The First Amendment Coalition and a Sacramento community group have filed suit against the Sacramento City Council for access to Council emails and other records concerning a  controversial redistricting plan for Council districts that was adopted last summer.

The suit, filed Friday by FAC and Eye on Sacramento, a local nonprofit, grows out of the Council’s refusal to disclose certain records requested by the organizations under the California Public Records Act. The withheld records include emails between Council members leading up to a contentious City Council meeting at which redistricting plans proposed by a citizens’ advisory committee–created by the Council–were rejected in favor of a voting map drawn up by members of the Council.

The plan adopted has been criticized for protecting the reelection prospects of incumbent Council members and for deviating significantly from the one-person, one-vote formula required under the federal Constitution. An editorial in the Sacramento Bee slammed the Council’s plan, and the secrecy surrounding  it,  “as a pathetically obvious political power play that looms as another black eye for this council.”

In withholding the records, the Council has claimed that they are subject to the “deliberative process privilege,” an exemption read into the Public Records Act in a 30-year-old state Supreme Court decision relating to records of the Governor. FAC believes, and will argue in this suit, that a privilege for government officials’ deliberations doesn’t apply to deliberative bodies–particularly deliberative bodies, like the Sacramento Council, that are also subject to California’s open-meeting law.

“City Councils, which are required by law to do all their decision-making in public meetings, can’t claim a secrecy ‘privilege’ for the same deliberations,” said Peter Scheer, FAC’s executive director. “In this case, the withheld emails may even show that Council members violated the Brown Act by discussing their districting map outside of a public meeting,” Scheer added.

FAC and Eye on Sacramento are represented in the case by Karl Olson, a partner at San Francisco law firm Ram, Olson, Cereghino & Kopczynski LLP .

Here’s a copy of the FAC lawsuit.

The First Amendment Coalition and a Sacramento community group have filed suit against the Sacramento City Council for access to Council emails and other records concerning a  controversial redistricting plan for Council districts that was adopted last summer.

The suit, filed Friday by FAC and Eye on Sacramento, a local nonprofit, grows out of the Council’s refusal to disclose certain records requested by the organizations under the California Public Records Act. The withheld records include emails between Council members leading up to a contentious City Council meeting at which redistricting plans proposed by a citizens’ advisory committee–created by the Council–were rejected in favor of a voting map drawn up by members of the Council.

The plan adopted has been criticized for protecting the reelection prospects of incumbent Council members and for deviating significantly from the one-person, one-vote formula required under the federal Constitution. An editorial in the Sacramento Bee slammed the Council’s plan, and the secrecy surrounding  it,  “as a pathetically obvious political power play that looms as another black eye for this council.”

In withholding the records, the Council has claimed that they are subject to the “deliberative process privilege,” an exemption read into the Public Records Act in a 30-year-old state Supreme Court decision relating to records of the Governor. FAC believes, and will argue in this suit, that a privilege for government officials’ deliberations doesn’t apply to deliberative bodies–particularly deliberative bodies, like the Sacramento Council, that are also subject to California’s open-meeting law.

“City Councils, which are required by law to do all their decision-making in public meetings, can’t claim a secrecy ‘privilege’ for the same deliberations,” said Peter Scheer, FAC’s executive director. “In this case, the withheld emails may even show that Council members violated the Brown Act by discussing their districting map outside of a public meeting,” Scheer added.

FAC and Eye on Sacramento are represented in the case by Karl Olson, a partner at San Francisco law firm Ram, Olson, Cereghino & Kopczynski LLP .

Here’s a copy of the FAC lawsuit.

–Peter Scheer

The First Amendment Coalition has filed an amicus brief in a US Supreme Court case, United States v. Alvarez,  that will test the limits of free speech protection for false speech.  FAC’s brief was written by lawyers Gary Bostwick, Jean-Paul Jassy and Kevin Vick of  LA law firm Bostwick & Jassy, LLP.

The Alvarez case concerns a local politician in Southern California who was prosecuted under an obscure federal law, the Stolen Valor Act, which makes it a crime to falsely claim to have been awarded the Congressional Medal of Honor. Alvarez’s conviction was overturned by the Ninth Circuit federal court of appeals on First Amendment grounds.

The Supreme Court’s prior decisions in the areas of libel and elsewhere have extended protection to some false speech as a prophylactic measure, needed to assure adequate First Amendment protection for true speech. The Justice Department contends that First Amendment protection for false speech should be narrowly limited to those areas.

FAC’s brief argues that the Court should resist the government’s invitation to carve out a new category of non-protected speech under the First Amendment. FAC also points out that the infamous Sedition Act of 1798, which criminalized “false and malicious writings” against the federal government, would survive First Amendment scrutiny under the test urged by the Justice Department.

Here’s the Court of Appeals decision in US v. Alvarez.

– PS

Howard H. “Tim” Hays, the much honored former editor, publisher and chairman of the Press-Enterprise newspaper in Riverside, CA, and founding member of the First Amendment Coalition, died October 14 in St. Louis.  He was 94.

“Tim was a rarity, a man whose moral compass was set on true,” Mel Opotowsky recalled in a Press-Enterprise article. “That is especially important as a newspaper owner because of the obligation as a public trust. There are many instances of Tim’s beneficence, not only to his employees, but to his readers and to principles of quality journalism.” Opotowsky, a FAC board member, helped found the open government organization along with Hays for whom he worked as the P-E’s managing editor.

Hays was born in Chicago on June 2, 1917, and moved with his family to Riverside in 1924. He graduated from Stanford University in 1939 and earned his law degree in 1942. During World War II, he spent several years as a special agent for the FBI.

A Harvard Law School graduate, Hays passed the bar in 1946 but never practiced law: The same year, he became an assistant editor at what became the Press-Enterprise under his father, Howard H Hays Sr., who was editor and co-owner.

Hays became editor in 1949, and ultimately spent 51 years at the Press-Enterprise.

During his tenure the newspaper won a Pulitzer Prize for meritorious public service in 1968 for a series of more than 100 stories, written mostly by reporter George Ringwald, and related editorials,  that exposed malpractice in the conservatorship program for Agua Caliente Indians in Palm Springs.

In the 1980s, the newspaper’s openness-in-government crusade resulted in separate Supreme Court rulings that are now commonly referred to in First Amendment cases as Press Enterprise I and Press Enterprise II.

In the first, in 1984, the Supreme Court ruled unanimously that the public has a presumptive right to observe jury selection. In the second, in 1986, the court ruled 7-2 that the public has a right to view pretrial hearings, after a judge closed more than a month of preliminary hearings in another murder case.

At a 1997 retirement dinner for Mr. Hays, Washington Post Co. Chairman Donald E. Graham said that Mr. Hays was “one of the great, principled editors of his generation … one of his generation’s foremost advocates of the First Amendment.”

Survivors include wife Susie Hays of St. Louis, sons Bill Hays of Corona Del Mar and Tom Hays of New York City, and brother Dan Hays of Riverside. His brother, William H. Hays, died earlier this year. Mr. Hays’ first wife, Helen Hays Yeager, died two years earlier, to the day, of Mr. Hays’ death.

According to the Press-Enterprise obituary, the family were considering plans for a memorial service. The family requested that donations in lieu of flowers be made to the UCR Foundation, 120A Highlander Hall, 900 University Ave., Riverside CA 92521.

The website is ucr.edu/giving

Read More: Press-Enterprise: Former P-E Editor Time Hays Dies

October 19, 2011—The Obama administration on Wednesday said that, using World Trade Organization rules, it was calling on the government of China to answer detailed questions about its censorship of the internet–in particular, the blocking of websites of US-based businesses seeking to tap the vast Chinese consumer market.

The announcement, which grows out of an initiative of a free speech nonprofit group, the First Amendment Coalition (FAC), is a significant step in investigating and challenging internet censorship as a violation of free trade rules. Such a challenge would likely include the claim that China’s blocking and disrupting of US-based websites–under censorship rules that are cloaked in secrecy, applied arbitrarily, and enforced without a semblance of due process–are an illegal trade barrier under WTO treaties.

The Office of the US Trade Representative, which made the announcement and represents the US before the WTO, highlighted the harm China’s censorship system caused to small and mid-size US businesses that do not have operations in China.  Because their main access to the Chinese market is through the internet,  the blocking and disruption of their websites effectively precludes their competing for Chinese consumers.

“We are pleased that the USTR is demanding that China shed light on its elaborate, but highly secret, system for censoring the internet,” said Peter Scheer, FAC’s executive director. FAC in 2007 launched its effort to persuade the USTR to act against China’s internet censorship. Earlier this year FAC proposed that USTR invoke a WTO rule to extract information from China, the step it announced Wednesday. “We appreciate USTR’s efforts on this important issue,” Scheer said.

Gilbert Kaplan, FAC’s lawyer and a partner in the Washington, DC office of King & Spalding, said “it’s time for the US government to just say no to China’s censorship of the internet, which has become more restrictive in recent years, causing untold competitive harm to US information and technology companies at a time when the US economy can least afford it.”

Below are the questions that the USTR announced it had posed to Chinese government authorities:
———–
“1. Websites of service suppliers based outside of China are sometimes inaccessible in China, which can prevent those companies from marketing products and supplying services to the Chinese market. The United States would like to better understand China’s rules governing website blocking so that service suppliers based outside of China may adopt appropriate policies to avoid encountering this problem.

a. Who or what ministry is responsible for determining if and when a foreign website should be blocked in China?

b. What are the guidelines and criteria for blocking access to foreign websites? How often are these guidelines and criteria changed or published? Where are these guidelines published? Are they made public in advance of their implementation? Which ministries are responsible for drafting them?

c. What is the process for implementing a restriction on a website? How does the relevant entity determine whether an entire website should be blocked or only services or content deemed illegal?

d. Is the blocking implemented directly by the government, or indirectly by Internet service providers (ISPs) and/or telecommunications companies?

e. If blocking is carried out by ISPs or telecommunications companies, are these actions typically implemented through written governmental orders? If so, which governmental organs are authorized to issue such orders?

f. How can a service supplier without a physical presence in China determine if access to their website is or will be blocked in China? To whom should such a supplier direct questions if there are any misunderstandings?

g. Can an affected service supplier appeal a decision to block access to their website? If so, what is the procedure for appealing, and where is that procedure published? Can a service supplier use the court system to appeal a decision to block access to their website? If so, has any such appeal ever been successful?

h. Is the same process used to prevent access to foreign and domestic websites providing similar services in China? If the process is different, please describe the differences.

2. The United States understands that the State Council established a State Internet Information Office (SIIO) in May 2011. The United States is interested in better understanding the functions of the office and whether it is the appropriate interlocutor for foreign businesses that have questions or concerns regarding website inaccessibility.

a. What are the responsibilities and authorities of the SIIO?

b. Will the SIIO handle licensing or other approval processes for Internet service providers or make decisions regarding filtering of foreign websites? If so, please describe which of these processes the SIIO will manage.

c. Should companies contact the SIIO or some other entity when they have questions regarding China’s Internet filtering laws, regulations and policies? If the SIIO is the appropriate contact, which office or individual should they contact? If not SIIO, which ministry and office should companies contact?

d. Which categories of objectionable conduct are managed by each ministry with responsibilities or authorities for managing Internet content?

3. Based on information provided by the SIIO earlier this year, the United States understands that foreign websites are sometimes inadvertently blocked when they share an IP address with a website which China has deemed harmful.

a. Can you explain how such inadvertent blockages occur?

b. Are there other ways that China can filter material deemed harmful to avoid such inadvertent website blockages?

c. Would Chinese authorities consider it reasonable to notify the owner of a web hosting service that one or more sites that the service hosts are being blocked in China, so that the web hosting service can ensure that other legitimate sites are not inadvertently blocked? Are Chinese authorities already doing this?

d. What steps should companies take when they become aware of such inadvertent blockages to resolve any issues and ensure their services are accessible in China?

4. The Measures for the Administration of Internet Information Services, issued by the State Council on September 25, 2000, describe nine categories of content which Internet information service providers may not disseminate. The Provisions on the Administration of Internet News Information Services, issued by the State Council and Ministry of Information Industry on September 25, 2005, add two additional categories of content which may not be transmitted. Given the broad nature of these categories, the United States is seeking greater clarity on the content that falls within them.

a. Are there any laws, regulations, policies or other guidance that establish criteria to determine when content fits into these eleven categories? If so, where can a service supplier access these measures?

b. Are government requests or orders to filter specific terms online ever communicated directly to Internet information service providers? If so, how are these directives communicated? Are these requests or orders made public? Does an Internet information service provider have the right to obtain a written order prior to implementing such a directive?

c. Are the same terms subject to filtering made available to Internet information service providers inside China and outside China?

5. According to the White Paper on the Internet in China, “telecommunication business operators and Internet information service providers shall establish Internet security management systems and utilize technical measures to prevent the transmission of all types of illegal information.”

a. How is illegal information defined in this instance?

b. Is a written governmental order required for either a private corporation or a relevant authority to block the transmission of illegal information?

c. What types of technical measures are service suppliers expected to use to prevent transmission of the illegal information?

d. Do authorities in China approve specific technical measures? If so, which ministry does this?

e. Are the technical measures employed by operators to block the transmission of illegal information applied automatically to domestic and foreign traffic? If not, how are they applied?

f. Does Internet content from outside of China go through a separate monitoring process for illegal information than Internet content created inside of China? If so, how do the two processes differ?”
———

For more information, contact:

Gilbert Kaplan
King & Spalding
Washington, DC
202-661-7981

Peter Scheer
First Amendment Coalition
San Rafael, CA

http://www.firstamendmentcoalition.org

415-460-5060

Gov. Jerry Brown has vetoed SB 914, a bill sponsored by the First Amendment Coalition that would have required police to get a warrant before searching through the smart phones and other electronic devices of people they arrest.

The bill would have overridden a recent California Supreme Court decision allowing warrantless searches of cellphones.  Interpreting federal law, the Court ruled that in a search “incident to arrest,” police can treat the files on a suspect’s cellphone the same as the contents of his pockets or a cigarette pack in his possession.

But that reasoning, of course, ignores the fact that cellphones contain sensitive and confidential files, both personal and professional, by the gigabyte. SB 14 was based on the idea that a search of a cellphone is equal in intrusiveness to a search of one’s office desk or bedroom. Just as police must have a warrant to search a desk or bedroom, so they should have to get a warrant  to search a cell phone.

In his veto message, Gov. Brown said, “the courts are better suited to resolve the complex and case-specific issues relating to constitutional search-and-seizure protections.”

FAC Executive Director Peter Scheer was critical of  Brown’s reasoning. “The courts have already addressed the specific issue of searches of cellphones following arrest. The California Supreme Court’s decision is the final word, not the beginning of a judicial debate.”

BY PETER SCHEER–Steve Jobs died at age 56, a young man. But one of the things that stands out about him is the longevity of his superstardom. Jimmy Carter was president when Jobs first appeared on the scene as the bearded personification of high-tech cool. From the early Apple PCs to the launch of the Mac, his involvement in Pixar, his return to a humbled Apple and its reinvention as a dominant force in the media world (iPod, iTunes, iPhone, iPad), Jobs spent more than 30 years at the very top of his game.

It’s as though the Beatles, instead of breaking up in 1969, had kept on writing and recording and performing new songs at the same level of creative intensity and productivity for three decades. Interestingly, one of the few people who comes to mind as possibly rivaling Jobs in this regard is his career-long nemesis, Bill Gates. That they were both children of California culture in the 60s and 70s is not a coincidence.

. . . I first realized Steve Jobs was not merely lucky, but a true—and uniquely American—genius when, with several small children in tow, I saw the first Toy Story movie in 1995. Jobs’ launch of Apple was impressive, to be sure, but Apple in the late 80s and early 90s was not so clearly superior in its technology or vision to the legions of other startups making first-generation personal computers.

Then came Pixar, which Jobs bought when the company had zero revenues (and lots of human capital). Its first full-length computer-animated film was so good-and such a leap, in every possible way, from everything that had come before, that there was no escaping that Jobs was a truly gifted corporate leader. With Pixar, lightning had struck a second time for Steve Jobs. It would strike for him again and again and again.

. . . The lionizing of Steve Jobs, one of the world’s richest men, is in sharp contrast to the political sport of  thrashing America’s super-rich: CEOs, hedge fund managers, investment bankers, venture capitalists (and most of the residents of Manhattan’s upper east side). As Jobs lay dying, New York’s  “Occupy Wall Street” demonstrations drew ever bigger crowds of participants and onlookers.

Jobs’ stature reflects America’s ambivalence about personal wealth. Jobs is spared the groundswell of populist anger because he is seen as deserving his fortune (over $6 billion based on his stock holdings alone). He is classed not with corporate chieftains and financiers for this purpose, but with professional athletes and Nobel Prize winners. Jobs’ oversized compensation is viewed as the just reward for a personal talent so great and so rare it is like a national asset.

Jobs’ winning streak at Apple, particularly during the last decade, was so stunning and consistent that only fools and masochists bet against him. And for a while it even appeared that, against all odds, Jobs had managed to beat a diagnosis of pancreatic cancer.

. . . Steve Jobs had the truly bizarre experience of reading his own obituaries—the first wave of obituaries that were published in August, following his resignation as Apple CEO. I think he would have been struck by the outpouring of tributes and affection: their volume and depth reflected more than just his importance in the business world or the history of computers.

Jobs would have seen that he had connected in some fundamental way with his customers who, by the millions, not only had opened their wallets to buy Apple’s cool, lifestyle-defining products, but also identified with Jobs’ personal narrative: the college dropout who followed his dream from his parents’ garage to the top of the Fortune 500, all the while staying true to some inner compass wired to a uniquely California culture prizing, above all else,  intuition, creativity, community and risk-taking.

Not a bad legacy. Not bad at all.

————

Peter Scheer, a lawyer and journalist, is executive director of FAC. This article, which also appeared in the San Francisco Chronicle and Huffington Post, reflects his views only, not those of the FAC Board of Directors.

Petition Update (Thurs, Sept 29, 2011)

SB 914 is still sitting on Governor Brown’s desk.  We faxed the first 200 petition signatures to Brown’s office on Fri., Sept  23 and today we sent him an updated list including all those who’ve signed this week.  We will continue to collect signatures and update the Governor until he takes action! Keep those signatures coming!

Sitting on Governor Brown’s desk right now is SB 914, a First Amendment Coalition-sponsored bill that would restrict warrantless police searches of citizens’ cellphones. Sign the petition at the bottom of this page, and help us send a strong and urgent message urging the Governor to sign this bill.

Why is SB 914 needed?

Imagine you are observing a demonstration and are swept up in a mass arrest of protesters. You could be a journalist, a blogger, or just an unlucky passerby. Under current law, police can seize your cell phone and, without any explanation or reason at all, search through all the megabytes of files and information stored there, both personal and professional, no matter how sensitive or private.

SB 914 would assure judicial supervision for such searches by requiring police to get a search warrant, just as they would have to do for a search of files located in your office or your home. This requirement would not hamper police work. Under SB 914 police officers would have authority to hold a suspect’s cell phone, protecting against the deletion of files, while they arrange for a search warrant. And in genuine emergencies police would have the power to search a cell phone immediately, without a warrant (what lawyers refer to as “exigent circumstances”).

SB 914, introduced by Senator Leno (D-San Francisco), is not a liberal bill or a conservative bill, but a smart, practical legal reform in the public interest broadly defined. Sponsored by the ACLU and the California Newspaper Publishers’ Association–in addition to the First Amendment Coalition–SB 914 was enacted with bipartisan majorities in both the Assembly and Senate.

For more information, here are links to the text of SB 914 and to an editorial about the bill from the Los Angeles Times.

SB 914 bill text

LA Times editorial

Sign FAC’s Petition to Urge Gov. Brown to sign SB 914

Join the Challenge! We need to raise exactly $47,209 to meet the overall goal of $400,000. I know you care deeply about freedom of speech and the public’s right to know. These rights of democratic citizenship underlie all others because they enable the people to hold their government accountable. Find out how your contribution will help.

SB 914, a FAC-sponsored bill to prohibit warrantless searches of cell phones during an arrest, has been approved by the California Legislature. The legislation now goes to the Governor’s office, where, because of opposition by law enforcement, its fate is uncertain.

The Senate yesterday approved the bill, which was introduced by Senator Mark Leno (D-San Francisco), by a bipartisan 31-4 vote. It was approved by the Assembly in August.

Police ordinarily have authority, following an arrest, to conduct a search–without a warrant–of the person arrested and materials and containers in his possession–for example, a wallet, any weapons, or a cigarette pack. SB 914 alters this rule for “portable electronic devices” because of the volume and sensitivity of personal files and information that is typically stored on them.

Under SB 914, police could still search cellphones and similar devices, but only after obtaining a warrant. The legislation would reverse the outcome of a California Supreme Court decision, People v. Diaz,  issued earlier this year. -PS

Here is the full text of SB 914:

SECTION 1.  The Legislature finds and declares all of the
following:
(a) The right of privacy is fundamental in a free and civilized
society.
(b) The number of Californians utilizing and carrying portable
electronic devices is growing at a rapidly increasing rate. These
devices are capable of and encourage the storing of an almost
limitless amount of personal and private information. Commonly linked
to the Internet, these devices are used to access personal and
business information and databases that reside in computers and
servers located anywhere in the world. Users of portable electronic
devices have a reasonable and justifiable expectation of privacy in
the information these devices contain and can access through the
Internet.
(c) The California Supreme Court, in People v. Diaz, 51 Cal.4th 84
(2011), held that the information in these devices may be subject to
search incident to an arrest without a warrant or other judicial
supervision.
(d) The intrusion on the information privacy and freedom of
communication of any person arrested is of such enormity that it must
require arresting officers to obtain a warrant to search the
information contained in or accessed through an  arrested’s
arrested person’s  portable electronic device,
such as a cellular telephone.
(e) It is the intent of the Legislature in enacting Section 1542.5
of the Penal Code to reject as a matter of California statutory law
the rule under the Fourth Amendment to the United States Constitution
announced by the California Supreme Court in People v. Diaz. The
Legislature finds that once in the exclusive control of the police,
cellular telephones do not ordinarily pose a threat to officer
safety. The Legislature declares that concerns about destruction of
evidence on a cellular telephone can ordinarily be addressed through
simple evidence preservation methods and prompt application to a
magistrate for a search warrant and, therefore, do not justify a
blanket exception to the warrant requirement. Moreover, good forensic
evidence practice supports the use of search warrants to obtain
information contained in a cellular telephone seized incident to
arrest. Except as otherwise stated in this section, it is not the
intent of the Legislature to curtail law enforcement reliance on
standard   established  exceptions to the
warrant requirement.
(f) It is the intent of the Legislature, through the enactment of
Section 1542.5 of the Penal Code, to implement the provisions of
Sections 1 and 13 of Article 1 of the California Constitution.
SEC. 2.  Section 1542.5 is added to the Penal Code, to read:
1542.5.  (a) The information contained in a portable electronic
device shall not be subject to search by a law enforcement officer
incident to a lawful custodial arrest except pursuant to a warrant
issued by a duly authorized magistrate using the procedures
established by this chapter.
(b) As used in this section, “portable electronic device” means
any portable device that is capable of creating, receiving,
accessing, or storing electronic data or communications.
(c) Except as provided in subdivision (a), nothing in this section
curtails law enforcement reliance on established exceptions to the
warrant requirement.

The First Amendment Coalition is pleased to announce that it has received major gifts from veteran newspaper owner and publisher Raymond Pryke. The contributions totaling $125,000 will fund FAC’s litigation project, Hotline service and other legal initiatives.

“Raymond Pryke’s generosity is a huge boost to free speech and the public’s right to know,” said Peter Scheer, FAC’s executive director. “Raymond is uniquely committed to defending these rights, and we are extremely grateful to him.”

Pryke is the owner and publisher of Valleywide Newspapers based in the High-Desert community of Hesperia, CA. His interest in publishing began in 1962 with the  Apple Valley Observer, which he launched as a vehicle to promote sales for his real estate business. Today Valleywide Newspapers publishes many legally-adjudicated newspapers serving Los Angeles and San Bernardino counties including  the Hesperia Resorter, Apple Valley News, County Legal Reporter, Adelanto Bulletin, the Antelope Valley Journal and the Victorville Post Express.

By the ‘70s, Pryke’s growing interest in community affairs, particularly a stint as foreman on a county Grand Jury, made him see the need for more transparency in local government and greater public involvement in civic affairs. To do that  Pryke took a lesson from the London’s Fleet Street tabloids he read growing up in East Anglia, England.

“The way to beat corruption is to buy a newspaper and hit them with stories every week,” Pryke explained.  Soon the focus of his papers changed from real-estate promotion to anti-corruption crusades.

Pryke is the first to admit that he’s always loved a good fight.  At the start of WWII, Pryke, 17, joined the Home Guard, a branch of the British Army. Four years later, in 1943, he boarded the Queen Mary en route to Terrell, Texas, where he learned how to fly fighter planes in preparation for combat duty in the Royal Air Force.  In 1944, he transferred to the Royal Navy’s Fleet Air Arm and flew combat missions from aircraft carriers.

After the war, Pryke studied at the Royal Naval Academy, then at Trinity College in the University of Toronto, receiving his B.A. degree in 1949.  Soon after, he immigrated to the United States, becoming an American citizen in 1954.

“I couldn’t wait to become a citizen.  I liked America and liked Americans.  I didn’t plan on doing investigative journalism, but after I served on the Grand Jury, I had to do something about the corruption I found out about.  I’m a really independent guy.  I listen to people. I like what I do,” Pryke said in a phone interview Friday.

Pryke’s generous donation to FAC bolsters a major fundraising initiative aimed at raising $400,000  for the nonprofit organization’s  legal action fund. Pryke’s $125,000 contribution will be increased to $187,500 thanks to matching funds from the Rowland (“Reb”) Rebele and Pat Rebele 2011 Challenge Grant. The Rebeles, long-time FAC supporters, have contributed $100,000 to FAC and pledged a further $100,000 to enhance others’ contributions by 50 percent.

Pryke’s $125,000 gift brings FAC within $45,000 of its ambitious $400,000 fundraising goal. FAC’s legal fund will enable it to expand exponentially its litigation and other legal initiatives, turning up the heat on government agencies and government officials who give lip service to transparency and accountability while, in practice, obstructing people’s exercise of those those rights.-FAC

The First Amendment Coalition offers an incredibly useful and FREE legal consultation service. FAC’s Legal Hotline, available on our website, is staffed by top media lawyers who will answer your questions about freedom-of-information, open-meeting laws, First Amendment protections for journalists, bloggers and ordinary citizens, and other open-government issues.

I’m writing because FAC wants you to use this completely FREE service. FAC is a nonprofit. Our Legal Hotline service is made possible by grants from the McCormick, Knight, CS and Central Valley Foundations, as well as individuals who contribute generously to FAC.

When a government agency refuses to disclose public records, or a city council deliberates secretly on issues that should be aired in public, or a police officer forbids the videotaping of an arrest, you are not powerless. Use the free Hotline service on FAC’s website for an expert analysis of your issue and to find our what your options are. If the matter is urgent, you can call us directly (at 415.460.5060).

Here are some examples of recent questions submitted to the Hotline and the answers given by FAC’s lawyers at Holmes Roberts & Owen (a national law firm with offices in San Francisco):

• Are emails between elected officials public records?
• Do open-meeting laws bar a candidates’ forum?
• Can local governments negotiate with unions in secret?
  

You’ll also find a searchable archive of more than 1,000 authoritative answers by FAC’s lawyers responding to previous Hotline users. This feature, called Asked & Answered, is a vital legal resource that you can consult again and again.

The Legal Hotline is not new.  We’ve provided the public with answers to access law questions for more than 20 years. But the need today is greater than ever. Financially-strapped news organizations are no longer able to dispatch lawyers to vindicate the “people’s right to know.” The role of the Hotline is to legally empower citizens and journalists of all kinds to stand as a counterweight to government secrecy.

To make a long story short, we want you to take advantage of us, to pick the brains of our First Amendment experts, and, armed with a better understanding of your legal rights (and citations to relevant legal authorities), to push back effectively against recalcitrant government officials.

FAC is an advocate for free speech and access to government, but to succeed we have to connect our know-how with your need-to-know. So, use our free Hotline service.

In an important decision on freedom of information, a California appeals court today ruled that State Bar records about the race and ethnicity of Bar applicants are subject to a “common law” right of public access which, following further proceedings, could result in their disclosure–stripped of all names and identifying information–for academic research into the effects of affirmative action policies.

The decision, in a lawsuit filed by UCLA Professor Richard Sander and the First Amendment Coalition, an open-government organization, establishes that administrative records of the State Bar, which is an arm of the Judiciary, do not get a free pass from all government-access requirements. The Bar had argued that its administrative records were uniquely exempt from access rules applicable to all other local governments and state agencies in California.

“This decision makes clear that no government agency, not even the State Bar, is above the law,” said FAC executive director Peter Scheer. “These records inform the Bar’s decisions and policies, and they can be released in a way that fully protects the confidentiality of Bar applicants,” Scheer said.

In ruling that the common law’s right of public access encompasses non-adjudicatory State Bar records, such as anonymous information about Bar applicants, the court brought renewed attention to a tool of public access that is typically overlooked in favor of access statutes like the Public Records Act, the Legislative Open Records Act, or special access rules covering state courts.

Professor Sander, whose publications in academic journals have sparked debate in academic circles, theorizes that affirmative action policies in elite law schools, by placing students in academic settings for which they have not been adequately prepared, increase the risk that minority and other favored students will underperform, both in law school and in admissions to the Bar.

Sander’s theory suggests that students targeted by affirmative action policies would be more successful, both in law school and as lawyers, if they attend less selective law schools in which there is less of a “mismatch” between their academic background and that of other students.

“This decision should please everyone who wants to get to the bottom of the law school mismatch question,” Sander noted. “We are hopeful that the State Bar will now work with us to create a dataset that protects the privacy of bar-takers while allowing important research to move forward.”

The First Amendment Coalition takes no position in the affirmative action debate, but is committed to principles of academic freedom and government transparency. FAC contends that the records sought by Professor Sander should be released and made available immediately both to Sander and to his critics.

The case name is Richard Sander et al v. State Bar of California, et al (Division 3, A128647). A copy is below. FAC is represented by James Chadwick of Sheppard Mullin (Palo Alto office), phone: 650-815-2605; 408-966-1379. Sander is represented by Jean-Paul Jassy of Bostwick & Jassy (in LA), phone: 310-979-6059.

Richard Sander et al v. State Bar of California, et al (Division 3, A128647)

Download (PDF, 171.14KB)

A California appeals court ruled May 11 in favor of FAC and the Sacramento Bee in a case involving public access to information about government pensions. The third district Court of Appeal ruled that the California Public Records Act requires county governments–in this instance, Sacramento–to disclose, by employee name, pension amounts paid to retired county employees.

Both the Sacramento Bee and FAC sued the county after being denied the pension information.  San Francisco attorney Karl Olson, a member of FAC’s Board, represented both FAC and the Bee.

Although it has been clear for some time that retiree-specific pension information is available for government retirees receiving pensions through the CalPERS system, county governments–and their unions–have argued that county employee retirement systems have a different status, and must provide more confidentiality to retirees (based on a 1937 law, Gov. Code sec. 31450 et seq.). The new court decision exhaustively considers, and rejects, this argument.

Pending lawsuits against the San Diego and San Francisco county pension plans involve the same legal issues. Superior Court decisions mandating disclosure in both those cases are currently on appeal. The question of access to county government pension payments ultimately may have to be decided by the California Supreme Court.–PS

The text of the Court of Appeal decision is available here.

This is the Sacraamento Bee’s news story on the court victory:

Sacramento County pension system loses privacy ruling

Published Thursday, May. 12, 2011

An appeals court ruled Wednesday that Sacramento County’s retirement system must turn over pension data requested by The Bee.

Amid public outcry about government pensions, The Bee and the First Amendment Coalition went to court to force the Sacramento County Employees’ Retirement System, or SCERS, to reveal the pension benefits of retirees.

When Superior Court Judge Allen H. Sumner ruled against SCERS’ bid to keep the information private, the pension system petitioned the 3rd District Court of Appeal to overturn the lower court’s decision.

But a three-justice panel of the appellate court said Wednesday in a 49-page opinion that SCERS “must disclose names and corresponding pension benefit amounts of its members. This does not include the members’ home or email addresses, telephone numbers or Social Security numbers.”

Peter Scheer, executive director at the First Amendment Coalition, called the ruling “a very strong decision.”

“The court took seriously the county’s argument,” he said. “But also after an exhaustive analysis, rejected it in an unconditional, unqualified and very clear way.”

The length of the court’s decision suggests justices were anticipating a review by the California Supreme Court, he said.

In 2007, the California Supreme Court ruled in favor of disclosure of public employee salaries, suggesting the higher court would also rule similarly on pensions, Scheer said.

It’s not clear whether the county system will appeal Wednesday’s ruling.

Richard Stensrud, chief executive officer of the retirement association, said Wednesday afternoon that he had not had a chance to study the opinion or discuss it with counsel. He said he could not respond to questions until the association’s board discusses the matter next week.

Karl Olson, an attorney representing The Bee, said this is the first appeals court decision on the issue.

Previously, trial courts in Sacramento and six other counties have ruled in favor of releasing information about public retirement plans. San Diego and Sonoma counties also are appealing two of those decisions.

The dispute was over the release of the names of county pensioners. The retirement system argued that releasing the names violated the 1937 law that created pension systems in Sacramento and other counties.

The Bee and the First Amendment Coalition contended it’s difficult if not impossible without having names to determine cases of pension spiking or favorable treatment – such as nepotism – that helped boost retiree payouts.

“It’s part of our mission to ensure there’s public scrutiny of government spending,” said Joyce Terhaar, executive editor of The Bee. “We’ve been reporting for several years that local governments are facing higher pension costs even as they’re cutting public services. In all that reporting, the Sacramento County retirement system was the only system to refuse us key information. We believe this clearly should be available to the public and are glad the court agreed.”

The opinion says The Bee submitted declarations from journalists describing increased public interest in pensions – including such issues as cashed-out vacation time, overtime pay in the final year of employment, either of which could result in pension spiking.

In addition, issues of double and triple dipping were raised. The lower court had overruled SCERS’ objections to these declarations.

The appellate court pointed out that the California Supreme Court has held that “the public has a general right to know the names and salaries of public officials and employees under the Public Record Act.”

Sacramento County supervisors in July had urged SCERS to not appeal its case to the appellate court, voting unanimously for the retirement system to make the pension information public.

GO TO FULL STORY

© Copyright The Sacramento Bee.

A FAC led amicus brief joined by more than 90 newspapers and other publications was filed Thursday in an appeal of a Brown Act law suit involving  the Tulare County Board of Supervisors.  The suit challenges the supervisors’ practice of holding lunchtime meetings–regularly and often–that were nonpublic and held without notification to the public or media.

The plaintiffs–the late Rich McKee, CNPA and the Visalia Times-Delta–argued that the lunches, which were charged to the county government and attended by a county lawyer, were “meetings” regulated by the Brown Act, which generally requires that meetings be publicly held and conducted according to an agenda that is made public in advance. The Superior Court disagreed and dismissed the suit. The appeal is from that dismissal.

It is highly unusual for so many amici curiae–literally, “friends of the court”– to sign an amicus brief. The FAC brief was signed by newspapers ranging from the state’s biggest dailies (LA Times, San Jose Mercury News, Sacramento Bee) to its smallest weekly newspapers, as well as news wires, out-of-state media associations and national media/First Amendment organizations.

Amici were attracted by concern about enforcing the Brown Act  as well as the opportunity to honor open-government advocate Rich McKee, who passed away last week. “The First Amendment Coalition is proud to be lead amicus on this excellent brief authored by lawyers Duffy Carolan and Fred Glasser at the Davis Wright Tremaine law firm,” FAC Executive Director Peter Scheer said Thursday. “The participation of so many amici is a wonderful way to honor the memory of Rich McKee.”

Rich McKee was a co-founder of CalAware (together with Terry Francke) in 2004 and a former Board President of FAC. Starting in the early 1990s, McKee filed many Brown Act and Public Records Act lawsuits against local governments, particularly in Southern California.

FAC’s amicus brief can be viewed here.

The First Amendment Coalition (FAC) has filed suit against the city of Calabasas to compel disclosure of an inspection report on conditions in an unoccupied residential property potentially posing health risks to nearby residents. The city, despite repeated requests, has refused to release a copy of the report to a neighbor, Gail Reznik, and other local residents who are concerned about toxic mold contamination found in the derelict property.

FAC and Reznik are co-petitioners in the lawsuit, filed yesterday in Los Angeles County Superior Court, alleging that Calabasas violated the California Public Records Act (CPRA) in refusing to disclose the inspection report and related records.

Calabasas claims it needn’t turn over the records because they are subject to the attorney-client privilege and a CPRA exemption for investigatory records in criminal cases. FAC and Reznik argue that these exemptions are inapplicable and can’t justify withholding from residents crucial information about an environmental hazard in their immediate neighborhood.

“When citizens face a threat to their family’s health, government has an obligation, both moral and legal, to be forthcoming with information,” said Peter Scheer, executive director of FAC. “We got involved in this matter because Calabasas officials seemed to think that if they ignored Ms. Reznik, she would go away and nothing would happen,” said Scheer. “Well, they’re wrong.”

Reznik’s concerns over the potential health threats posed by the nearby vacant and neglected property began in 2008, when the County of Los Angeles issued a citation for insect and rodent infestation, decaying trash, and other problems at the  deteriorating property. She took her concerns to the Calabasas City Council, which authorized an inspection of the property. Two years later Calabasas City Prosecutor Steven Rosenblit informed Reznik that, in addition to numerous other code violations, a court-ordered inspection of the property had discovered mold that “is hazardous to persons who enter without protective clothing and breathing apparatus.”

Reznik’s earlier fears were confirmed by Rosenblit’s emails. After neighbors, and later a family member, became ill, Reznik repeatedly requested a copy of the mold expert’s report and lab analysis identifying the type of mold found in the property.  The city, which  had turned over responsibility for the clean up to the property’s owner, said no. Reznik made several attempts to challenge the denial, but was turned down each time.

“If there truly was no health risk, an abatement order for demolition and removal of all interior contents would not have been approved by the court,” said Reznik.  “I felt it was egregious that the City Council members and City Attorney, not one of whom is a health care professional, could risk the well being of citizens they were elected to represent and protect.

“FAC and Reznik are represented by Judy Alexander, an attorney in Soquel CA.  “Even if the CPRA exemptions claimed by Calabasas are applicable, which they are not, they can be waived and should have been here, because the public interest in knowing the facts so far outweighs any interest in hiding them,” said Alexander.

Click here to read and/or download the following court documents :

• Civil Case Cover Sheet — FAC and Gail Resnik v. City of Calabasas
• Civil Cover Addendum — FAC and Gail Resnik v. City of Calabasas
• Petition for a Writ of Mandate: FAC and Gail Reznik vs. City of Calabasas
• Petition Exhibits – FAC And Gail Resnik v. City of Calabasas
• FAC and Resnik vs. City of Calabasas: Points and Authorities

Sunshine Week 2011 has arrived and this year FAC has partnered with the NFOIC (National Freedom of Information Coalition) to provide a mobile version of their comprehensive Sunshine Week listings.

Sunshine Week Coast to Coast, featured on FAC’s iPhone App, iOpen Gov, is  a guide to the events, resources, editorials, news and special features happening nationwide.

The free app for iPhone, iPodTouch and the iPad, enhances the event listing with app tools that make it easy to get more information, view video, visit Web sites, add events to your calendars, share the listing via email and Twitter and Facebook, and access maps and driving directions to the venues.

Check out what Sunshine Week Coast to Coast looks like on iOpenGov at http://popplet.com/app/#/7663. Download iOpenGov at http://bit.ly/OpenGovApp.

Sunshine Week is a national initiative to promote a dialogue about the importance of open government and freedom of information. Participants include news media, civic groups, libraries, nonprofits, schools and others interested in the public’s right to know.

Sunshine Week as a national effort is spearheaded by the American Society of News Editors. The key funder has been the John S. and James L. Knight Foundation, with significant support from ASNE Foundation.

First Amendment lawyer Duffy Carolan–who is also a long-time Board member of the First Amendment Coalition–will receive a special honor from the Society of Professional Journalists (NorCal Chapter) at an award ceremony on March 16.

Carolan, a lawyer in the San Francisco office of Davis Wright Tremaine LLP, is receiving the organization’s “Legal Counsel” award in recognition of 20 years of successfully defending media clients, individual journalists and others in free speech, libel, and freedom of information cases.

In a press release, SPJ said of Carolan:

“As an attorney first with Crosby, Heafy, Roach and May and since 1998 with Davis, Wright & Tremaine, Duffy has represented the Oakland Tribune, the Contra Costa Times, the Associated Press, the San Mateo County Times and many others.

Since 2007, Duffy has served pro bono as the lead attorney for the Chauncey Bailey Project. She currently serves on both the Board of Directors and the Executive Committee of the First Amendment Coalition.”

Read full press release here:

Society of Professional Journalists — Northern California.

Bruce Brugmann, founding editor of the San Francisco Bay Guardian, and First Amendment Coalition board member, has been named as a 2011 Alumni Award winner by Columbia J-School.

Brugmann, who graduated from Columbia in 1958, will be honored at ceremonies in April alongside three other recipients of the 2011 Alumni Award:  HRH Rym Ali; NBC News correspondent Rehema Ellis; and Orlando Sentinel government/politics editor Robert Shaw.

In announcing the winners, Columbia-J School described Brugmann’s 40-years at the Guardian as a demonstration that with “personal resolve and courage…there is still room, and a role, for the little guy.”

Bruce Brugmann ’58
Since Bruce Brugmann and his wife, Jean Dibble, founded the San Francisco Bay Guardian more than 40 years ago, the feisty weekly with a slogan of “raising hell and printing the news” has never let up on championing the public interest and challenging the existing power structure in government, business, and the media itself. One of the very first alternative papers in the country, the Bay Guardian recently won its antitrust case against SF Weekly when the California State Supreme Court refused to review lower court rulings ordering the Weekly to pay $21 million in damages over predatory pricing. The outcome of the case could still be determined by the ongoing settlement negotiations. The Bay Guardian’s battles with the local electric utility are almost legend. Brugmann has championed a free and responsible press as a founder and longtime member of the California First amendment Coalition, and is an honored fellow of the International Press Institute and an active member of the Board of Directors of the Inter-American Press Association. He has demonstrated that with professional and personal resolve and courage, that there is still room, and a role, for the little guy.

Columbia j-school announces 2011 Alumni Award winners | Poynter.

If the U.S. succeeds in bringing WikiLeaks to heel for publishing classified documents, it could end up costing the media its ability to publish classified information with impunity. -db

Los Angeles Times
Editorial
December 9, 2010

U.S. officials reportedly are hoping to capitalize on the arrest of WikiLeaks founder Julian Assange in London this week by having him extradited to this country for criminal prosecution. Based on what is known about WikiLeaks’ release of hundreds of thousands of confidential documents, that would be a mistake.

Assange was jailed in Britain on Tuesday in connection with charges of sexual assault filed against him in Sweden. U.S. officials, meanwhile, are clearly eager to prosecute him for the leaks, if not under the 1917 Espionage Act then for other criminal charges, including receiving stolen property. Atty. Gen. Eric H. Holder Jr. said that a “very serious criminal investigation” is underway.

But there are potential legal problems with any prosecution. Equally important, punishing Assange for publishing leaked documents would upend an understanding, honored by both Democratic and Republican administrations, that laws against the release of classified information won’t be enforced against the media.

Most speculation about a prosecution has focused on the Espionage Act. Some language in that law arguably could be applied to Assange. For example, it forbids anyone who has unauthorized possession of national defense information to communicate, deliver or transmit it to “any person not entitled to receive it.”

But the same section requires that the person providing the information have reason to believe it “could be used to the injury of the United States or to the advantage of any foreign nation.” Applying that language to Assange is a tricky business. He would no doubt argue — honestly — that his expectation was that release of the documents actually would serve U.S. interests by exposing official wrongdoing to the citizenry.

Prosecuting Assange for receiving stolen property also would be difficult. He could argue that he obtained not government records — the originals of which are still in the possession of the Pentagon and the State Department — but copies.

The most important argument against prosecuting Assange, however, is that doing so would undermine freedom of the press. Penalties have been imposed in the past on government employees who have leaked confidential information, but not on the reporters or editors who published it. Is Assange a journalist? Assuming that he received and published information rather than obtaining it on his own, the answer seems to us to be yes. In principle, we can’t see a difference between WikiLeaks and one of the newspapers that published the information.

Governments and private citizens are free to excoriate Assange and to decline to assist his operation, as Amazon did in removing WikiLeaks from its servers. But, based on present knowledge, criminal prosecution would be an ominous overreaction.

Copyright 2010 Los Angeles Times     FAC Content Use Policy

The US Supreme Court yesterday heard arguments in a FOIA personnel exemption case,  Milner v. Department of the Navy.  FAC along with 19 other news organizations filed an amicus brief for the case.

The Washington Post‘s and other news accounts suggest the Court was skeptical of the government’s effort to expand a seemingly narrow FOIA exemption in order to withhold records that, while potentially sensitive, are not sensitive enough to warrant classification.

At issue is a FOIA request for unclassified Navy maps  showing the extent of damage expected in the event of an explosion at a military ammunition dump on an island off the coast of Washington state. The Navy denied the request. The Obama administration is defending that decision under a FOIA provision that exempts from disclosure documents “related solely to the internal personnel rules and practices of an agency.”

FAC signed on to an amicus brief, prepared by the Reporters Committee for Freedom of the Press, that opposes the government’s position.

BRIEF AMICI CURIAE OF THE REPORTERS
COMMITTEE FOR FREEDOM OF THE
PRESS AND NINETEEN NEWS MEDIA
ORGANIZATIONS IN SUPPORT OF PETITIONER (Pdf.)

High court questions broad use of FOIA exemption

The CA Supreme Court declined to review the $21 million damage award a lower court had ordered the SF Weekly to pay its rival, the SF Bay Guardian, in 2008. The Bay Guardian successfully argued that the Weekly had slashed advertising prices to drive the Bay Guardian out of business.  Reportedly, management of the papers are now trying to negotiate a settlement. Bruce Brugmann, the Publisher of the San Francisco Bay Guardian is a member of the FAC Board of Directors.

The Associated Press
Wednesday, November 24, 2010; 12:09 PM

SAN FRANCISCO — California’s Supreme Court has declined to review a $21 million damage award against a San Francisco newspaper accused of slashing advertising prices to drive a rival publication out of business.

The First Amendment Coalition has posted on the internet more than 1,700 CalPERS documents relating to an East Palo Alto real estate investment in which CalPERS lost all of its $100 million investment.  The records–which include the partnership agreement, offering memorandum and email exchanges about the failed investment—were ordered released by the Superior Court in San Francisco.

The documents have been released in two sets, one on September 24 and the second on September 30. Follow the links below to view the documents.

–All documents released Sept. 24 (approximately 1175 pages):

Single File

–All documents released Sept. 30. These are four files (approximately 115 pages each):

File One

File Two

File Three

File Four

You can view the Court’s decision here:
http://bit.ly/bdqtjG

A California report with a series of proposals to improve media and public access to court records and state proceedings has been released for “public comment” by the Judicial Council.

First Amendment Coalition

September 22, 2010

By Susana Montes

The draft report includes 11 recommendations from the Bench-Bar-Media Committee, appointed by the California Supreme Court. The recommendations range from increasing access of cameras and other recording devices in the courtroom, instituting public notices for gag orders by posting on local court websites; and a proposal to develop a rule that requires all courts to post notice of any application for, or entry of sealed records.

The report also addresses the need to educate the public and media about legal terminology; create public information officer (PIO) positions to assist in the courts; develop regional media access plans and create online training information for court staff and judges.

The report and council’s invitation to comment are both available on the California Courts website. The deadline for public comments is 5 p.m., Friday, October 29, 2010.

The Bench-Bar-Media Committee who drafted the report was  formed by California Chief Justice Ronald M. George in 2008. Some of the members who provided recommendations include appellate and superior court justices, attorneys specializing in the First Amendment, journalists, and academics.  The committee is chaired by Associate Justice Carlos R. Moreno.

The idea behind the committee recommendations is to foster better understanding and amiable working relationships between judges, lawyers and journalists, the report states.

Here are some of the most salient items:

Use of Cameras and Other Recording Devices in the Courtroom

Prohibition of media coverage in the courtroom is often broad. The committee concluded that Rule 1.150 of the California Rules of Court needs to be amended to allow cameras or other recording devices in the courtroom “unless sufficient reasons exist to prohibit or limit their use.”
Currently, Rule 1.150 unilaterally prohibits recording devices unless access is granted by previous authorization.  A judge is not required to make findings or a statement of decision.
This proposal would revise the “standard” media request form needed to permit coverage inside a courtroom, so that judges are required to state the reasons and findings regarding the use of recording devices, when access is denied.

This process would educate journalists on court decisions, and would allow greater transparency in the process, the report says.

The committee acknowledges, however, that there is a balancing act between the public’s desire to use personal electronic devices while in court and the court’s duty to protect the integrity of proceedings, as new technological devices continue to develop.

Gag Orders

The report recommends a uniform statewide rule similar to those governing sealing records and consistent with the opinion in Hurvitz v. Hoefflin (2000) 84 Cal.App.4th 1232. That ruling requires a specific finding of a legitimate competing interest that overrides the public’s right of access and justifies some form of gag order. The ruling also limits the scope of any gag order to the narrowest restraint and shortest time period necessary to protect the identified overriding interest.

The committee also recommends that the new rule provide a means for the public and the media to be notified of the filing of a gag order and, thereby, given an opportunity to challenge it. This could be done by posting gag orders on the specific court’s website or in the Judicial Council website within five business days of the filing.

Orders Sealing Records

The report recommends to develop a rule of court requiring all courts to post notice of any application for, or entry of, an order sealing a record on their local websites within five court business days after filing or entry. An alternative to this would be to require that such a notice be sent to the Judicial Council for publication on the judicial branch’s website within five court business days.

Although this would require additional resources and staff, the committee believes this procedure is essential to inform the public about documents that could be considered high-profile, newsworthy cases.

Conflict Resolution System

The Committee also addresses the need to create a conflict resolution system “to further enhance relationships among the courts, bar, and media and to reduce unnecessary conflicts among these stakeholders.” This item has two main points: First, the implementation of a regional media access plan and second, when resources permit, the creation of three public information officer positions to be based in each of The Administrative Office of the Courts (AOC) regional offices.

According to the report, the regional media access plan would be consulted before media coverage of a court proceeding, whenever there is a conflict between a court, attorney, or media representative .

Final Decisions

According to Greg Moran, a reporter with the San Diego Union-Tribune and a committee member, the recommendations will likely improve working relationships between journalists, lawyers and judges. However,  it took a while to reach consensus while drafting the report, he said.

“I expect further resistance on the camera and sealed records proposal,” said Moran. “I suspect objections from different parties.”

The two-year Bench-Bar-Media Committee will meet in early December 2010 to review the public comments on the draft report. On Spring 2010, the Judicial Council of California will decide whether to try to implement the proposed reforms. Some reforms the Council can make on its own (through changes to rules of court); others would require legislation, said Executive Director of the First Amendment Coalition Peter Scheer, a member of the committee.

The Superior Court in San Francisco ruled Tuesday in FAC’s favor against CalPERS regarding access to records on their PageMill real estate investment. According to the ruling (FAC v CalPERS Order), the Court agreed with FAC that Govt Code section 6254.26, the exemption for certain information related to “alternative investments,”  does NOT apply to real estate investments. The Court also rejected CalPERS’ arguments that the records were subject to exemption as “trade secrets” or on the basis of CalPERS’ contractual promise of confidentiality to its investment partner.  Reporter Thomas Peele of the San Jose Mercury News filed the following story on the ruling.

CalPERS must release documents detailing $100 million investment loss

By Thomas Peele
Contra Costa Times

Posted: 09/14/2010 01:30:10 PM PDT

Updated: 09/14/2010 02:13:12 PM PDT

SAN FRANCISCO — A judge on Tuesday ordered the mammoth pension fund for state government workers, CalPERS, to release documents detailing how it lost $100 million in a failed East Palo Alto real estate development.

The amount of public money involved clearly tilted the matter to disclosure, San Francisco Superior Court Judge Charlotte Woolard wrote in a six-page decision.

The First Amendment Coalition sued CalPERS in July after it refused to release documents detailing its investment in Page Mill Properties, an East Palo Alto low-income housing development criticized for rental increases that made in unaffordable for the people it was designed to help.

“Score one for David,” said attorney Karl Olson, who represented the San Rafael-based coalition. “It is very gratifying that nonprofit First Amendment Group has won an important victory against the nation’s largest pension fund.”

The Sacramento attorney who represented CalPERS, John T. Kennedy, did not immediately return a message Tuesday.

The case was simply about understanding how CalPERS “made such a big and bad investment,” said Peter Scheer, the coalition’s executive director. He said he hoped to be able to offer the documents electronically to news organizations as soon as the California Public Employees Retirement System releases them. Olson estimated more than 600 pages will be made public.

Included in those records will be the partnership agreement between the pension fund and Page Mill, Olson said. That document, Scheer said, should help unravel how the $100 million investment was lost.

The documents should show “what kind of vetting process” went on at CalPERS in what Scheer described as an uncharacteristic risky real estate investment for the retirement fund.

Scheer and Olson said that as investment markets staggered in recent years, CalPERS has made riskier investments in order to meet its pension obligations. Taxpayers are liable to make up losses, making investment strategies a public concern, they said.

Page Mill was criticized for using East Palo Alto’s rent-control ordinance to hike rents to unaffordable levels for the development’s tenants and replacing them with renters who were able to pay market rates. Scheer said the tactics contradicted with CalPERS’ stated policy of making socially responsible investments, another factor in pursuing disclosure.

CalPERS “claimed to have been blind-sided” by Page Mills’ collapse, Scheer said. The record will help verify that, he added. Nineteen other investors — but not CalPERS — have sued the developer for fraud in Santa Clara County court.

In refusing to release all the investment records the coalition sought earlier this year, CalPERS cited a state law restricting access to details concerning public investments in hedge funds and with venture capitalists.

But Woolard ruled that the law didn’t apply to a traditional real estate investment like Page Mill.

She also wrote that though Page Mill officials asked that some documents be considered private, it does not trump the public’s right of access.

“Assurances of confidentiality cannot convert public records into private records,” she wrote. “CalPERS cannot allow Page Mill or another party to control the release of information.”

CalPERS also claimed that there was little public interest in disclosure, but Woolard rejected that claim, writing, “This is not a good case for asserting interest in nondisclosure because the investment in question is now largely defunct with CalPERS losing the amount it invested.”

Thomas Peele is an investigative reporter who writes about government transparency. Contact him at tpeele@bayareanewsgroup.com.

In keeping with the new normal of polarized politics, FAC has launched a new feature that views the world of First Amendment issues as consisting of good guys and bad guys.

The good guys, on whom we bestow a “First Amendment Kiss,” are people and institutions who, by their acts, words, or example, strengthen free speech safeguards, public access to government information and decision-making, and the accountability of elected officials.  The bad guys, whom we recognize with a “First Amendment Kiss-Off” award, are, well, the people and institutions who resist what the good guys are trying to do. To paraphrase Supreme Court Justice Potter Stewart’s comment about pornography, we know the bad guys when we see them.

FAC supporters are, by definition, good guys. As such, you are invited and encouraged to nominate recipients of the First Amendment Kiss and  Kiss-Off honors. New honorees are posted to FAC’s website. Please “follow us” on Twitter for those postings and for a daily stream of news items, original commentaries, our lawyers’ answers to questions posed by folks like you, as well as news about FAC’s litigation and other initiatives. –Peter Scheer

The First Amendment Coalition has sued CalPERS to obtain records on why the pension fund invested $100 million in Page Mill Properties, the biggest residential landlord in East Palo Alto -SMD

Palo Alto Daily News

By Bonnie Eslinger

July 20, 2010

A nonprofit public interest organization has sued CalPERS to obtain records that may shed light on why the pension fund would invest $100 million in Page Mill Properties, which until recently was the biggest residential landlord in East Palo Alto and came under fire for substantially raising rents.

“CalPERS’ investment of $100 million in a project that has yielded nothing raises significant questions,” states the lawsuit filed Friday by the First Amendment Coalition.

The suit focuses on CalPERS’ investment in Page Mill Properties II, a real estate investment fund connected to the controversial company’s real estate holdings in East Palo Alto. Last year, after Page Mill defaulted on a $50 million balloon payment, all 101 of its rental properties in East Palo Alto were assigned to a court-appointed receiver and reverted to Wells Fargo Bank. CalPERS wrote off the investment.

Critics had attacked Page Mill Properties for taking advantage of East Palo Alto’s flawed rent stabilization ordinance by raising rents by more than one-third in some cases and forcing out tenants who couldn’t pay the hefty increases.

The suit notes that CalPERS’ records show a $900 million loss on a real estate investment in the San Joaquin Valley as well as investment losses in Manhattan properties that, like Page Mill, have been accused of abusive management practices that pushed out low-rent tenants.

Peter Scheer, executive director of the First Amendment Coalition, said the records request is an effort to gain insight into what influenced CalPERS’ financial decisions regarding its Page Mill investment. It specifically seeks the offering memorandum and partnership agreement for the deal, as well as related internal e-mails and other communications.

The First Amendment Coalition’s legal complaint also notes that Attorney General Jerry Brown sued two former CalPERS officials in May for fraud, alleging that tens of thousands of dollars were spent on key senior executives with the pension fund in an effort to influence investment choices.

“This petition should be granted so that the public can see how CalPERS manages the staggering $210 billion in assets with which it has been entrusted by government retirees, their dependents, California taxpayers and the public generally,” the suit states.

The First Amendment Coalition also sued CalPERS in 2004 to get information on the management fees it pays to individual venture capitalists, hedge fund managers and others handling the private equity funds in which the pension fund invests.

E-mail Bonnie Eslinger at beslinger@dailynewsgroup.com.

FAC—Monday July 19—The First Amendment Coalition (FAC) today announced that it has sued CalPERS, the retirement system for California government workers, over access to records about the agency’s ill-fated investment in an East Palo Alto residential real estate development that has gone bust–at a loss to CalPERS of all of its $100 million stake in the controversial venture.

FAC, a nonprofit based in San Rafael, CA, filed suit Friday in San Francisco Superior Court, demanding access under the Public Records Act and Prop 59 to records shedding light on the factors influencing CalPERS’ financial commitment in 2006 to the Page Mill Properties II project. FAC’s initial record request was filed in January. Although CalPERS has turned over other records, it has withheld the offering memorandum and partnership agreement for the Page Mill deal, as well as internal emails and other relevant communications.

CalPERS’ Page Mill investment has been controversial, not only because of its losses, but also because of allegations by community groups that the project’s management sought to oust low-rent tenants in order to increase cash flow needed to finance the project’s heavy debt. CalPERS was a major investor in other real estate developments involving the displacement of low-rent tenants, including the massive $5.4 billion Peter Cooper Village and Stuyvesant Town apartment complex in lower Manahattan. CalPERS sunk $500 million into that venture, which has also collapsed.

“The public has an overriding interest in learning how CalPERS could have determined that Page Mill, despite the ouster of poor tenants, the high debt levels and other risks, was an appropriate investment for CalPERS’ assets,” said FAC executive director Peter Scheer. “Only by understanding how the investment was made can the public be confident that CalPERS has made sufficient changes to prevent this from happening again.”

CalPERS has come under increasing scrutiny due to heavy recent losses, which have triggered bills to state and local governments for bigger pension contributions. CalPERS’ performance in 2008 was one of the worst in the country among public pension plans (although, like most public pensions, it returned to profitability in 2009). Oversized real estate losses–nearly double the rate of loss on CalPERS’ investments overall–are a major reason for CalPERS’ financial woes.

CalPERS historically has been a conservative investor in real estate. Starting in 2002, however, CalPERS began a series of real estate deals involving increased leverage, large, concentrated investment positions, the use of recourse debt, and other factors that increased CalPERS’ expected returns. However, they also greatly magnified CalPERS’ risk.

“Socially responsible investors aim to do good and to do well,” said Karl Olson, the lawyer representing FAC in the CalPERS case. “In its disastrous Page Mill investment, CalPERS did bad–by funding the ouster of poor tenants from rent-regulated apartments–and did very badly.”

FAC is a section 501(C)(3) nonprofit organization dedicated to freedom of speech, freedom of information, and government accountability. FAC’s website is HERE.

This is the petition filed Friday to initiate the lawsuit against CalPERS.

Here is FAC’s brief in support of the petition.

CONTACTS:

Peter Scheer, FAC
415-886-7081 (direct)
pscheer@firstamendmentcoalition.org

Karl Olson, FAC counsel for CalPERS case
Ram & Olson
415-433-4949
kolson@ramolson.com
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In an important legal victory, the Superior Court in Sacramento has ruled that the pension system for county government workers must make public retirees’ names, and their pension benefits, for all retirees receiving $100,000 or more per year. The decision is the result of a lawsuit filed jointly by the First Amendment Coalition and the Sacramento Bee.

Here is the court’s written opinion:

Download (PDF, 71.89KB)

From the Sacramento Bee:

Judge orders benefit disclosure by Sacramento County pension system

By Robert Lewisrlewis@sacbee.com
last updated: July 28, 2010 10:09:54 AM

A Sacramento Superior Court judge this week ruled that Sacramento County’s retirement system can’t keep former workers’ pensions secret.

The lawsuit, filed by The Bee and the First Amendment Coalition – a nonprofit, nonpartisan group dedicated to free speech – had sought the names, pensions and other related details for all retirees.

In ruling against the county system, Judge Allen Sumner wrote that the “the public interest in disclosing this information outweighs any interest in keeping it secret.”

Richard Stensrud, chief executive officer of the Sacramento County Employees’ Retirement System, said he will recommend an appeal to his board, which meets today.

“With all due respect, we disagree with the ruling and we believe it’s an erroneous interpretation of the law,” Stensrud said.

In the wake of legal opinions forcing several California counties to release pension data, other counties did so voluntarily. At the state level, pensions above $100,000 a year for both the state retirement system, CalPERS, and the California teachers system, CalSTRS, were posted online by an advocacy group.

The Bee in May 2009 had asked for only those former employees earning more than $100,000 a year in retirement as well, but amended that request last February to include all retirees.

Sacramento County’s retirement system, however, had refused, claiming information about individual retirees is confidential and maintaining that its own regulations required it to keep the information private.

The judge found the “individual retiree” exemption was limited to personal information, such as addresses. He referred to a state Supreme Court decision stating that while public employees may not be comfortable with having their compensation publicized, that is a reality of public employment.

Sumner also cited the current economic climate in ordering the information release.

“Sacramento County faces difficult budget decisions,” he wrote. “Its reduction of critical services has generated significant public debate. The public has a strong interest in knowing how government is spending their money, and a constitutional right to such information.”

Attorney Karl Olson, who represented The Bee, described the ruling as “well-written,” saying it “displays great sensitivity to the public’s right to know.”

“We think it’s clearly correct in light of the Supreme Court’s 2007 ruling that public employee salaries are public information,” Olson said. “Pensions are a huge issue for our cash-strapped state and local governments, and the records at issue here will shed important light on that issue.”

Coming atop similar decisions around the state, including in Stanislaus County, the ruling may dissuade other counties from fighting similar requests for openness, said Peter Scheer, the First Amendment Coalition’s executive director.

“This may be the nail that finally closes the coffin on the effort to prevent the public from seeing pension information for county government employees,” Scheer said.

Scheer added that an appeal would not only cost the Sacramento retirement system more money in legal fees but a ruling in a higher court could set a binding precedent.

“If that’s (their) inclination,” Scheer said, “I’d say bring it on.”
Copyright © 2010, The Modesto Bee, 1325 H St., Modesto, CA 95354
Phone: (209) 578-2000.

The media coalition organized by the First Amendment Coalition (FAC) has been successful in securing disclosure of the search warrant affidavit used to search an online journalist’s home for evidence concerning the Gizmodo/Apple/missing iPhone investigation.  Joining FAC in the unsealing motion were the Associated Press, Wired.com, Bloomberg News, CNET, the LA Times and the California Newspaper Publishers Association.

San Mateo Superior Court Judge Clifford Cretan, over the objection of the District Attorney’s Office, ordered the release of the affidavit and other documents used to obtain the search warrant for the home of Jason Chen, an editor-reporter for gadget-blog Gismodo, which is owned by Gawker Media. Here are links to the unsealed records: affidavit, search inventory, sealing request and order.  Also on FAC’s website are copies of the search warrant and Judge Cretan’s May 14 unsealing order.

The affidavit adds considerable detail to previous accounts of how the secret prototype for the next-generation Apple iPhone, mistakenly left in a Redwood City restaurant by an Apple engineer, ended up in the hands of Chen and Gawker Media–which reportedly paid at least $5,000 for the phone–before it was returned to Apple. 

The affidavit describes an exchange of email between Gizmodo editor Brian Lam and Apple CEO Steve Jobs concerning the return of the phone. Brian Hogan is identified as the person who found the iPhone and made it available to Gizmodo in exchange for a cash payment. The affidavit also describes conversations with Apple’s top lawyers regarding the value of the missing prototype, the harm to Apple from publicity about its features, and other information.

Conspicuously absent from the affidavit is any mention of Chen’s status as a journalist, although Judge Cretan, at the Friday hearing, stated that he had been aware, when approving the warrant, that Chen was a journalist. This is an important issue because both federal law (Privacy Protection Act, 42 USC 2000aa) and state law (California Penal Code section 1524(g)) require government authorities to proceed by means of a subpoena, rather than a search warrant, in obtaining evidence from journalists. 

Subpoenas are favored because they preserve an opportunity to raise objections or defenses and because the intrusiveness of searches-by-warrant threaten the wholesale exposure of journalists’ confidential sources. This distinction is highlighted in an article I wrote for publication last week in cnn.com. (It also appeared in the San Francisco Chronicle.

The warrant affidavit also makes clear that, at least at the time of the search of his home, Chen was viewed by the DA’s office as a suspect and potential defendant, not merely as a witness. This had been in doubt until Friday’s hearing. Although Chen’s status as a suspect could affect the applicability of the federal restriction on use of warrants in searches of journalists, the restriction based on California law should remain available.

The media coalition was represented by FAC general counsel Roger Myers and his colleagues at Holme Roberts & Owen in San Francisco.-PS

FAC–The First Amendment Coalition and major news media have requested the California Court presiding over the Gizmodo/missing iPhone matter to unseal judicial records relating to the warrant issued for the search of an online journalist’s home and the seizure of his computer, hard drives and other digital files.

The motion to unseal the warrant affidavit (which you can see here) was filed May 5 and requests a hearing immediately. The motion argues that the affidavit is a public record that must be disclosed unless the District Attorney or other parties, in a hearing, can demonstrate a compelling justification for keeping the record secret.

Not only is the affidavit under seal, but the court order authorizing the sealing is itself under seal, according to the media group’s filing. “Court files and court proceedings are, with only few and narrow exceptions, supposed to be open to the public,” said FAC executive director Peter Scheer. “Our motion requests adherence in this case to that crucial principle of openness.”

Joining FAC in the unsealing motion are the Associated Press, Bloomberg News, CNET, CNPA, the Los Angeles Times and Wired.com. They are represented by FAC general counsel Roger Myers, an attorney with Holme, Roberts & Owen in San Francisco, and other lawyers at the Holme firm.

The group contends that the public has a legitimate interest in assuring that search warrants, which require a showing of “probable cause” that the subject of the search has evidence of a crime, are requested and issued only when appropriate, on the basis of procedures that are fair and complete.

Since the search of the home of Gizmodo editor Jason Chen on April 23, questions have been raised about the DA’s use of a search warrant, which is highly intrusive and deprives a witness of a chance to object, instead of a subpoena.

Although the media group’s filing does not address the lawfulness of the search, it contends that debate about that and related issues underscores the public interest in the affidavit for the search warrant.

FAC–The First Amendment Coalition has filed suit against the Los Angeles City Council over the Council’s failure to tell the public, in advance, that it was about to consider and vote on layoffs of thousands of government workers. FAC’s suit, claiming a “pattern and practice” of violations of the Brown Act, requests declaratory and injunctive relief.

At issue is a City Council special meeting on February 18 at which the Council voted to reaffirm a prior commitment to eliminate 1,000 city jobs and, on top of that, to lay off 3,000 more city employees. Such a controversial action normally would be expected to draw a large crowd of citizens to the Council meeting, many of whom would request to speak about major layoffs. But that did not happen at the February 18 meeting.

The reason? The published agenda notice for the layoff decision (item 15) described the contemplated action as follows:

“Consideration, discussion and possible actions addressing the Fiscal Year 2009-10 and 2010-11 budget deficits, City staff and others to report on budget balancing matters and possible closed executive session as it may relate to bargaining instructions relative to negotiations with employees and employee matters and to provide for the ability to meet in closed executive session as it may relate to bargaining instructions relative to negotiations with employees and employee organizations.”

“You actually have to try hard to write a meeting notice announcing massive layoffs without giving a clue that any jobs will be eliminated,” said Peter Scheer, FAC’s executive director. “But the LA City Council has truly mastered the art of writing a notice that confuses, misleads, obfuscates–everything but tell the public what is going on,” Scheer said.

The complaint states that, far from this being an isolated event, the identical notice language was used repeatedly for 37 City Council meetings from February 10 to April 21. In fact, Council motions covered by the repeating notice provision were acted on at just four of these meetings—which serves only to compound the confusion of citizens attempting to find out whether an issue they care about will be taken up at a given Council meeting.

On March 16, FAC delivered a letter to the LA City Council demanding a “cure and correction” of the February 18 Brown Act violation. The Los Angeles City Attorney responded that the agenda Item description “adequately informed the public of the subject under consideration.” FAC filed suit on April 28.

FAC is represented in the case by media attorney Judy Alexander, who serves as special litigation counsel to FAC. For a copy FAC’s complaint in the lawsuit, go here.

The Knight Center for Digital Media Entrepreneurship , under the direction of Dan Gillmor, a leading expert in digital media, and FAC Board of Directors member, has been awarded the 2010 Arizona State University President’s Award for Innovation. -df

Knight Center Wins ASU Innovation Award

April 16, 2010 · Published By Editor
East Valley Living, Greater Phoenix & East Valley

PHOENIX – The Knight Center for Digital Media Entrepreneurship at the Walter Cronkite School of Journalism and Mass Communication has been awarded the 2010 President’s Award for Innovation from Arizona State University.

ASU gives the award each year to recognize innovative and multidisciplinary programs and projects.

Knight Center students have launched more than 20 digital media projects and companies since the center was established in 2008. They include everything from a service that turns digital signs into a kind of news bulletin board to an online news and information site for Phoenix light rail riders. The latter was a winner of a $95,000 Knight Foundation News Challenge grant in 2009.

Examples of many of the projects can be found at knightcenter.asu.edu.

Funded by the John S. and James L. Knight Foundation and the Ewing Marion Kauffman Foundation, the Knight Center brings together students from various disciplines throughout ASU to develop their own digital media products and services.

The students work under the direction of Knight Center Director Dan Gillmor, a leading expert in digital media, and Entrepreneur-in-Residence CJ Cornell, a venture adviser with experience in Silicon Valley and Los Angeles. Gillmor and Cornell, both of whom have been media entrepreneurs, are professors of media entrepreneurship in the Cronkite School.

“The center teaches students how to innovate and think and act like entrepreneurs – something that’s more important than ever in a rapidly changing digital media world,” said Cronkite Dean Christopher Callahan. “Under Dan’s and CJ’s leadership, students are developing projects that we think will help shape the media of the future.”

The students have launched new Web sites, started their own companies, successfully pitched ideas to venture capitalists and generally learned to think like entrepreneurs, Gillmor said.

“CJ and I both have been media entrepreneurs, and we want to help students appreciate the start-up culture – the fun, the hard work, the ambiguity and the satisfaction of working in a fast-moving environment,” he said. “And we want them to play a big role in the next wave of community information.”

Gillmor came to ASU in January 2008, and the center became fully operational later that year with the opening of the new Cronkite building on the ASU downtown campus. He and Cornell teach a class in entrepreneurial thinking and work with students on individual and team projects. The students come from various majors across the campus, including engineering and business.

Cronkite senior Jeremy Rudy of Bozeman, Montana, who took the class last fall, already has launched two digital start-ups. At the Knight Center, he came up with a new service that allows individuals to pursue their education and connect with experts and instructors online.

“I learned so much,” Rudy said. “It was great because the environment was very entrepreneurial. “Now I want to work for start-ups and gain more experience, then go out on my own.”

Gillmor, who often tells students they need to invent their own jobs, said he wants students to understand the Silicon Valley culture of fast-paced innovation where the fear – and cost – of failure is low.

That’s a message that Cronkite graduate student Jenny Matthews of Salt Lake City said she has absorbed. Helping to develop a website for single fathers, she said, has taught her that technology isn’t as scary as she thought.

“I learned that if you have an idea or something you want to do, there are a lot of ways to do it that are free or almost free,” she said. “I feel more confident that I have the skills to take an idea and make it real.”

Cronkite graduate student Lisa Ruhl of Agawam, Mass., is part of a team that is developing a cell phone service for immigrant women in need of services such as crisis abuse intervention or health care. The project is one of three developed by students in the Knight Center that have been named finalists for the ASU Innovation Challenge, a program that provides seed money for students to develop their ideas into viable products.

At the Knight Center, Ruhl said she is learning to appreciate the business side of journalism and how to work with online developers.

“I’m learning a different skill set that not all journalism schools teach,” she said.

In giving the award, ASU President Michael M. Crow emphasized the creative and entrepreneurial skills the center teaches. Students, he said, are learning to “help lead the changing media industry.”

Crow presented the President’s Awards at a reception on the ASU Tempe campus last week. In addition to the innovation award, recognition went to programs that advanced sustainability and social embeddedness.

The Knight Center is the result of a Knight News Challenge grant awarded to the Cronkite School in 2007. The three-year, $552,000 gift was one of the largest granted in the first year of the News Challenge. It is matched dollar for dollar with a grant from the Kaufman Foundation, part of a $5 million gift to ASU for entrepreneurship programs.

Source: Arizona State University

The Knight Center for Digital Media Entrepreneurship is devoted to the development of new media entrepreneurship and the creation of innovative digital media products. For more informaiton, visit http://knightcenter.asu.edu/

A California Superior Court judge has ruled that the State Bar Association, which regulates the legal profession, is not required to release data requested by the First Amendment Coalition and researchers’ studying the effect of law school affirmative action policies. The Court’s ruling in the controversial litigation will be appealed.

Judge Curtis E.A. Karnow of the California Superior Court for San Francisco ruled March 29, 2010 that the State Bar is not legally obligated to release the data sought by Richard H. Sander, a professor of law at the University of California at Los Angeles, and Joe Hicks, a former governor of the California state bar who is involved in a consortium of researchers organized by Mr. Sander. The two men were joined in their lawsuit by FAC, which believes state bar data on law students’ race and ethnicity should be made public for use by researchers on all sides of the affirmative action debate.

Judge Karnow’s ruling (for a copy, click here) focused on the issue of whether the State Bar, which is exempt from the Public Records Act, is nonetheless subject to other access rights, including Prop 59, which added access rights to the state constitution; a so-called “common law” right of access; and newly adopted court rules applicable to the Judiciary (of which the State Bar is, technically, a part).

The Court ruled that none of these authorities could be interpreted to reach the State Bar or the data relating to affirmative action. The Court stressed that a pro-access interpretation likely would lead to disclosure of judges’ rough notes, grand-jury transcripts, and other documents that have long been held to be nonpublic.

One oddity of the Court’s reasoning is the unique status conferred on the State Bar. Under the Court’s interpretation, the Bar is the only government entity or agency in California that is not subject to freedom-of-information principles. Another oddity of the Court’s decision is that it construes Prop 59, enacted in 2004 with over 80 percent of the vote, as having virtually no meaning.

Mr. Sander said he believed Judge Karnow’s ruling was based on an excessively narrow reading of the law. “We are not at all disheartened by the lower-court decision,” he said, adding that he predicts the appellate court “will not give it great weight.”

“Judge Karnow’s conclusions will come as a surprise to the voters, who certainly thought, in passing Prop 59, that they were voting for more access and more information, not the status quo,” said FAC’s Mr. Scheer. “We’re very hopeful the Court of Appeals will see this case differently.”

Mr. Sander, on the basis of past research, has theorized that selective law schools’ affirmative action policies, through a “mismatch” between the benefited students and the schools’ academic program, set up many minority students to perform poorly, both in law school and in seeking admission to the Bar. Mr. Sander’s writings on this issue, in the Stanford Law Review and other prestigious journals, have been highly controversial.

The plaintiffs in the Bar case are represented by James Chadwick, Evgenia Fkiaras and Guylyn Cummins of Sheppard Mullin, and by Jane Yakowitz in Los Angeles. The State Bar’s lawyer is Michael Von Loewenfeldt of Kerr & Wagstaffe.

FAC—The First Amendment Coalition has filed a request under the Public Records Act for the speaking contract covering Sarah Palin’s planned appearance at a fundraising event for CSU Stanislaus in June. FAC has also requested the speaking contract for Bill Clinton’s appearance and speech at UC Berkeley in February.

Arrangements for Palin’s speech have come under scrutiny from students, public employee unions and State Senator Leland Yee. Unconfirmed reports put Palin’s fee for the June 25 appearance at $100,000. CSU officials, while not confirming the fee, contend that Palin will be paid from private funds raised by the CSU Stanislaus foundation, which they characterize as an independent and private entity not subject to the Public Records Act.

“This is about access to information, not politics,” said FAC executive director Peter Scheer. “That’s why we are simultaneously pursuing full disclosure about speeches to California university audiences given by both Palin and Clinton.”

“Palin has every right to speak at a public university campus in California, just like Clinton,” Scheer said. “The principle of access to information is nonpartisan and ideologically neutral”

The record requests for information about the Palin and Clinton speeches potentially raise several important legal issues.

One is the enforceability under access laws of a confidentiality clause in contracts entered into by public agencies. Another issue is the applicability of the Public Records Act to an ostensibly private entity, like the CSU Stanislaus foundation, that functions as an extension of a government entity.

"Google Bai Bai. " Tributes left at Google Beijing HQ in Jan. after Google said it would leave China over censorship issue.

Top US trade representative Ron Kirk says U.S. trade officials are in talks with Google and other Internet providers on FAC’s proposal to challenge China’s Internet censorship via the World Trade Organization (WTO). dh

U.S. weighing China Internet censorship case

(Reuters) – The United States is studying whether it can legally challenge Chinese Internet restrictions that hurt Google and other U.S. companies operating in China, but direct talks with Beijing might yield faster results, the top U.S. trade official said on Tuesday.

“We are still dialoguing not just with Google, but with other Internet providers, to make sure we fully understand what is happening in China,” U.S. Trade Representative Ron Kirk said in remarks at the National Press Club.

At the same time, U.S. trade officials are “trying to make our own determination whether we believe in fact this is not WTO compliant and if the best resolution is to go forward and file an appeal,” Kirk said.

A case challenging censorship practices that affect Google and other Internet providers who operate in China would be the first of its kind at the WTO.

A U.S. free speech group known as the First Amendment Coalition had been urging such a case for years before Google threatened to leave China in January due to hacking incidents and Web restrictions.

Kirk said trying to resolve the issue through bilateral forums such as the U.S.-China Joint Commission on Commerce and Trade (JCCT) was “much more preferable than the uncertain path of what can be a two-, three-, four-year legal battle in the WTO.”

U.S. companies cannot wait that long for a solution in the current economic environment, although the United States will not hesitate to go to the WTO when that is the only solution it has left, Kirk said.

Kirk noted Google and China have been in “very intense negotiations” since the company’s threat to leave.

On another matter, Kirk said the United States also hoped to persuade China to change “indigenous innovation” rules favoring companies that develop the intellectual property for new products in China.

The government procurement policy is intended to spur Chinese companies to be more innovative, but the United States argues it is essentially a trade barrier that does not reflect how products are developed in the global economy.

“This was one of the prime topics of concern” in preparatory talks with the Chinese for two upcoming high-level bilateral forums, the U.S.-China Strategic and Economic Dialogue this spring and the JCCT next fall, Kirk said.

“Our objective is just to get the government’s thumb off the scale,” Kirk said.

(Reporting by Doug Palmer; Editing by Xavier Briand)

Starting this month, FAC has retained veteran first amendment and access lawyer Judy Alexander as FAC’s Special Access Litigation Counsel. Judy will be representing FAC in access cases across the state as part of FAC’s  expanded litigation initiative.

Alexander, a former FAC Board member, has 25 years experience in first amendment and access matters, including litigation for news media and other clients to obtain access to public records, meetings, courtrooms and judicial records under the California Public Records Act, the Ralph M. Brown Act, the federal Freedom of Information Act and the First Amendment.

While litigation has always been a big part of FAC’s agenda, the addition of Alexander gives FAC the capacity to file more lawsuits challenging unlawful obstacles to access at the local level.

“We are delighted to have Judy working for us in this new litigation capacity,” said Peter Scheer, FAC’s executive director. “By filing selected lawsuits to overcome agencies’ denials of access, we hope to send a strong message to government bureaucracies,” Scheer continued. “The message is: “You cannot disregard the public’s and the media’s open-government rights with impunity.”

In addition to Alexander, FAC contracts with Holme Roberts & Owen to provide FAC’s Legal Hotline service. (Firm partner Roger Myers is FAC’s General Counsel). FAC also relies on multiple law firms to represent it pro bono in complex “test case” law suits. These include a pending case against the California State Bar (in which FAC is represented by Sheppard Mullin) and a legal initiative involving China and the WTO (in which FAC is represented by King & Spalding).

Alexander’s clients have included  Salon.com, San Jose Mercury News, Los Angeles Times, Center for Investigative Reporting, Sacramento Bee, Palo Alto Weekly, Copley Press, San Francisco Chronicle, Monterey County Herald, Santa Cruz Sentinel, Santa Rosa Press Democrat, NBC, Fox Television, KOVR-TV and Mother Jones magazine.

Congratulations to Attorney Rachel Matteo-Boehm of the law firm Holme Roberts & Owen, San Francisco for being named a Public Interest Lawyer of the Year by California Lawyer Magazine.  The magazine singled out work on behalf of FAC in two important government transparency cases: CFAC v. Santa Clara and and CFAC& Maplight.org v. Office of Legislative Counsel in Sacramento.

“Rachel’s dedication to government transparency extends beyond winning the decisions in these two important cases.” FAC Executive Director Peter Scheer said in response to California Lawyer’s honoring Matteo-Boehm work.  “Going forward, state agencies will understand that failure to comply with laws protecting the public’s right will not go undefended, and the cost of losing may be very high,”

California Lawyer 2010 Attorneys of the Year March 2010
by the editors of California Lawyer

The California Lawyer Attorneys of the Year Awards recognize lawyers throughout the state whose legal work made a profound impact in 2009….

Public Interest Attorney

Rachel E. Matteo-Boehm
Holme Roberts & Owen, San Francisco

Matteo-Boehm won two significant public records cases for the San Rafael–based California First Amendment Coalition to increase government transparency. In one, Matteo-Boehm led a Holme Roberts & Owen team in obtaining a detailed planning map from Santa Clara County, which the county had argued would pose a national security risk. The Sixth District Court of Appeal disagreed, ordering the release of the map and the largest-ever recovery award for a case enforcing the California Public Records Act (CPRA)-$500,000 in attorneys fees. Peter Scheer, executive director of the coalition, says, “This litigation raises the stakes considerably on state agencies that violate the act.” In the second CPRA case, Matteo-Boehm represented both the coalition and Berkeley–based MAPLight.org, a nonprofit research organization that reports on the connection between money and politics. She settled a lawsuit originally filed in 2008 against California’s Office of Legislative Counsel after gaining machine-readable databases of how state lawmakers vote. The June settlement agreement also stipulates a recovery of $65,000 toward attorneys fees.

copyright 2010 Californa Lawyer Magazine