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The Thing Is, It's Our Right to Know
By John Millrany - May 11, 2001

The California Newspaper Publishers Assn. is hoping that a bill making its way through the Legislature will give the public a leg up on its "right to know" privileges. The CNPA fondly points out that just that type of privilege ultimately led to the undoing of Chuck Quackenbush, the embattled state Insurance Commissioner who was forced to resign last year.

Taking up the CNPA-inspired legislation is sponsor Kevin Shelley, the Democrat Assembly Majority Leader. AB 914 would add Government Code Section 6256, to read:

"Notwithstanding Section 6254 (the enumerated exemptions) or 6255 (the public interest balancing test), an agency shall release, or a court pursuant to Section 6259 shall order the release of, any record not expressly prohibited from disclosure by a specific provision of law if the agency or court finds that withholding the record would seriously harm the public interest, the public safety, or the constitutional rights of any person."

According to CNPA, the bill is intended to address the situation where, because of extraordinary facts, a normally exempt public record should be disclosed. For example, when serious allegations of police misconduct arose at the Rampart station of the LAPD, the public interest in the normally exempt investigatory records of the law enforcement agency became quite strong. Had the provisions of AB 914 been in existence as this story broke, the public, the press, public officials and those wrongly accused or convicted of crime might have asked a court to allow immediate access to closed investigatory files.

The bill would have worked equally well to uncover for the public the so-called propriety records former Insurance Commissioner Quackenbush refused to disclose to either the public or the Legislature in the face of serious allegations of corruption. In both cases, either the agency or a court might have properly found that continued "withholding (of) the record would seriously harm the public interest, the public safety, or the constitutional rights of any person."

While certain records (i.e., tax, disciplinary or criminal history, etc.) are prohibited from disclosure, the vast majority of public records exempt from disclosure may be disclosed by officials in their discretion. No rules exist to instruct officials on whether or when they should use their discretion to allow public access to normally exempt public records when it is appropriate to do so. Moreover, nothing in current law allows a court to order the disclosure of normally exempt records even where the facts overwhelmingly support that result.

Referring to its staff’s estimation--that passage of this bill is an uphill battle would be a gross understatement--the CNPA said, "Arrayed against AB 914 are virtually every state and local agency and many business interests, including the insurance industry and probably even the State Chamber of Commerce. These businesses feel threatened by disclosure of records that might indicate a too-cozy relationship between the regulator and regulated (see Quackenbush scandal)."

 
 

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