Davis Justifies Power Pact Secrecy With Obscure Code Public agencies using it more and more Patrick Hoge, Chronicle Staff Writer

Saturday, March 10, 2001 ©2001 San Francisco Chronicle

URL: http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2001/03/10/MN178051.DTL

Which lobbyist is having lunch with the city manager? Who is a City Council member calling on a government telephone? Who is asking for appointment to a vacant elected position?

These might seem like questions of public interest. Such matters, however, are increasingly being kept secret using the same legal language that Gov. Gray Davis has cited in withholding details about billions of dollars worth of electricity contracts he signed Monday.

Davis' action is a far-reaching and apparently novel attempt to use Section 6255 of the Government Code, a broad provision regarding protection of the "public interest," said a number of public and private lawyers who focus on disclosure laws. And it is the first time those experts have heard of its use to block public scrutiny of the terms of a contract that has already been signed.

"I am not aware personally" of similar cases, said Supervising Deputy Attorney General Andrea Hoch, who is in the attorney general's government law section.

But use of the code is becoming more popular among public agencies at all levels in many other arenas, said Terry Francke, general counsel with the California First Amendment Coalition.

"It is cropping up at an increasing pace," he said. "I certainly see it used more and more in local government."

Davis spokesman Steve Maviglio said that releasing the electricity contract information before six months have passed would simply harm the public by putting the state "at a competitive disadvantage in negotiating other contracts."

"We use it occasionally, not with any great degree of frequency," Maviglio said of Section 6255. "We only use it when we need to."

Francke said Davis probably has little need for worry from the courts if he truly plans to withhold details for just six months. The situation is unusual because the state is purchasing power directly and is negotiating multiple contracts at the same time, he said.

"I can imagine judges being quite deferential to the governor," he said.

San Francisco attorney Neil Shapiro agreed, saying that a judge would probably be wary of making a decision that could cost taxpayers huge amounts of money. The important question now is how long contract details should remain secret, said Shapiro, who has represented The Chronicle in public records cases.

"I'd push for shorter," he said.

Historically, courts wouldn't accept the argument of a government agency that "not disclosing the record clearly outweighs the public interest served by disclosure of the record," Francke said. It has typically been included as a "tack-on" defense, in case other code sections don't apply, he said.

Then in 1991, the California Supreme Court rejected the Los Angeles Times' request for access under the California Public Records Act to then-Gov. George Deukmejian's appointment book.

In doing so, the court introduced a new concept to California law, concluding the governor's schedules are part of the so-called deliberative- process privilege, which the court said is exempt under the public records law.

The privilege was already enshrined in federal law, and has since been upheld at least three times on appeal in state courts, Francke said.

One appellate case focused on the city of Burbank's refusal to release City Council members' telephone records. Two others involved attempts to force the governor to disclose names of people who applied for appointments to fill vacant positions on local boards of supervisors.

Since 1991, governments have been expanding Section 6255's applications as they have found it successful in court to defend public records requests, Francke said. He cited a current case involving the city of Claremont in Los Angeles County, in which the city attorney said the city manager does not have to reveal the identity of his lunch partners, even when lunch was on the taxpayers' dime.

James Chadwick, a partner with the Palo Alto firm of Gray, Cary, Ware & Freidenrich, who specializes in First Amendment law, unsuccessfully argued that then-Gov. Pete Wilson should have to reveal the identities of people attempting to get a seat on the Plumas County Board of Supervisors.

"It's outrageous to me that the public doesn't have the right to know the qualifications of people seeking appointment to an elective office," said Chadwick. The other appellate case involved an appointment to the Orange County Board of Supervisors.

The deliberative-process privilege is not the only argument linked with Section 6255 that has been successful. Others have argued that the public good is furthered by guarding the privacy of employees and members of the public.

JoAnne Speers, general counsel for the League of California Cities, said cities worry about companies attempting to gain access to government databases for marketing purposes.

In 1999, San Francisco was upheld on appeal after it rejected an attempt by the San Jose Mercury News to get the addresses and telephone numbers of people who had complained about airport noise. The city agreed to release only names.

Privacy concerns have not been upheld as valid reasons for withholding numerous other types of information, including names of police officers who fatally shot people, holders of concealed weapons permits, and the names of people who received citations for using too much water.

E-mail Patrick Hoge at phoge@sfchronicle.com.

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-- Martin Thompson (mthom1927@aol.com), March 10, 2001