Mr. CHILES. Mr. President, the bill can be easily summarized. Section 1 requires all meetings of Government agencies at which official action is taken, considered, or discussed to be open to the public, with certain exceptions. Exceptions would be in matters relating to national defense and security or any matters required by statute to be kept confidential; meetings related to an agency's internal management; and disciplinary proceedings which could adversely affect the reputation of an individual. This section would also require agencies to adopt procedures for providing the public with advance notice of meetings.

Section 2 requires that meetings of congressional committees shall be open to the public, with exceptions similar to those cited for meetings of Government agencies.

Section 3 requires that a transcript, available to the public, be made of meetings of Government agencies and congressional committees. Section 4 provides for court enforcement of the open meeting requirement for Government agencies upon suit brought "by any person.'

Section 5 defines agencies referred to in the act as all multimember Federal authorities other than the courts, Congress, or military authorities. This section also broadly defines the "person" who may seek court enforcement of the act's provisions.

Section 6 provides that the act shall be effective 90 days after

enactment.

I would like to express my indebtedness to Prof. Richard B. Stewart of the Harvard University Law School for his expert counsel in the drafting of this measure.

There is good practical precedent among the States for a Federal open meeting law. I cite the examples of two States where sunshine is particularly abundant and where sunshine laws have been conducive to good government. California was one of the first States to enact an open hearing law; Florida passed a comprehensive "Governmentin-the-Sunshine" Act in 1967, and since I was a member of the Florida Legislature at that time, I am especially familiar with it.

As early as 1953, the California Assembly enacted the Brown Act, which makes provision for open public meetings for all local government agencies-but not State government. The California attorney general also ruled that the act applies to legislative bodies of chartered cities. The case that brought forth that ruling was an instructive one, for it held invalid a San Diego Council resolution restricting attendance at "council conferences" by requiring citizens to register for the meetings and to agree to silence. The basis for that ruling is an eloquent statement of the case for sunshine laws:

The right and ability of the people to have free and open access to all meetings of local legislative bodies is vital to the preservation of an informed electorate and constitutes an elemental safeguard to democratic government. The existence of devices, loopholes or subterfuges which tend to "cabin, crib or confine" the public from free access to the meetings and deliberations of their local governmental agencies is contrary to the public policy of this State.

The Brown Act states that all public entities in the State "exist to aid in the conduct of the people's business." It declares all meetings of a local legislative body or agency to be "open and public," with no conditions on attendance by the public. The time and place of regular

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information were passed, both actively supported by the CNPA and the League of California Cities. The first was Assembly Bill 339 which was signed into law as Government Code sections 54950-958 and makes "open public meeting" provisions for all local governmental agencies." The act does not apply to state agencies but, on the basis of a recent opinion of the Attorney General, now appears to apply to legislative bodies of chartered cities." City attorneys of charter cities had previously held both ways on the subject."

Governor Warren objected to the bill's failure to cover state agencies, comment

"There isn't any reason at all why we should have a law for local government and then refuse to have the same thing for State government. I personally believe it would be a good thing to have such a law for all branches of government, including the legislature. Some of the worst things that have happened in government stemmed from secrecy. It should be avoided."

43

The second proposal was Assembly Bill 1160, introduced by Frank Luckel of San Diego as a result of refusal by county health authorities to allow the San Diego Union and Evening Tribune access to their records. The bill proposed to add a section to the Government Code, reflecting the "intent" of the legislature." and supporters of the bill urged passage because "appellate courts are known to pay close attention to 'intent' whenever a law is challenged." " The bill received a pocket veto by Governor Warren, who referred to it as a "cutie" and as merely a statement of policy that did not change existing law. The governor said he vetoed the bill because it was a "pious evasion of responsibility on the part of the Legislature. . . . I believe there is a greater likelihood the Legislature will pass effective legislation if nothing is on the books than if there are a few pious phrases that are not implemented by positive law." 44

45

On June 2, 1953, Senator George Miller introduced a resolution to create a special Senate investigating committee on Governmental Organizations. He later announced the group would conduct a study of the availability to the public of official records. Newspaper reporters, editors, and publishers were asked to help the Senate committee by reporting specific instances of refusals or difficulties experienced in attempting to gain access to official records of state, county, or city governments."

38 Assembly Bill 339 was introduced by Ralph M. Brown, chairman of the Assembly Interim Committee on Judiciary. The bill resulted from a ten-part series on "Your Secret Government" by Michael Harris that appeared daily in the San Francisco Chronicle from May 25 to June 4, 1952. For a report of hearings on Assembly Bill 339 in September 1952, see Progress Report to the Legislature by Assembly Interim Committee on Judiciary, Part I, The Suppression of Public Information by Government Agencies, Commissions, Boards. Councils and Officials. Part I at 13-63 (1953). For an account of the origins of Assembly Bill 339 and its passage through the legislature see Hafner, California and "The Right to Know" (unpublished master's thesis in University of California Library, Berkeley, 1955).

27 Ops. Cal. Att'y Gen. 123 (No. 56/40, Mimeographed. March 2, 1956), holding invalid a San Diego city council resolution restricting attendance at "council conferences" by requiring citizens to register and further to agree to remain silent unless requested so to speak. "The right and ability of the people to have free and open access to all meetings of local legislative bodies is vital to the preservation of an informed electorate and constitutes an elemental safeguard to democratic government. The existence of devices, loopholes or subterfuges which tend to 'cabin, crib or confine' the public from free access to the meetings and deliberations of their local governmental agencies is contrary to the public policy of this State." Id. at 131.

40 See the correspondence in the office of League of California Cities, Berkeley.

41 San Francisco Chronicle. July 26, 1953, p. 14. A bill that would have applied similar "open meeting" requirements to all state agencies was introduced in the 1955 legislature by Sheridan N. Hegland. The bill, Assembly Bill 18, was never reported out of the Committee on Governmental Efficiency and Economy.

42 Assembly Bill 1160 would have added the following sections to the Government Code: "Except as otherwise provided by law. all official records, reports, or other official documents, or any state agency, or any county, city and county, city or of any district, or any public agency of any kind, or of any of the officers and employees thereof, shall be available to the public for inspection during business hours, and any persons shall be permitted to inspect such official records, reports, or other official documents." 43 The California Publisher, Aug. 1953. p. 3.

44 San Francisco Chronicle. July 26. 1953, p. 14.

45 Sen. Res. No. 157 in 3 Journal of the Senate 3484 (1953 reg. sess.). authorizing and directing the committee "to ascertain, study and analyze all facts relating to any department or agency of state or local government in California, including (but not limited to) its organization, functions and personnel and administration; the evaluation of all phases of its program and the relations of such agencies or departments to newspapers, radio and television in carrying out such program . . .

46 The California Publisher, Dec. 1953, p. 12.

In January, 1954, the committee posed four questions to some 66 state agencies and boards:

47

"1. What records in the keeping of your office are by law confidential? Please furnish citations for such decisions.

"2. What other records in your office do you consider as not being open to inspection?

"3. What records in your office are not now confidential which you believe should be made confidential? State reasons.

"4. Are any records now confidential by law which you believe should be open to the public?"

The responses, along with opinions of the attorney general and the legislative counsel on the subject, were published by the committee in May, 1965. The 148page report contains the full replies received from each agency, together with such exhibits as were presented. The committee held hearings in November 1955, and Senator Miller has said other hearings would be conducted during 1956, with the expectation that legislation would be recommended to the 1957 session."

48

51

Several sections of the codes of California relate to public records and their inspection. Two sections define public writings.50 Others provide that citizens are entitled to inspection and, upon demand, to certified copies of public writings." These definitions of "public writings" extend well beyond the general common law definitions. The "stark brevity" of the California definitions has left wide scope for judicial interpretations," but actually there have been few cases bearing on these statutes. For the most part those that have been decided have ruled merely whether a particular record falls within the provisions of the statutes and do not lay down any broad general rules that can be followed. Generally there is no single test that may be applied to determine what constitutes a public record. The only language of general applicability in the various California cases is found in Coldwell v. Board of Public Works to the effect that "the only means of deciding whether or not a document is a public writing is by determining whether or not it falls within the statutory definition."

On the suface California's statutes defining public records and the right of inspection appear to be "liberal." The general statutory provisions seem clearly

Calif. Senate Special Committee on Governmental Administration, Public Records Survey (Partial Report, May 1955). This report will hereinafter be cited as Public Records Survey.

49 Ibid.

"Letter from Senator George Miller, to writer, September 30, 1955: "It is our hope we will be able to develop some better law on the subject to remove the areas of doubt which now exist."

50 "Public writings" are defined in Cal. Code Civ. Proc. & 1888 as follows: "Public writings are: 1. The written acts or records of the acts of the sovereign authority, of official bodies and tribunals, and of public officers, legislative, judicial, and executive, whether of this State, of the United States, of a sister State, or of a foreign country; 2. Public records, kept in this State, of private writings.'

Cal. Code Civ. Proc. § 1894 provides: "Public writings are divided into four classes: 1. Laws: 2. Judicial records; 3. Other official documents; 4. Public records, kept in this State. of private writings."

51 Cal. Govt. Code § 1227 provides: "The public records and other matters in the office of any officer, except as otherwise provided, are at all times during office hours open to inspection of any citizen of the State."

And Cal. Code Civ. Proc. § 1892 provides: "Every citizen has a right to inspect and take a copy of any public writing of this State, except as otherwise expressly provided by statute."

Cal. Code Civ. Proc. § 1893 states: "Every public officer having the custody of a public writing, which a citizen has a right to inspect, is bound to give him, on demand, a certified copy of it, on payment of the legal fees therefor, and such copy is admissible as evidence in like cases and with like effect as the original writing."

The following is a frequently cited common law definition: "A public record is a written memorial made by a public officer. . . . [It] is one required by law to be kept, or necessary to be kept in the discharge of a duty imposed by law, or directed by law to serve as a memorial and evidence of something written, said or done." Amos v. Gunn, 84 Fla. 285, 343, 94 So. 615, 634 (1922).

58 Cross. in Bulletin of the ASNE, June 1, 1954, p. 7.

The mere fact that a writing is in the custody of a public agency does not make it a public record. Whelan v. Superior Court, 114 Cal. 548, 46 Pac. 468 (1896); Coldwell v. Board of Public Works, 187 Cal. 510, 202 Pac. 879 (1921). A test frequently used by the courts is that "in order that an entry or record of the official acts of a public officer shall be a public record it is not necessary that such record be expressly required by law to be kept, but it is sufficient if it be necessary or convenient to the discharge of his official duty." People v. Tomalty, 14 Cal. App. 224, 231, 111 Pac. 513, 515 (1910). See also People v. Pearson, 111 Cal. App. 2d 9, 244 P. 2d 35 (1952).

5187 Cal. 510, 202 Pac. 879 (1921).

5a Id. at 518, 202 Pac. at 882.

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to indicate the legislature intended that only those matters specifically made confidential by law should be excepted from public view. In passing Assembly Bill 339 in 1953 the legislature declared the following as a matter of policy: "The people of this State do not yield their sovereignty to the agencies which serve them. The people, in their delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created."

And in Assembly Bill 1160, the legislature declared as its "intent" that "all official records, reports, or other official documents" should be available to the public for inspection, "except as otherwise provided by law."5

60

61

The phrase "and other matters" in Political Code section 122759 would seem to imply that the legislature intended to extend the right of inspection to more than just "public records." And the courts have been "liberal" in their interpretation of the phrase "other matters." In Musket V. Department of Public Service, it was held that the papers of a municipal utility were not "strictly speaking public records,' but access was granted on the ground they were "other matters" of a general public concern. In Coldwell v. Board of Public Works the court held that a private person had the right to inspect the preliminary estimates and plans prepared in the office of the city engineer of the City and County of San Francisco, in connection with the Hetch-Hetchy project, even though the documents were memoranda prepared for use in the office and had not been formally adopted as the official acts of the engineer. Inspection was granted on the basis they were "other matters" in which the "whole public" had an interest. In both cases the petitioner gained access to documents sought, and both reflect a liberal point of view in respect to the public's right of inspection."

In reaching its conclusion in Mushet v. Department of Public Service that the documents "strictly speaking" were not public writings, the court adopted a policy of consolidating the statutes, resulting in a restrictive definition of "public writings." According to section 1888 of the Code of Civil Procedure public writings are the "written acts or records of the acts" of public bodies or officials. Section 1894 then divides public writings into four classes: "law, judicial records, other official documents, and public records, kept in this state, of private writings." Consolidating the language of the two statutes, the court held in the Mushet case that papers in question must not only be "official documents" but must also be the "written acts or records of the acts" of public officials or bodies. 63 In other words, it is not enough that they be written acts or records of acts or official documents-they must be both.

This "doctrine of exclusion" has been consistently applied by the attorney general in opinions rendered for various state agencies." And the Miller committee survey shows these opinions have been widely relied on by many agencies other than those for whom they were prepared. It is not difficult to see how this

56 Consider, e.g., instructions by the governor in a letter by his departmental secretary to all department heads: "[T]he Governor [has] instructed me to notify the Department of Public Health that any report it prepares should be made available to the press unless there is a specific prohibition in law against it. This may be taken as policy by all departments." Letter from M. F. Small, Departmental Secretary to All Department Heads, Jan. 7. 1952, in Public Records Survey, supra note 47 at 140. The Controller replied to the Miller committee inquiry: "Unless made confidential by law, we regard all records In the custody of this office as being open to public inspection" Id. at 77. 57 Cal. Govt. Code § 1227.

58 This was the bill which received a pocket veto by Governor Warren. See note 42 supra. 50 Section 1227 provides: "The public records and other matters in the office of any officer, except as otherwise provided, are at all times during office hours open to inspection of any citizen of this state." (Emphasis added.)

60 35 Cal. App. 630, 170 Pac. 653 (1917).

61 187 Cal. 510, 202 Pac. 879 (1921).

69 A student writer hailed the Coldwell case thus: "This case establishes the sound rule that a citizen or organization of citizens may inspect all data concerning any activity of the state or municipality irrespective of their character as public records The section

of the Code of Civil Procedure [section 1892] which opens all public writings to inspection has been made mere surplusage by this decision. Everything covered by it and much additional material is accessible under the Political Code. ." Note, 10 Calif. L. Rev. 346, 347-48 (1922).

63 35 Cal. App. 630, 170 Pac. 653 (1917).

The "doctrine of exclusion" as expressed in the Mushet case "has been consistently followed by the courts and this office in its determination of what are and what are not public or private writings." 18 Ops. Cal. Att'y Gen. 231. 235 (1950). See also Ops. Cal. Att'y. Gen. 41 (1948), 13 Ops. Cal. Att'y. Gen. 180 (1949), 16 Ops. Cal. Att'y Gen. 163 (1950).

"doctrine" could have been conceived. Section 1894 certainly has little meaning standing by itself. However, one could question whether the office of the attorney general was required to construe the public records statutes in the restricted manner in which it has. But conceding the attorney general felt constrained by the dicta of the Mushet and Coldwell cases to follow the Mushet "doctrine of exclusion" there appears to have been no requirement for the attorney general to have interpreted "records of the acts" so narrowly.

This is illustrated in an opinion prepared in response to an inquiry from the County Council of San Bernardino raising the question of whether lists of names and addresses of students attending a public high school were "public writings" within the meaning of the statutes. The question concerned lists of pupils maintained by school officials in preparation of reports required under the Education Code and also to serve as aids in school administration. The attorney general applying the "doctrine of exclusion" of the Mushet case, concluded the "records in question are not public records . ." 5 It is significant to note that the attorney general refers to the lists as "records." The preparation of such lists for whatever purpose-certainly is an act. The attorney general still could have applied the Mushet analysis and found such records to be "official documents" that were also "records of acts" and hence to be "public writings."

Also it is to be noted that subdivision 3 of section 1894 of the Code of Civil Procedure refers to "other official documents," which could be interpreted to imply that the legislature intended public writings to include more than "written acts or records of acts." Otherwise, why not "other official records," thus making it consistent with subdivision 2—“judicial records"?

The right of inspection is not an absolute or unqualified right, and even though a document is a public record it is not automatically open to inspection. Section 1892 of the Code of Civil Procedure provides every citizen has a right to inspect any public writing "except as otherwise expressly provided by statute," and section 1227 of the Goverment Code permits inspection of public records and other matters "except as otherwise provided." For reasons of public policy, the legislature in many instances has specifically declared certain records to be confidential or not open to inspection. Also there are particular relationships which the legislature has declared should be protected and preserved inviolate. Section 1881 (5) of the Code of Civil Procedure provides: "A public officer cannot be examined as to communications made to him in official confidence, when the public interest would suffer by the disclosure."

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On several occasions the courts have recognized section 1881 (5) as an exception to the public records statutes. Also it has been held that public policy demands certain types of communications and documents be treated as confidential even though they are in the custody of a public officer and are of a public nature. In the exercise of their investigative powers, government agencies frequently find it necessary or convenient to solicit data that would be available only with the understanding it will be kept confidential and not indiscriminately disclosed. Undoubtedly there are situations in which it is in the public interest that a public official and the integrity of his information be protected. The statute would clearly seem to place the burden on the custodian of the records to demonstrate that "the public interest would suffer by the disclosure," to use the words of section 1881 (5).

It appears there should be some sort of control over the public official in the exercise of this privilege, but this presents a difficult problem. As Hocking has commented, "We say recklessly that [readers or listeners] have a 'right to know': yet it is a right which they are helpless to claim, for they do not know that they have a right to know what as yet they do not know."

08

The Miller committee survey shows that public officials in many instances have assumed a good deal of authority to withhold information and that confusion and inconsistencies exist among the various agencies. Several of them

16 Ops. Cal. Att'y. Gen. 163, 164 (1950). Cross has warned newspaper editors to avoid "routine, indiscriminate requests" for opinions of attorneys general. "These men by their oficial position are advocates of those very office holders whom you are seeking to force to permit that access." The Publisher's Auxiliary, Feb. 16, 1954, p. 1. See also Editor & Publisher, April 25, 1953, p. 106. "Opinions of the attorney general are not of controlling authority, but in the light of the relation of the office to the general government, they are regarded as having a quasijudicial character and are accorded substantial weight by the courts." 6 Cal. Jur. 2d 97 (1952).

San Francisco v. Superior Court, 38 Cal.2d 156. 238 P.2d 581 (1951); Coldwell v. Board of Public Works, 187 Cal. 510, 202 Pac. 879 (1921).

Runyon v. Board of Prison Terms and Paroles, 26 Cal. App.2d 183, 79 P.2d 101 (1938). Hocking, Freedom of the Press 170-71 (1947).