California Newspapers Going After Legislative Expenses Get Boost From Related Fed Ruling

     SACRAMENTO (CN) – A bid by California newspapers to see legislators’ budget records received a big boost from a new federal ruling that gives broad scope to records subject to the Freedom of Information Act, a federal law that bears many similarities to California’s law on open government.
     In a petition filed earlier this month at the Sacramento County Superior Courthouse, the Los Angeles Times, La Canada Valley Sun and the Sacramento Bee newspapers requested documentation of California legislators’ budget allowances, spending and expenditures under the state’s Legislative Open Records Act.
     The Legislature has rebuffed the demand, claiming that the requested documents are protected a similar argument lobbed, unsuccessfully, by the Secret Service while opposing a government watchdog’s attempt to look at White House visitor logs.
     U.S. District Judge Beryl A. Howell, who was nominated to the bench by President Barack Obama in 2010, rejected these arguments on Aug. 17 and ordered the Secret Service to turn its records over to Judicial Watch.
     Holwell disagreed that the logs were protected presidential records and said she was “skeptical” that the releasing the documents would undermine the separation of powers. If certain documents pose a threat to confidential presidential communications, the Secret Service has recourse through exemptions written into the FOIA, the judge explained.
     In California, the newspapers’ joint filing follows a series of stories about Assemblyman Anthony Portantino, D-La Cañada Flintridge, who became embroiled in an ongoing feud with Assembly Speaker John A. Pérez, D-Los Angeles, earlier this summer.
     Specifically, the two are at loggerheads over Pérez’s characterization of Portantino as a free spender and his subsequent decision to slash Portantino’s budget.
     Portantino flatly denied Pérez’s assertions and has said the dramatic reduction in his budget has impaired his ability to serve constituents. He countered with a demand for the current spending records of all 80 members of the lower house, but Assembly administrators refused.
     As the dispute grew, three different reporters filed requests for the relevant records: copies of each assembly member’s annual allowance; a budget summary for budget years 2010 and 2011; each member’s total budget allowance for budget year 2010; each member’s expenses for budget year 2010; each member’s total budget allowance for budget year 2011; and each member’s estimated expenditures for budget year 2011.
     But Lynda Roper, deputy administrative officer for the Legislature, allegedly told each reporter that the information was exempt from public disclosure under a provision of the California state code that protects “preliminary drafts, notes, or legislative memoranda” and another that applies to correspondence between individual members of the Legislature and their staff.
     In two of the cases, she also demurred on the grounds that at least some of the records – those reflecting the most recent budgets and expenditures – “were not available,” the newspapers added.
     The papers contend that such refusal violates the spirit of Article 1 of the California Constitution which states, “The people have the right of access to information concerning the conduct of the people’s business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.”
     More to point, they decried the refusal as a blatant violation of the Legislative Open Records Act and state code, the latter of which provides that “legislative records are open to inspection at all times during the normal office hours of the Legislature and any person has a right to inspect any legislative record – except in certain narrowly defined exemptions.
     “Any person shall be furnished reasonable opportunities for inspection of legislative records and reasonable facilities for making memoranda or abstracts therefrom,” the code says.
     Another relevant section states that upon a proper request, “legislative records shall be made available for inspection promptly and without unnecessary delay.”
     Kelli Sager, who represents the newspapers in their California petition, said that interest in records tied to budget matters goes up sharply in hard times. “It boils down to their being a lot of interest right now in how taxpayers’ dollars are spent.”
      “I think that’s definitely more at the front of people’s minds than it was three or four or five years ago,” said Sager who is with the Davis Wright Tremaine. “That’s really the bottom line. The thing that is of interest to everybody is how taxpayer money is being spent, in this case by a state Legislature, and whether it is being spent in a way that makes sense, or is instead being handed out as favors to whoever is in good graces and taken away from those who aren’t.
     “If the latter is the case, that’s certainly not something most taxpayers would be too happy about,” Sager added.
     The newspapers expect the Legislature’s response to their Aug. 5 petition in the next week.
     “It’s hard to predict how this might play out in other cases, but it certainly appears to us that the statute doesn’t give them any basis for withholding this information about taxpayer money,” said Sager. “That why we are surprised that the Legislature has take this tact and refused to provide the documents.”
     Though the Legislature did publically release a number of documents related to expenditures on Aug. 26, Sager noted that “they still have not provided any of the budgets or changes to the budgets that were part of our request.”
     The plaintiff newspapers seek all of the documents the reporters originally asked for, plus documentation related specifically to the budget and expenditure approvals for Assemblyman Portantino. They also seek any documents from the Assembly’s Rules Committee or Speaker’s Office that execute changes to Portantino’s budget and expenditures, and any documents related to approvals or changes to any assemblyman’s budget.
     On the other side of the fence, Portantino introduced a bill that would eliminate special legal exemptions that lawmakers have carved out of the Legislative Open Records Act over the years, which he says have kept transparency at bay.
     Under the bill, the Legislature would be subject to the broader California Public Records Act, which covers state agencies, the governor, constitutional officers and local governments.

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