SACRAMENTO — In a groundbreaking open records decision, a Sacramento County Superior Court judge tentatively ruled Thursday that the appointment books, meeting schedules, calendars, expenditure and reimbursement records for two suspended state senators are public record, upholding a lawsuit filed by the Bay Area News Group and Los Angeles Newspaper Group.
In his strongly-worded decision, Judge Michael Kenny ruled nearly all the records for suspended state Sen. Leland Yee, D-San Francisco, and state Sen. Ron Calderon, D-Montebello, requested by the newspaper groups should be handed over, despite the state Legislature arguing the records were exempt from disclosure under the Legislative Open Records Act.
Leland Yee exits the federal courthouse in San Francisco, Calif. on Tuesday, April 8, 2014. (LiPo Ching/Staff)
Yee has been charged with public corruption, racketeering and weapons trafficking, and Calderon has been indicted on 24 counts, including public corruption, mail fraud, wire fraud, bribery and money laundering.
“The allegation of such wrongdoings created by the federal investigation is of a significant interest to the public,” Kenny wrote. “To the extent these alleged activities occurred under the guise of the legislators’ official duties is even more concerning.”
The newspaper group’s attorney Duffy Carolan said the tentative ruling — which is expected to be made final after a hearing Friday — would finally clarify the 1991 court ruling Times Mirror Company v. Superior Court, where the court blocked a request for five years of the governor’s calendars. Although the court stressed that its ruling should not be read as a politicians’ cloak of secrecy, over the years the California Legislature has leaned on the Times Mirror decision to reject numerous news organization requests for information about lawmakers’ activities.
“The tentative ruling puts a dent in Times Mirror and hopefully, once final, will put to rest the notion that public officials’ calendars are off limits,” Carolan said. “The Court in its tentative ruling clearly grasps the significance of the public’s interest in access, in the face of such serious allegations of criminal wrongdoing by Senators Yee and Calderon.”
A BANG reporter and a LANG reporter filed a series of separate public record requests in April and June 2014 asking for records corresponding to dates and individuals noted in federal indictments of the two suspended politicians. The Senate Rules Committee denied all of them.
In the state Legislature’s arguments, it claimed the public interest was best served by not releasing the records. State lawyers also insisted that legislators’ correspondence and communications from private citizens carry a special “legislative privilege,” and that releasing calendars could jeopardize legislators’ security.
In his tentative ruling, Kenny disputed each of the Legislature’s arguments, saying they misconstrued the law or lacked factual support.
Legislative counsel Robert Pratt did not return a call for comment Thursday. Pratt has requested oral arguments at a Friday morning hearing, before Kenny makes his final ruling. If the judge finalizes his tentative ruling, the state Legislature could appeal.
“This is a long overdue, significant win for the people of California so they will better know what the officials they elected are doing,” said David J. Butler, editor of the BANG newspapers and editor-in-chief for Digital First Media, the parent company of both news groups. “Readers need to know that their financial support for our newspapers and websites makes it possible for us to wage this kind of legal fight.”
Peter Scheer, executive director of the First Amendment Coalition, said Kenny was a “voice of sanity” and his tentative ruling shaped a fair balance.
“About 30 years ago, the California Supreme Court in the Times Mirror decision restricted public access to so-called deliberative documents. Ever since then, the Supreme Court’s fairly narrow decision has been expanded in practice,” Scheer said. “This court wisely has decided to bring back the much more limited privilege the Supreme Court intended.”
Contact Matthias Gafni at 925-952-5026. Follow him at Twitter.com/mgafni.