Well, next to no one. Joyce Terhaar, executive editor of The Sacramento Bee told readers the other day, “I didn’t realize we were making history when The Bee and Los Angeles Times joined forces to sue the state Assembly to force disclosure of documents detailing its spending. . . First Amendment expert Karl Olson, a San Francisco attorney who frequently works with The Bee and other newspapers, told me he can’t remember a similar lawsuit against the Legislature, or find any such published cases involving the media.” In fact there’s just one published appellate case dealing with the Legislative Open Records Act (LORA), seeking information on labor aspects of a Capitol construction contract. And there’s good reason why the LORA is almost never taken to court.
The simple fact is that those who know enough about doings under the Capitol to have an idea of what information may be on file, and what to ask for, and who have a big enough stake in finding out, have an even bigger stake in business as usual, and in particular in getting along. Almost anyone with business or other interests riding on the success or failure of a certain bill—or its slight amendment—that could suffer from a chill imposed by the leadership, quietly and untraceably, at any number of points, will not want to risk that outcome. And almost anyone with no such fortunes hostage to legislative favor—truly insulated from official retaliation—are so much outsiders that they have no notion of what information the Legislature possesses beyond what is already online or freely available in the Bill Room (and may actually be unaware of that much). Asking for records would not occur to most of this majority, to say nothing of suing for access to it.
That leaves the press, with agents close enough to the process to know what information may be in the public interest, and with constitutional protection from being simply shut down as a penalty for nosiness. But while individual newspapers that sue may be beyond the reach of heavy-handed reprisal, their advocates in Sacramento are not. As noted here earlier, not long after the Bee and the Times filed their LORA action against the California Assembly, two bills sponsored by the California Newspaper Publishers Association suddenly hit the wall in the Assembly Appropriations Committee. The losers were not newspaper publishers but their readers, and the improvements in transparency that were stalled if not killed would have made the posting of local government meeting agendas and the “reporting out” of actions taken in closed session a constitutional mandate no longer dependent on the state treasury, and would have assured public access to information about new lawsuits and prosecutions in court on a daily basis, ending the weeklong (or worse) delays caused by the judicial branch’s notorious new computer system.
As with the fate of whistleblowers in the work world, retaliation of this kind would be next to impossible to prove, but proof is not needed in any case. Few in the Capitol community miss noticing the sequence and reaffirming the lesson to be learned. Yes, the LORA can be enforced by a lawsuit to compel disclosure of information that legislative leaders want to keep hidden. But it will never be used by those most knowledgeable about where the bodies might be buried because they have to go along to get along, and that has never involved suing those who run the place.