Friday, February 6, 2009

What Does Proposition 59 Mean?

Proposition 59 created a "right of access to information" in the Constitution. One of its provisions, Article I, Section 3(b)(2), provides that 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." However, another part of the same measure, codified at Article I, Section 3(b)(5), provides that: "[t]his subdivision does not repeal or nullify, expressly or by implication, any constitutional or statutory exception to the right of access to public records or meetings of public bodies that is in effect on the effective date of this subdivision, including, but not limited to, any statute protecting the confidentiality of law enforcement and prosecution records." So what does it all mean? One portion of the measure provides that existing exemptions to the Public Records Act shall be narrowly construed, while another provides that the measure does not repeal or nullify any existing Public Records Act exemption. The Janus-faced quality of the measure has just been amplified in two recent Court of Appeal decisions, decided one day apart. The first, Dixon v. Superior Court (here). cites Section 3(b)(5) to justify applying a Public Records Act exemption, while the second, County of Santa Clara v. Superior Court (here), cites Section 3(b)(2) in favor of disclosure. Neither really comes to grips with the measure as a whole or explains how the two sections interact.

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