ARGUMENT in Favor of
Proposition 59
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.
Everyone needs access to information from the government. Why was a building permit granted, or denied? Who is the Governor considering for appointment to a vacancy on the County Board of Supervisors? Why was the superintendent of the school district fired, and who is being considered as a replacement? Who did the City Council talk to before awarding a no-bid contract?
People all across the State ask these questions—and dozens of others—every day. And what they find out is that answers are hard to get.
California has laws that are supposed to help you get answers. But over the years they have been eroded by special interest legislation, by courts putting the burden on the public to justify disclosure, and by government officials who want to avoid scrutiny and keep secrets. Proposition 59 will help reverse that trend.
What will Proposition 59 do? It will create a new civil right: a constitutional right to know what the government is doing, why it is doing it, and how. It will ensure that public agencies, officials, and courts broadly apply laws that promote public knowledge. It will compel them to narrowly apply laws that limit openness in government—including discretionary privileges and exemptions that are routinely invoked even when there is no need for secrecy. It will create a high hurdle for restrictions on your right to information, requiring a clear demonstration of the need for any new limitation. It will permit the courts to limit or eliminate laws that don't clear that hurdle. It will allow the public to see and understand the deliberative process through which decisions are made. It will put the burden on the government to show there is a real and legitimate need for secrecy before it denies you information.
At the same time, Proposition 59 ensures that private information about ordinary citizens will remain just that—private. It specifically says that your constitutional right to privacy won't be affected.
You have the right to decide how open your government should be. That's why Proposition 59 was unanimously passed by the Legislature and it is the reason widely diverse organizations support the Sunshine Amendment, including the American Federation of State, County and Municipal Employees and the League of California Cities.
As James Madison, a founding father and America's fourth President, said: "Knowledge will forever govern ignorance, and a people who mean to be their own governors must arm themselves with the power which knowledge gives." Tell the government that it's ordinary citizens—not bureaucrats—who ought to decide what we need to know. Vote yes on Proposition 59.
MIKE MACHADO, State Senator
JACQUELINE JACOBBERGER, President
League of Women Voters of California
PETER SCHEER, Executive Director
California First Amendment Coalition
REBUTTAL to Argument in Favor of Proposition 59
As an attorney who has attempted for many years to use California laws to identify and weed out waste and corruption in local government, I am quite sympathetic to Proposition 59.
It is important, however, for voters to know what Proposition 59 would NOT do.
As written (by the State Legislature), Proposition 59 would continue to exempt from disclosure government records deemed "private" by the courts and would not apply at all to the "confidentiality of proceedings and records of the Legislature, the Members of the Legislature, and its employees, committees, and caucuses . . .".
Voters should also consider that insofar as electing some top persons in government (i.e., having a representative democracy) is key to making career government bureaucrats more accountable, elections (especially for State Assembly, State Senate, and Congress) have been undermined by:
(1) the dependence on private, special interest campaign money (sometimes called "legalized bribes"); and
(2) the self-serving creation (every 10 years) of gerrymandered legislative districts that protect incumbents from competition.
Moreover, anyone who blindly trusts a computer program to count votes (without any "paper trail" for potential verification) is foolish.
Sadly, we are a long way from having true representative democracy in California—and across America.
Government is getting bigger and becoming more wasteful, insular, and abusive. Proposition 59 would not do much to reverse that alarming trend.
GARY B. WESLEY, Attorney at Law |
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ARGUMENT Against
Proposition 59
This measure does not go far enough in guaranteeing the people access to information and documents possessed by state and local government agencies.
In fact, this measure only provides for a general "right of access to information concerning the conduct of the people's business" and that laws in California "shall be broadly construed if it furthers the people's right of access, and narrowly construed if it limits the right of access."
Laws are construed (i.e., interpreted) by officials charged with following them—and by courts when asked. The rule of interpretation contained in this measure would probably have a very limited effect.
Indeed, this measure explicitly states that it does not supersede or modify any "right to privacy guaranteed by Section 1" of Article I of the California Constitution.
While a right to privacy—especially against government intrusion-is critical in today's society—government employee groups are using the state constitution's "right to privacy" to hide the amount of money, benefits, and perks they receive at public expense!
Proposition 59 may be better than nothing, but it does not go far enough. The question is whether to vote "yes" and hope for more or vote "no" and demand more.
GARY B. WESLEY, Attorney at Law
REBUTTAL to Argument Against Proposition 59
Mr. Wesley's skepticism of open government laws is understandable. Several years ago, when he sued his city council under the open meeting law alleging it had illegally used a closed session to discuss a topic not mentioned on the agenda, the court would not let him question the council members about what they had discussed behind closed doors.
The court concluded that because the law did not expressly authorize such questioning and because it contained other provisions protecting closed session discussions, government officials could not be asked about what they discussed even to obtain evidence for trial, and even if there was no other way of proving a violation of the law.
In other words, he lost because the court applied the general rule of access narrowly, and the exception allowing secrecy broadly—precisely what Proposition 59 would reverse.
As for privacy, the constitution has never been interpreted to protect the abuse of official authority or the wasting of public resources by anyone, and Proposition 59 will not create a screen for anyone to use in hiding fraud, waste, or other serious misconduct.
On the contrary, Proposition 59 will add independent force to the state's laws requiring government transparency. It will create a window on how all public bodies and officials conduct the public's business, for well or ill, while sparing the dignity and reputations of ordinary people, public employees, and even high officials who have done nothing to merit public censure or concern.
MIKE MACHADO, State Senator
THOMAS W. NEWTON, General Counsel, California Newspaper Publishers Association
JOHN RUSSO, City Attorney
City of Oakland |
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