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March 9, 2013
Editorial: Public's right to know is too basic to risk. We shouldn't need to fight over payments just for following the law

(March 9 -- By the Editorial Board)

It should be a given: Local governments have to tell the public what's on the agenda for meetings and provide public records.

Yet like so many things in California, it can get very convoluted. While the core of the state's open government laws is beyond dispute, there's a fight over, what else, money - specifically, reimbursements from the state to local governments for the costs of some procedural mandates to make the laws work better.

The public's right to know is getting caught in the crossfire.

While local officials pledge to comply even without a state mandate, there's no getting around the risk that some might not - and that scofflaws are more likely to be the ones with something to hide.

This issue is a reminder that freedom of information must be continually safeguarded - the goal of "Sunshine Week," the annual effort led by journalism and civic groups that starts today. Instead of squabbling, state and local officials ought to be making it easier for citizens to watch their government, including more online access.

Under Proposition 1A, sponsored by local governments and overwhelmingly approved by voters in 2004, the state must reimburse cities, counties and special districts for the costs of mandates it hands down - or suspend the mandates. Local governments had been billing the state more than $20 million a year to cover their costs under the Brown Act of preparing and posting meeting agendas at least 72 hours in advance and disclosing certain information about closed sessions.

Open government advocates say the reimbursement claims were too often padded. In any case, the money became a ripe budget-trimming target for Gov. Jerry Brown and the Legislature.

Last year, to avoid paying reimbursements, they suspended the public notice mandates. Local governments said they would voluntarily comply. Open-government advocates say they did with rare exception, most notably in San Diego County, where supervisors replaced the chief administrative officer within four hours of his resignation without public notice. Then language was put into Proposition 30, Brown's tax measure that passed in November, to permanently take the state off the hook for Brown Act reimbursements. Lawmakers still need to restore the open meeting mandates.

Now, a similar battle is brewing over procedural provisions in the California Public Records Act.

To avoid reimbursements in his recommended 2013-14 budget, the governor wants to suspend several mandates, among them helping members of the public find records and notifying them within 10 days whether a record can be disclosed.

An obscure, yet powerful, board known as the Commission on State Mandates has ruled that those mandates require state reimbursements. It has not estimated the cost, but the Legislative Analyst's Office says it could reach the "tens of millions of dollars" - a figure open government advocates say is absurd.

The LAO says the Legislature should make the mandates "best practices" that local governments would have to publicly declare whether they would follow. The League of California Cities says that its members are committed to transparency, though, as a matter of local control, some may find more efficient ways to comply with the law.

But Terry Francke, general counsel of Californians Aware, warns that the potential for abuse is higher this time because in many cases only individuals who request public records would know of violations. He argues that Brown's proposal should be rejected.

Peter Scheer, executive director of the First Amendment Coalition, also opposes suspending the public records mandates. He calls for requiring local officials who file a reimbursement request to do so under penalty of perjury to make them think twice about inflating the bill.

Craig Powell of local watchdog group Eye on Sacramento says local governments should adopt ordinances to substitute for the suspended parts of the Public Records Act.

That would be unwieldy, and cities and counties should not be able to opt out of transparency. To keep it a statewide guarantee, legislators should do what Francke and Scheer suggest: Keep the public records mandates, and discourage local officials from overbilling.

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