CALIFORNIANS AWARE

OPEN GOVERNMENT FREE SPEECH PROTECTED REPORTING

April 13, 2017

Senator Ricardo Lara

California State Capitol, Room 5050
Sacramento, CA 95814
RE: SB 244 OPPOSE

Dear Senator Lara,

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).

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
towardor discrimination againstindividuals 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 applicants 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 benefitsand are
correspondingly forbidden to disclose who has been either granted or denied a benefit
based on such criteriaimplies 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 Hoovers 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,
2218 Homewood Way Carmichael, CA 95608 916 487-7000 info@calaware.org www.calaware.org


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April 13, 2017
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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 publics 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
2218 Homewood Way Carmichael, CA 95608 916 487-7000 info@calaware.org www.calaware.org


SB 244 -- OPPOSE
Californians Aware
April 13, 2017
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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 access
to information concerning the conduct of the peoples business . . . Far from
furthering these purposes, SB 422 would provide no access to information
concerning the conduct of the peoples 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 bills 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 individuals freedom from governmental
dossier-building and the right of the people to be aware of significant public
information.

I would be happy to answer any questions you may have on this matter.

Sincerely,

Terry Francke
General Counsel

cc: Senate Judiciary Committee

2218 Homewood Way Carmichael, CA 95608 916 487-7000 info@calaware.org www.calaware.org