Proposition 59

Background
On the November 2, 2004 Election, voters approved by an overwhelming majority (83.3%) an amendment to Article 1, Sec. 3 of the California Constitution, otherwise known as Proposition 59 or the Sunshine Amendment. This proposition was passed unanimously both by the Senate and the Assembly, reflecting the strong sentiment that the public have a right to a transparent and open government1. Prop. 59modifies the Constitution to:

• “Provide right of public access to meetings of government bodies and writings of government officials.
• Provide that statutes and rules furthering public access shall be broadly construed, or narrowly construed if limiting access.
• Require future statutes and rules limiting access to contain findings justifying necessity of those limitations.
• Preserve constitutional rights including rights of privacy, due process,equal protection; expressly preserves existing constitutional and statutory limitations restricting access to certain meetings and records of government bodies and officials, including law enforcement and prosecution records.”2

This Proposition raises to the rank of constitutional civil right the access to government documents and meetings. It also strengthens the Brown Act (LINK) and the California Public Records Act (CPRA) (LINK), which already grant access to public meetings and documents of government bodies, by requiring the government to broadly interpret public’s rights to access and to narrowly construct exceptions. The government must justify any restrictions to grant access; it bears the burden of proof when enacting newlaws, ruling cases or exercising authority that would curtail this civil right to transparency and openness in government. This means that detailed arguments about a denial will have to be provided and can now be challenged in court instead of having thegovernment use the argument that it is in the public interest to not provide disclosure without having to prove its case. For these reasons, it is considered that Prop. 59 has eliminated the “deliberative process privilege” that was previouslyused by local governments to deny access to public documents and information3. However, to date there has been no Court case that has ruled in this area that would confirm or refute this interpretation.

How to Use Prop. 59
Prop. 59 shouldbe used in conjunction with the California Public Records Act to request access to information because it strengthens the petition and because it reminds public agencies of the fact that a civil right is now at stake when they are processing a request for information from a member of the public. For an example of how to use this Sunshine Amendment, please click on the Sample CPRA and Prop. 59 disclosure letter (LINK).
Some of the materials that might be requested under this Proposition are identicalto those that can be requested under the CPRA:

• Appointment calendars
• Telephone records
• Emails
• Working documents such as plans, maps, notes, meeting minutes
• Salaries
• Campaign filing forms
• Assessor and property tax records
• Memos

Disclosure information can be requested from public elected officials and from staff. Exempted materials from disclosure requirements are documents containing private information about members of the public, or documents containing legal counsel items or personnel information such as official performance or professional qualifications of a peace officer.

Full Text of Prop. 59
CALIFORNIA CONSTITUTION
ARTICLE 1 DECLARATION OF RIGHTS
SEC. 3. (a) The people have the right to instruct their representatives, petition government for redress of grievances, and assemble freely to consult for the common good.
(b) (1) The people have the rightof access to information concerning the conduct of the people's business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.

(2) 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 adoptedafter 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.

(3) Nothing in this subdivision supersedes or modifies the right of privacy guaranteed by Section 1 or affects the construction of any statute, court rule, or other authority to the extent that it protects that right to privacy, including any statutory procedures governing discovery or disclosure of information concerning the official performance or professional qualifications of a peace officer.

(4) Nothing in this subdivision supersedes or modifies any provision of this Constitution, including the guarantees that a person may not be deprived of life, liberty, or property without due process of law, or denied equal protection of the laws, as provided in Section 7.

(5) This 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.

(6) Nothing in this subdivision repeals, nullifies, supersedes, or modifies protections for the confidentiality of proceedings and records of the Legislature, the Members of the Legislature, and its employees, committees, and caucuses provided by Section 7 of Article IV, state law, or legislative rules adopted in furtherance of those provisions; nor does it affect the scope of permitted discovery in judicial or administrative proceedings regarding deliberations of the Legislature, the Members of the Legislature, and its employees, committees, and caucuses


1 The final votes cast by the California Legislature on Senate Constitutional Amendment 1 (Proposition 59) were: Senate 34 Ayes-0 Noes, 6/30/03; Assembly 78 Ayes - 0 Noes, 1/11/04. The vote tally corresponds to the California Legislative Session 2003-2004.
2 Attorney General, Proposition 59 Public Records, Open Meetings. Legislative Constitutional Amendment, California, 2004, http://www.ss.ca.gov/elections/bp_nov04/prop_59_entire.pdf.
3 The Times Mirror Co. v. Superior Court, 53 Cal. 3d 1325, 1338, 813 P.2d 240, 283 Cal. Rptr. 893 (1991) was thought to establish the “deliberative process privilege” doctrine that enabled governments to refuse access to information by summoning Cal. Gov. Code §6255 an arguing that the “public’s interest” in non-disclosure outweighs the “public’s interest” in disclosure. Some experts, like Peter Scheer, executive director of the California First Amendment Coalition, have contended that “the passage of Prop. 59, a constitutional amendment strengthening public access to government records, threw out the idea of a deliberative process privilege, which has been used since 1991 after the California Supreme Court ruled that the calendar of former Gov. George Duekmejian was not subject to the California Public Records Act because the information was found to be part of government’s "deliberative process."” Governor releases aides’ calendars under Prop. 59,Santa Barbara News Press, 2/4/06