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Wednesday, April 24, 2013

Publisher’s Notebook

• Government Transparency •

BY ANNE SOBLE

The City of Malibu has now joined the list of a number of other local governments in the state of California that are grappling with some of the thorny legal issues related to putting the requirements of the open government legislation generally referred to as the Brown Act and the Public Records Act in the context of rapidly evolving communication technology and an ongoing philosophical debate over the extent of the public’s right to know what goes into the making of government policy.
That the members of any particular public at a specific point in time have not always been as diligent in asserting the rights created by this legislation as they should be, and have allowed the press—disregarding that the ownership of media may have its own special interests and agenda—to serve as their surrogate, does not diminish the extent of these rights when they are challenged.
If the operating premise of the democratic process is that knowledge and access are key determinants of political power, the resolution of the differences of opinion on Brown and Public Records legislation issues is critical to the underpinnings of an equitable political system.
One doesn’t need Machiavellian insight to intuit that those who wield political power prefer to do so without interference and denying access to information and an opportunity to weigh in at every stage of the policymaking process creates a major impediment to opposition.
Discussions of ways that a majority of a legislative body can explore or initiate action on business under its jurisdiction run the gamut from abstract philosophy to mathematical modeling with terms such as “hub-and-spoke” and “daisy chain” being used to describe actions by legislators that purposely, or inadvertently, violate the requirement that these actions be open to the public.
If one person acts as the center and communicates with other members of the legislative body by telephone or email, does a hub-and-spoke serial meeting result? Does daisy-chain communication become a serial meeting if one council member contacts another to discuss city business, and the second council member discusses it with a third? Is this beginning to sound like some of the email debate in the City of Malibu?
In addition to Brown Act violation allegations, the MTC has challenged the City of Malibu’s email deletion/destruction policy, which appears to allow most emails to be deleted after they have been read. Does this violate the California Public Records Act, which requires that all records of local governments, including emails, be kept for two years because “access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state?”
Citizens now have the electronic tools to not only monitor all government meetings but also to comb through documentation in ways that would have been impossible only a few years ago. With this technological revolution comes an unparalleled opportunity for public oversight of government. Although it may take the courts a while to catch up with what is happening on the government transparency battle lines, the current Malibu skirmish may have the potential to turn the tide.

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