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Making open records provisions part of a state constitution, as California voters did last year, can lead to stronger laws…

Making open records provisions part of a state constitution, as California voters did last year, can lead to stronger laws and fewer exemptions.

From the Winter 2005 issue of The News Media & The Law, page 20.

By Ryan Lozar

When California voters overwhelmingly passed a constitutional amendment last fall guaranteeing public right of access to government records and meetings, the Golden State joined five others with constitutional protections for open government: Florida, Louisiana, Montana, New Hampshire and North Dakota.

Eighty-three percent of California voters endorsed Proposition 59, assuring access to all “meetings of public bodies and &#133 writings of public officials and agencies.” Such constitutional right-to-know provisions are perhaps the most potent legal means of fostering open political debate, since they are supreme law of a state and not susceptible to legislative repeal.

They also can have a greater scope than any statute could. In New Hampshire, for example, open government laws were not applied to the judiciary because of the state’s separation of powers doctrine. After voters approved a constitutional right-to-know clause in1976, the state Supreme Court interpreted it to require, not just permit, judicial openness. That case, 1992’s Petition of Keene Sentinel, enabled a newspaper to unseal the divorce records of Rep. Charles Douglas (R-N.H.).

Right-to-know provisions also have practical political use. Just reminding government officials of these amendments’ tremendous popularity &#151 87 percent of Floridians supported its 1992 constitutional sunshine provision and 73 percent of voters approved added protections in 2002 &#151 discourages attempts to water down open access rights, said Barbara Peterson, president of the First Amendment Foundation in Tallahassee, Fla.

North Dakota media lawyer Jack McDonald agrees. When legislators see widespread voter support for open government provisions, they are “less inclined to pursue new exemptions,” even ones whose passage would be constitutional, he said. Voters in his state passed two right-to-know constitutional amendments by wide margins &#151 an open meetings provision that received 78 percent of the vote in 1974 and an open records provision that received 83.5 percent of the vote in 1978.

In California, the benefits of Proposition 59 remain to be seen. Last month, Gov. Arnold Schwarzenegger publicly released portions of his official calendar. Although it’s not clear that Proposition 59 compelled that disclosure, it is symbolic because the constitutionalization movement started in response to the 1988 refusal of then-Gov. George Deukmejian to release his calendar and the state Supreme Court’s sanction of that refusal in the 1991 case Times Mirror Co. v. Superior Court.

Times Mirror had a far-reaching and negative impact on open government in California. Public officials liberally invoked Times Mirror to withhold their own records and the case came to stand for a broad “deliberative process privilege” that deferred to politicians’ interest in seeking confidential &#151 and, they argued, more candid &#151 advice. Government secrecy became so endemic that a constitutional right-to-know provision was considered by many to be the only possible solution.

California’s experience is a reminder that constitutional right-to-know movements derive and profit from voters’ persistent lack of faith in government, says media lawyer Michael Meloy. The constitutional access provision in Montana, Meloy’s home state, was ratified by the 1971-1972 Constitutional Convention and sprang from Watergate and the Vietnam War’s “profound violation of the public’s trust in its government,” he said.

Some of the most broad constitutional provisions are self-defeating, authorizing legislatures to craft access exemptions. New Hampshire imposes upon right-to-know exemptions a requirement of ill-defined “reasonableness.” And the seemingly extensive right of access enjoyed by citizens of North Dakota and Louisiana is emasculated by caveats, allowing their legislatures to “provide” or “establish” limitations however they choose. As one Louisiana appellate court recently noted in St. Mary Anesthesia Associates Inc. v. Hospital Service District No. 2, broad provisions turn otherwise legal obligations into mere advisory warnings: “the plain language of [the constitution] empowers the legislature to exempt from disclosure any information it wishes.”

By contrast, when Montana enacted its right-to-know provision, constitutional convention delegates allowed exemption only in cases where “the demand of individual privacy clearly exceeds the merits of public disclosure.” That has empowered the Montana Supreme Court to invalidate many attempted access exemptions. In one recent case, Great Falls Tribune Co. Inc. v. Day, the court refused to allow bids for public contracts to be kept under wraps. While the court acknowledged that closed-door negotiations could leverage “the best deal” for taxpayers, it ruled that the state constitution did not permit it: “Economic advantage is not a privacy interest, ” Justice Terry Trieweiler wrote for a divided court.

California’s new right-to-know provision restricts exemptions by requiring that the government submit “findings demonstrating the interest protected by the limitation and the need for protecting that interest.” The effect of the clause has not yet been tested in California, but Florida’s equivalent has fortified the public’s right to know. Last July, a Florida trial court struck down an exemption limiting public access to felon voter lists in Cable News Network v. Florida. The legislature had not specifically articulated the public’s need for the exemption, and the court refused to “speculate” what it might be.

More procedural hoops for clamping down on access are layered into Florida’s Constitution, giving the state one of the country’s most robust access landscapes. The supermajority rule, for example, preconditions any new exemption on two-thirds support from both legislative houses. Proposed exemptions also must comply with the single subject rule, which mandates that any access-limiting legislation stick exclusively to one topic. Legislators “can’t just stick exemptions in on page 72” of some omnibus bill, Peterson said. This restriction clearly identifies such propositions to other lawmakers who might oppose it.

Will other states follow California’s example and constitutionalize open government? Peterson hopes so, but cautions other states to learn from existing constitutional right-to-know provisions. As Florida and Montana’s experiences show, exemption limitations are the key to adopting constitutional protections that have teeth. To that end, Peterson says, drafters should take great care to “make them as specific as possible.”