Today, Sager and Wilkinson discuss granting access to all public employees' records. Previously, they debated public access to police records, proposed state legislation that would open police misconduct hearings, and several cities' decision to close such hearings. Tomorrow, they will determine whether officers deserve more privacy than average citizens.
Open up employment recordsBy Kelli L. Sager
California's Public Records Act expressly recognizes that information "concerning the conduct of the people's business" is a "fundamental and necessary right of every person in this state." The state's citizens reinforced this important principle in 2004, when more than 80% of voters approved a measure that elevated the public's right of access to information about government operations to California's Constitution.
The rationale behind both of these key legal provisions is more than two centuries old: the recognition that, in a democratic society, individual citizens must be fully informed about the conduct of government affairs. As the U.S. Supreme Court has noted, an "informed public is the most potent of all restraints upon misgovernment."
Yet the public and the media constantly are being forced to wage legal battles to get even basic information about public employees. Currently, the California Supreme Court is considering two such cases: In one, police officers and other public employees are fighting to keep secret the identity of Oakland public servants who earn more than $100,000 a year; in the other, police unions have joined with a state agency to fight the disclosure of their names, employers and dates of employment.
It is difficult to imagine a rationale for secrecy in either case. In Oakland and elsewhere throughout California, for example, salary information historically has been publicly available -- a tradition that was not surprising, since former Atty. Gen. Edmund G. "Pat" Brown Sr. opined more than 50 years ago, "It is a fact that the name of every public officer and employee, as well as the amount of his salary, is a matter of public record." Taxpayers have the right to know how their dollars are being spent, to guard not only against mismanagement, but also against nepotism, favoritism, and corruption.
It is equally difficult to see any justification for establishing what would amount to a secret police force operating within this state. Without basic information about the identities and employment of peace officers, it is difficult -- if not impossible -- to ascertain patterns of attrition and retention among different police departments in California. It also is virtually impossible to determine whether "problem" officers are shuttled from one city to another. But perhaps that is the reason why the state's police unions and state agencies have so vigorously challenged the release of innocuous employment information.
Faced with a similar legal challenge, Washington state's Court of Appeal had no difficulty deciding that the names of its police officers in Seattle were a matter of public record. Such information, the Washington court noted, is hardly "private," since it is freely shared by officers on the street, in arrest reports and in courtrooms throughout the state. Hopefully, California's highest court will reach the same conclusion, and will strongly reaffirm the public's "fundamental and necessary" right to information about the conduct of the people's business in this state.
Kelli L. Sager is a partner at Davis Wright Tremaine LLP in Los Angeles. She has represented The Times in efforts to gain access to information about California's peace officers.
Public employees deserve privacy tooBy Alison Berry Wilkinson
It's all about balance. Noticeably absent from your piece, Kelli, is any reference whatsoever to the fact that the first article of the California Constitution explicitly guarantees to each citizen of this state -- even public employees -- the "inalienable" right to privacy.
An inherent tension exists in the California Constitution between the public's right to know and the individual's right to privacy. Even the Public Records Act recognizes that the public's right of access to information is not absolute. In enacting the CPRA, the Legislature expressly declared that it was "mindful of the right of individuals to privacy" and exempted from disclosure numerous categories of documents.
Salary information for police is neither secret nor inaccessible. Indeed, the collective bargaining agreements that set the terms, benefits and conditions of public employment are available to the public on just about every local agency's website. Moreover, even the amounts actually paid to individual employees are accessible. However, the law requires that before a specific name is linked to a specific amount of money paid, a balancing of interests needs to be conducted.
The information sought to be publicly disclosed is not, as you describe, "innocuous." Law enforcement is a dangerous job. When it enacted Penal Code Section 832.7, the California Legislature specifically recognized that certain information about peace officers is kept confidential for an obvious reason: A peace officer's personal safety and that of his or her family is endangered by unrestricted disclosure. Thus, information such as the home address of a peace officer is considered confidential and not subject to disclosure.
One of the ironies of newspapers' position is that they want the name and salary information of police officers in order to expose nepotism. But Government Code section 6254(c) and (k) both incorporate the protections of Penal Code section 832.8, which excludes from public disclosure the identities of a police officer's family members. So, even if a newspaper wanted to expose nepotism, it could not.
All police organizations are asking for is that newspapers be required to demonstrate something more than a simple "I want it" to access information that may jeopardize the safety of peace officers and their families. Automatic, indiscriminate personal information disclosures put law enforcement officers and their families at risk. All police organizations are asking is a reasonable balance between the public's right to know and the individual's right to privacy. This can be effectively accomplished by imposing a standard that requires that an individualized case-by-case examination as to whether there is a risk before any specific disclosure is made. With such a process, the state could strike the requisite balance between the two equally important and yet competing Constitutional provisions.