Metropolitan News-Enterprise
March 10, 2010
By Sherri M. Okamoto

The Association of Deputy District Attorneys yesterday sent a missive to its members accusing Los Angeles District Attorney Steve Cooley of misrepresenting the ongoing dispute between his administration and the union in his office’s weekly online newsletter for employees.

Montana attorney Matthew G. Monforton, a former county prosecutor now serving as counsel for the ADDA in its federal lawsuit against the county, opined that Cooley’s statements on Monday were “libelous,” and demonstrated “remarkable disrespect by Cooley for both his prosecutors and the judicial system” coming on the heels of the preliminary injunction issued last week by U.S. District Court Judge Otis D. Wright II of the Central District of California.

Wright is presiding over the lawsuit filed by the ADDA and an unnamed member against Cooley, Chief Deputy District Attorney John Spillane, Bureau Director John Zajec and Assistant District Attorneys Curtis Hazell and Jacquelyn Lacey last October, claiming constitutional violations based on the defendants’ attempts to quash the fledging union.

The judge found that the ADDA “established a course of explicit retaliation” by Cooley and his administration that was “both striking and rampant” in his decision last Tuesday ordering them not to discipline or discriminate against prosecutors for belonging to the union.

He also ordered the county to show cause by Friday on why it should not be sanctioned for its “frivolous and improper filings” in the dispute.

Monforton opined Cooley’s message was “a continuation of his efforts to intimidate ADDA members,” and “grossly inaccurate.” He said the union was “examining our legal options” as to a response.

In his newsletter message, Cooley did not refer to the ADDA specifically, but referenced recent “negative articles quoting a few employees within the office” and asserted that these remarks came from “disgruntled individuals who have faced disciplinary matters or are using the legal process to assert their own personal or political agendas.”

He claimed that several of these persons “have been disciplined for misconduct or currently are facing disciplinary matters based on their personal actions in violation of both state and county rules and regulations concerning sexual harassment, hostile workplace, insubordination, threatening supervisors and other serious violations of Los Angeles County and office policies” and are now falsely claiming that that the actions the office took against them based on their own personal misconduct were because they were union supporters.

“When the evidence is presented in court and the facts involving these allegations are fully litigated, the truth will come out,” Cooley said.

Monforton took issue with Cooley’s characterization of the “few employees within the office” quoted by the media, insisting that “those folks have not faced disciplinary matters and are not using the political process for their own agendas,” emphasizing that “it’s the ADDA that’s the plaintiff, not any ADDA board member” in the federal lawsuit.

A spokesperson for Cooley’s office said yesterday that it was standing by Cooley’s comments and was prepared to prove them in court.

“Our prosecutors deserved a response to what so far has been a one-sided presentation,” the spokesperson said. “We will continue to exercise our free speech rights under the First Amendment as we deem necessary.”

Copyright 2010, Metropolitan News Company

March 9, 2010

The Federal Communications Commission (FCC) is gearing up to release its plan for national broadband access on March 17. The FCC is required under the American Recovery and Reinvestment Act to develop a plan to connect an estimated 93 million Americans and present it to Congress. Early releases of the plan indicate a broad vision, but problems concerning funding and net neutrality threaten its success.

On Feb. 18, the FCC gave the public an idea of what will be in the plan by releasing its national purposes update, which outlines what the commission will present to Congress. The plan embraces a broad vision of public connectivity that some public interest groups consider long overdue. The vision includes increased public education programs to bridge the digital divide, efforts to utilize broadband to improve energy and health care efficiency, and plans to provide first responders with radio interoperability.

Open government advocates have hailed the plan’s prerogative to increase civic participation in government policymaking. John Wonderlich of the Sunlight Foundationwrote that the FCC seems “committed to the sort of government policies that can help turn Internet access into a transformative tool for citizenship.” If, to paraphrase Thomas Jefferson, a democracy requires an informed citizenry, then broadband enables the masses to reach government information faster with fewer barriers to access. Further, national broadband access increases the capacity for tools that enable citizens to better interact with government information.

A major part of the plan seeks to use broadband to improve government efficiency, to enable citizen-centric online services, and to utilize existing government assets to improve broadband deployment. According to the Feb. 18 document, existing social media and cloud computing can be used to reduce costs, and services such as enabling citizens to access personal data held by government agencies can be better centralized. The blog on FCC’s Broadband.gov approaches the question of citizen engagement in five primary areas:

More than five years ago California voters overwhelmingly passed Proposition 59, which inserted the public’s right to access government records into the state Constitution.

Here is the substance of what more than 83 percent of voters in the 2004 general election approved:

The people have the right of access to information concerning the conduct of the people’s business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.

A statute, court rule, or other authority, including those in effect on the effective date of this subdivision, shall be broadly construed if it furthers the people’s right of access, and narrowly construed if it limits the right of access. A statute, court rule, or other authority adopted after the effective date of this subdivision that limits the right of access shall be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.

That language seems simple enough, especially the part that requires the rules — effectively the Public Records Act — be broadly construed if they further the right of access. The law already statutorily required a broad view of disclosure, but putting the same language in the Constitution added significant weight.

But then comes the legal mumbo jumbo — the words that seem to mute much of the above: Nothing about Prop. 59 shall nullify the right to privacy, or any statutory exemption to access to records.

In other words, Prop. 59 starts great and ends poorly. It took a lot of compromising language to get it on the ballot — language that effectively gives the government’s information gargoyles too much wiggle room to disregard the voters’ intent.

I cite Prop. 59 in every public records act request I file and in many, many arguments with bureaucrats as I try to wring public records from them.

It has, for years, been largely an effort in futility. Bureaucrats don’t think outside of the preverbal box, and judicial interpretations tend to come slower than BART expansion, or the Caldecott Tunnel’s fourth bore, or the new Bay Bridge. In other words, never as quickly as the public needs them.

The problem always seems to be that there is no clear judicial writing on Prop. 59’s meaning, something, when needed, that can be used as a figurative club in the fight for access.

But one has finally arrived. And bizarrely the person at the root of it is Antioch’s Philip Garrido, the convicted sex offender who is accused of keeping Jaycee Lee Dugard captive in his backyard for 18 years.

A pair of newspaper companies — McClatchy and Hearst — sued the California Department of Corrections and Rehabilitation for Garrido’s parole field file after the department refused to release it under the Public Records Act.

At the heart of the newspapers’ argument was a simple question: How did Garrido manage to avoid being found out for nearly two decades when parole agents were supposed to be checking up on him?

The state argued that regulations made the file exempt from disclosure. But that’s where Prop. 59 made what is arguably its biggest difference yet.

Sacramento County Superior Court Judge George P. Marlette ordered the records released, specifically citing Prop. 59 because the regulation was adopted in 2009 — well after voters amended the Constitution — and it didn’t contain any findings demonstrating why limits on disclosure were appropriate.

Marlette then went on to write in his decision that Prop. 59 also requires the principle of the broad view of disclosure.

The case was argued by attorney Karl Olson, who has also worked for the Bay Area News Group.

Given the likelihood that aggressive parole oversight of Garrido would have saved Dugard years of terror and imprisonment, the public interest in disclosure was “at its apex” in the case, Olson said. “It was obvious from the start that this was an egregious situation.”

There are no higher needs for access to government records when those records illuminate wrongdoing, incompetence or corruption.

Lo and behold, the records that Marlette ordered released because of his interpretation of the constitution showed parole agents had little interest in thoroughly checking on Garrido and didn’t even realize for a year after he moved from Nevada that he was a registered sex offender.

Down here in the trenches, Marlette’s reliance on Prop. 59 is a welcome weapon, although certainly not one worth a minute of Jaycee Dugard’s suffering. Perhaps the disclosures the judge ordered will prevent someone else from experiencing her horrors.

Thomas O’Toole at TechLaw points us to an anonymous speech decision issued last week by a federal court in Pennsylvania. In McVicker v. King, William McVicker subpoenaed Trib Total Media, publisher of the South Hills Record and YourSouthHills.com, for “information that would disclose the true identities” of the users of seven identified screen names. McVicker, the plaintiff in an employment discrimination case, sought the identities of the posters in order to impeach the testimony of city council members who made the decision to fire him. The United States District Court for the Western District of Pennsylvania denied McVicker’s motion to compel the newspaper to turn over identifying information.

The case presents a different posture from most cases dealing with the First Amendment right to anonymous speech because McVicker wanted to unmask the posters in order to make them witnesses in his case, not to make them defendants (e.g.s, the Liskula Cohen saga,Swartz v. Does, Solers, Inc. v. Doe, and Independent Newspapers, Inc. v. Brodie). Given this posture, the ordinary test for unmasking a commenter—whether the plaintiff has made “a substantial legal and factual showing that the claims have merit”—is not appropriate.

The McVicker court’s basic premise makes a lot of sense: “it is clear that a party seeking disclosure must clear a higher hurdle where the anonymous poster is a non-party.” McVicker, slip op. at 7. This makes sense because the speaker is an innocent third party, not alleged to have violated the plaintiff’s rights or engaged in unprotected speech in any way, so it seems fair to demand a stronger showing to overcome the speaker’s choice of anonymity.

But, despite this starting point, the court ultimately adopted a test that doesn’t look a whole lot more rigorous than the Doe-defendant standard. If anything, it looks weaker. The court asks:

whether (1) the subpoena seeking the information was issued in good faith and not for any improper purpose, (2) the information sought relates to a core claim or defense, (3) the identifying information is directly and materially relevant to that claim or defense, and (4) information sufficient to establish or to disprove that claim or defense is unavailable from any other source.

McVicker, slip op. at 10. Don’t get me wrong; I’m not necessarily faulting the court. The only real precedent out there adopts the same test. See Doe v. 2TheMart.com, 140 F.Supp.2d 1088 (W.D. Was. 2001), and Enterline v. Pocono Medical Ctr., 2008 WL 5192386 (M.D. Pa. Dec. 11, 2008). And the2TheMart.com court that crafted the test drew from reporters’ privilege cases, an entirely rational source of inspiration given some of the parallels.

But there’s no denying that this test looks rather permissive in comparison to the Doe v. Cahill or Dendrite International v. Doe standards we now commonly see adopted in Doe-defendant cases. Plus note how it only considers the plaintiff’s needs, not the defendant’s interest in remaining anonymous, which is more compelling in these Doe-witness cases. I don’t have an alternative test at my fingertips, but it seems like something worth pondering.

Maybe the answer is that the courts should just be stringent in policing the requirements of the test. That’s what the court did here, finding that the identities of the commenters and information in their possession were not necessary for McVicker to impeach the city council members effectively and that the same or similar information might be obtained through “normal, anticipated forms of discovery.”McVicker, slip op. at 11.

O’Toole’s post mentions some additional points about the case that are worth noting:

First, the court held that YourSouthHills.com had standing to assert the First Amendment rights of its commenters, following the Enterline case. This is not a huge surprise but it’s potentially significant from a procedural perspective as more and more news sites see it in their interest to protect the vitality of their online communities by asserting the rights of users.

Second, the court engaged in a bit of a lark, discussing how the YourSouthHills.com’s privacy policy might have impacted the commenters’ expectations of privacy, without really making clear how this affects the First Amendment analysis. O’Toole chides the court and another recent case for “plant[ing] the notion — as they did — that online intermediaries can expand or diminish via website terms the First Amendment right to engage in anonymous speech.” Well said, though to be fair the court appears to have addressed this issue more to dispense with one of McVicker’s arguments than to suggest it was independently relevant to the First Amendment analysis.

Copyright 2010 Citizen Media Law Project