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Californians Aware (CalAware), a nonpartisan nonprofit organization established to combat needless secrecy in government, opposes SB 244, which would create a major new exemption from disclosure under the California Public Records Act (CPRA). CalAware says, in a letter to the bill’s author, SB244 is not needed and would raise concerns about three different provisions of the California Constitution.

With no factual demonstration of abuses or other harms occurring for want of such legislation, SB 244 would make the entitlement of individuals to government services, program, funds or other benefits impossible to evaluate, making waste, fraud and abuse far more difficult to detect. It would also hide governmental favoritism toward—or discrimination against—individuals based on unlawful criteria of selection.

These risks become all the more troublesome because the bill recognizes, but hides from the public, governmental harvesting of information about an applicant’s religion, sexual orientation, and “known or suspected political or organizational affiliations.” The fact that government officials are encouraged to demand or quietly collect such personal information as a valid consideration in awarding public benefits—and are correspondingly forbidden to disclose who has been either granted or denied a benefit based on such criteria—implies a far more disturbing constitutional violation than anything that this bill purports to correct. The reference to “known or suspected political or organizational affiliations” alone evokes either the worst excesses of J. Edgar Hoover’s FBI or the more recent allegations of discrimination by the IRS against conservative nonprofits applying for tax-exempt status.

For almost half a century California officials and agencies have been governed by Article 1, section 1 of the state constitution, protecting individuals from needless intrusion into their private lives by agents of the state. The California Supreme Court early analyzed the purposes of the ballot measure that the voters passed to protect the fundamental right to privacy.

Several important points emerge from (the) election brochure “argument,” a statement which represents, in essence, the only “legislative history” of the constitutional amendment available to us. . . . First, the statement identifies the principal “mischiefs” at which the amendment is directed: (1) “government snooping” and the secret gathering of personal information; (2) the overbroad collection and retention of unnecessary personal information

by government and business interests; (3) the improper use of information properly obtained for a specific purpose, for example, the use of it for another purpose or the disclosure of it to some third party; and (4) the lack of a reasonable check on the accuracy of existing records. Second, the statement makes clear that the amendment does not purport to prohibit all incursion into individual privacy but rather that any such intervention must be justified by a compelling interest. Third, the statement indicates that the amendment is intended to be self-executing, i.e., that the constitutional provision, in itself, “creates a legal and enforceable right of privacy for every Californian.” White v. Davis, 13 Cal.3d 757, 774 (1975) (Emphasis added)

The bill also violates two other state constitutional requirements for any legislation that reduces public access to government information. Proposition 59 of 2004, approved by more than 83 percent of those who voted on the matter, added the following language to Article I, section 3:

A statute, court rule, or other authority adopted after the effective date of this subdivision that limits the right of access shall be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest. (Emphasis added)

Instead of adopting findings “demonstrating” the need for its secrecy mandates, SB 244 makes the following bland and conclusory declaration: “This act strikes an appropriate balance between the public’s right to access information about the conduct of their government agencies and the need to protect the personal information of private individuals who participate in public programs or receive public services.”

The declaration demonstrates nothing. Its wording could be used to justify any limitation of the right of access to information as a correction of an asserted imbalance between that right and “the need to protect (fill in the blank).”

If it could be demonstrated in factual findings that officials were not using the discretion granted them in the CPRA since its passage in 1968 to assert privacy interests as a basis for non-disclosure, e.g. in Government Code section 6254, subd. (a) and/or in section 6255; or were flouting both California and federal laws on educational or medical privacy, for example, SB 244 might be needed. But on the contrary, the bill shows no awareness of the extent of privacy protections throughout the California Codes, every one of which is also a basis for withholding under the CPRA by way of Government Code section 6254, subd. (k).

The other constitutional requirement, added by voters by way of Proposition 42 of 2014, states:

In order to ensure public access to the meetings of public bodies and the writings of public officials and agencies, as specified in [Proposition 59 of 2004], each local agency is hereby required to comply with the California Public Records Act . . . and the Ralph M. Brown Act . . . and with any subsequent statutory enactment amending either act, enacting a successor act, or amending any successor act that contains findings demonstrating that the statutory enactment furthers the purposes of this section. (Emphasis added)

The purposes of Section 3 of Article I are stated to be giving the people “the right to instruct their representatives, petition government for redress of grievances,
and assemble freely to consult for the common good [and] the right of accessto information concerning the conduct of the people’s business . . .” Far from furthering these purposes, SB 422 would provide no access to information concerning the conduct of the people’s business, and would actually reduce such access by flatly prohibiting the disclosure of large segments of information about the administration of government programs, no matter how the public interest in given situations might justify disclosure. This is a radical and fundamental departure from current provisions of the CPRA, which allow for disclosure of personal files if such invasion of privacy is “warranted” by the circumstances (Government Code section 6254, subd. (c). What SB 244 does, in short, is not to balance interests in privacy vs. public awareness, but rather to remove from the law the present authority of officials on the scene and possessed of the facts to engage in true balancing based on particular circumstances.

In summary, some of the bill’s provisions may be harmless. But we believe that there is little in it that is not either duplicative of existing effective protections or consistent with constitutional concerns for both the individual’s freedom from governmental dossier-building and the right of the people to be aware of significant public information.