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Media Lawsuits on Legislative Records Could Backfire

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Public Records Peril

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SACRAMENTO, CA - MARCH 10: A man looks at a Sacramento Bee newspaper rack March 10, 2006 in Sacramento, California. McClatchy Company, the publisher of the Sacramento Bee and other papers across the U.S. is said to lead bidding for Knight Ridder newspapers after bidding closed Tursday for the multi-billion dollar newspaper chain. Gannett Company, MediaNews Group Inc. and dozens of other papers have reportedly bid as well. (Photo by Justin Sullivan/Getty Images)

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How secretive is Sacramento? Consider this:

California governors control access to their own papers for 50 years or until death -- whichever turns out to be longer. 

U.S. presidents have such control for just 12 years after they depart office.

That's one reason why Californians should be rooting for the Sacramento Bee and the Los Angeles Times, which have filed a lawsuit demanding that the legislature turn over basic records over how it spends money.

But Californians should be nervous about the lawsuit too.

That's because in California litigation and disputes on public records access have often ended with diminished access to public records.

Perhaps most famously, in 1988 a Los Angeles Times lawsuit against then-Gov. George Deukmejian ended with a disastrous ruling that still frustrates reporters and citizens who want to hold government accountability.

That lawsuit followed lines similar to the one just filed.

Deukmejian refused to make public his daily calendar and other basic details about how his office spent money.

The Times went to court to demand the records. The courts issued a strong ruling for Deukmejian -- and thus established a very bad precedent on public records. It has only slightly been opened up by the passage of Prop 59, a constitutional amendment on public records, in 2004.

Californians also enjoy shockiingly poor access to the records of previous governors -- in part because of a 1980s fight between the legislature, Secretary of State March Fong Eu, and former Gov. Jerry Brown.

It was as a result of that battle that governors gained control over access to their own papers for 50 years or until death -- whichever turns out to be longer. 

That's more than four times longer than U.S. presidents have such control after leaving office.

To be sure, the case of legislative records is a different one.

The legislature has exempted itself from public records laws for decades -- and routinely refuses to hand over documents that would be public in most states.

So the newspapers may feel they have little to lose by taking on the legislature in court.

But there's also a decent chance that the courts -- and California judges have generally been less than friendly to the idea of open, accountable government -- could issue a ruling that sides totally with the legislature and limits existing public records laws and constitutional provisions.

What would be a better approach?

Public records is one area where a ballot initiative makes sense.

Given their distrust of government, Californians might well be willing to entertain a constitutional amendment that makes almost every government document public.

An initiative is not an easy course, but it may carry less risk than a run to the courts.

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