"The people of this state do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist they may retain control over the instruments they have created."
So reads the preamble to the California Public Records Act (CPRA), succinctly capturing the essence of sunshine laws. This week's cover story — penned by the nonprofit Electronic Frontier Foundation — is a celebration of these laws, which are integral to the functioning of a "government of the people, by the people, for the people," as Abraham Lincoln famously put it. We at the Journal will be the first to admit we hold a bias on this issue. We believe the people's business should be conducted in public view and that public records belong to us citizens, not the officials who create them.
California's records act — and its federal counterpart, the Freedom of Information Act — are where the rubber of these lofty ideals meets the pavement of our governments, dictating what constitutes public records, how they are disseminated and in what cases they can be withheld and kept private. Both acts are flawed and in need of improvement.
While there are plenty of provisions in the acts in need of reform, the most glaring deficiency in both is an omission: The very governmental bodies that created them are exempt from following them.
As you'll read in this week's cover story, when Congress drafted the Freedom of Information Act 50 years ago, it wrote the law to include the executive branch and its departments, federal agencies and even federal corporations. Conspicuously left off the list is Congress itself. Similarly, in California, where the sunshine law has been enshrined as a part of the state Constitution, the Legislature wrote itself out of the public records act when it was penned in 1968. Seven years later, the Legislature wrote a different — and much weaker — set of rules for itself, the Legislative Open Records Act (LORA).
Under the CPRA, communications between elected officials and their staffs are generally presumed to be public records but not under LORA. Perhaps more troubling, LORA also exempts records of complaints against the Legislature and individual lawmakers, as well as those of investigations into said complaints. This is beyond problematic.
Earlier this year, as the #MeToo movement swept the nation and put a spotlight on workplace harassment, the Legislature faced growing pressure — thanks largely to the dogged efforts of the Los Angeles Times — to release records showing the scope of the problem in Sacramento. In response, a committee of legislative leaders released more than 100 pages of documents detailing harassment claims against 18 lawmakers and high-ranking staffers that investigations found guilty of misconduct over the past decade. One of those lawmakers is a Republican gubernatorial candidate and he promptly decried the release as a politically motivated smear job by a Democrat-controlled committee.
On the federal level, the #MeToo movement has similarly run into an opaque wall. While news has trickled out about specific lawmakers and settlements, journalists have been unable to offer a full accounting of complaints, investigations or how much they have cost taxpayers because Congress essentially decided it doesn't have to play by the rules it has set for just about every other federal agency.
So while we should all be very thankful we live in a state and a nation with open records laws, we also must keep pushing to reform them. We need to broaden them. We need to give them teeth. And we need to make sure they apply to all lawmakers, most especially those in Congress and the California Legislature.
After all, the right to know what our government is doing in our names and how it spends the tax dollars we give it should be a fundamental cornerstone of a functioning democracy.
Thadeus Greenson is the Journal's news editor. Reach him at 442-1400, extension 321, or firstname.lastname@example.org. Follow him on Twitter @thadeusgreenson.