."

*****
In the meantime, it warrants mentioning that the
nine-year-old contract between the city and NextBus is in the final
stages of a revision — our city source expects it to be completed
within weeks. It will be interesting to see what mention there is
—if
any
—of Schmier and his "right to be the commercial representative
for the commercial application of the data."

HBO Documentary Reviews Recent Speech Fights

FREE SPEECH — "Shouting Fire: Stories from the Edge of Free Speech" airs tonight and later again this week on HBO as a reminder that freedom of speech as a constitutional bulwark is re-won in every generation by those whom most of us would prefer to shut up.

As described by HBO, the 74-minute documentary

examines the balancing act between protecting civil liberties and national security in a post-9/11 world, asking whether all speech is equally free. (Producer Liz) Garbus' primary tour guide in navigating this perilous landscape is her father, noted First Amendment attorney Martin Garbus, who applauds "the idea that you can have a country where anybody can think anything, say anything, create anything," calling it "a miracle." The documentary looks into his own experiences as a First Amendment lawyer, including the Pentagon Papers case and his defense of a neo-Nazi group's right to protest.

"Shouting Fire: Stories from the Edge of Free Speech" examines the case of Ward Churchill, a tenured professor of Ethnic Studies at the University of Colorado, who was fired after writing that U.S. foreign policy abuses were a partial cause of the 9/11 attacks. Dismissed for research misconduct, Churchill later won a lawsuit against the university for unlawful termination of employment.

Liz Garbus also examines the story of Yemeni-American Debbie Almontaser, a veteran of the New York City public school system and founding principal of Khalil Gibran International Academy, the city's first dual-language Arabic-English public school. Almontaser claims she was forced to resign from her job in 2007 after she set off a firestorm by citing the literal definition of the word "Intifada" in an interview with the New York Post. After she left, the Academy opened with a temporary principal who did not speak Arabic. Alleging a witch hunt, Almontaser has filed a lawsuit claiming her First Amendment rights were violated.

The documentary also considers the case of Chase Harper, who was suspended from Poway High School in San Diego for wearing a T-shirt that read "Homosexuality Is Shameful" during a gay and lesbian awareness event. Advocates for Poway High argue that they have the right to censor speech that would disrupt the educational experience of other students.

Finally, Garbus looks at Ruth Benn and Ed Hedemann, who were arrested and detained along with other protesters during a nonviolent demonstration at the 2004 Republican National Convention in New York City. In the process of their defense, lawyers unearthed evidence that their organization and other peaceful groups had been subject to extensive surveillance by the NYC Police Dept.

Water Manager Tries to Shut off (News) Leaks

FREE PRESS — Following a recent meeting with editors of the Antelope Valley Press, Randy
Hill, general manager of the Palmdale Water District, denounced the
newspaper for publishing an internal memo he circulated that alluded to the district's financial woes.  Then, the Valley Press reports, he went after his own staff to stanch future leaks. 

But the e-mail memo threatening them was also leaked.

The e-mail stated: Effective immediately while working for PWD no
employee is to converse, or share information in any way with Antelope
Valley Press
reporter Alisha Semchuck. Anyone contacted by Alisha
should immediately refer her to the General Manager. Failure to follow
this directive will subject an employee to disciplinary action up to
and including termination.

*****

Leaks to the media about dealings at government agencies are nearly
impossible to suppress, according to (Jim) Ewert, legal counsel for the
California Newspaper Publishers Association in Sacramento.

Whether government or corporate whistle-blowing, Ewert called leaks to the media "a time-honored tradition."

Demolishing a communication relationship with the press is equally ineffective, Ewert said.

"He's cutting off his nose to spite his face if he thinks he's going to control the flow (of information)," Ewert said.

Targeting a reporter to be singled out is shaky practice viewed through the lens of case law, Ewert said.

"If they're going to provide access to one media source, they must
provide to all," Ewert said. "They have to treat all media sources the
same." That conclusion falls under the equal protection clause of the
14th Amendment.

Hill, reached for comment by the reporter for this story, said that
singling her out was not the whole intent of his order to cease and
desist from supplying information to the Valley Press.

"It applies to all media," Hill said of his memos. "I just happened to
use your name because you've been the problem," he told the Valley
Press
reporter.

Tenants Have Right to Display Window Signs

FREE SPEECH — A helpful reminder for both landlords and tenants appeared in a recent San Francisco Chronicle, supplied by Project Sentinel: California law doesn't allow the former to censor or penalize the latter based on their display of political signs in their windows.

Attempts to regulate this type of tenant activity should be very
carefully considered. California Civil Code Section 1942.5(c) protects
tenants from retaliatory acts based on their exercise of "any rights
under the law." The "No on Prop. 8" sign you are describing is an act
of free speech and is almost certainly within the scope of Section
1942.5(c).

Since you already allow window signs, it would be difficult for you
to argue that this particular sign is not permissible, unless it
constituted some type of hazard because of its size or placement, or
because of some other specific physical attribute. Deciding which signs
can be displayed based on the content, such as deciding that certain
language is "offensive," means that you are relying on a very
subjective standard, because one person's "offensive" is another
person's "free speech."

The referenced code provision states:

  (c) It is unlawful for a lessor to increase rent, decrease services, cause a lessee to quit 
involuntarily, bring an action to
recover possession, or threaten to do any of those acts, for
the
purpose of retaliating against the lessee because he or she has lawfully organized or
participated in a lessees' association or an
organization advocating lessees' rights or has
lawfully and peaceably
exercised any rights under the law. In an action brought by or
against the lessee pursuant to this subdivision, the lessee shall bear the burden of
producing evidence that the lessor's conduct was,
in fact, retaliatory.