News
Law Office Management
Aug. 2, 2010
The Sunshine Boys
Is investigative journalism a dying art? Not in tiny Glenn County, where newspaper publisher Tim Crews and his lawyer wield the California Public Records Act to make local government agencies more transparent.
It's not hard to distinguish the attorney from the client. The lawyer, 53-year-old sole practitioner Paul Boylan, who practices out of Davis, is wearing a neatly pressed black suit, a crisp purple tie, and shiny black shoes that nicely set off his carefully trimmed salt-and-pepper goatee. It's the kind of look that instills confidence, a look that quietly says esquire. The client, 67-year-old Tim Crews, is considerably less well put together. A ruddy-faced bear of a man, Crews is the editor and publisher of a tiny, semiweekly newspaper in Glenn County, which is a poor, rural area toward the top of the Sacramento River Valley. With his scraggy white beard, red suspenders, and a rumpled red T-shirt, Crews could easily be mistaken for a department store Santa Claus - albeit one with a serious case of cabin fever. And yet, as odd a couple as these two are, Boylan and Crews do share a common passion: They love to shake down recalcitrant bureaucrats for undisclosed government documents. In fact, Boylan has represented Crews in more than two dozen cases over the past five years when the publisher has either sought government records under the California Public Records Act or pursued violations of the state's open meetings law. Their objective, they say, is a simple one: to shed light on the dimly lit machinery of government. Call them The Sunshine Boys. "Tim gets himself in situations where - what can I say - a lot of interesting and novel issues are generated," Boylan observes. Crews, in turn, expresses an appreciation for Boylan's expertise. "I don't know a better advocate for transparency in government than Paul," he says. Crews, who grew up in Washington state, runs his Sacramento Valley Mirror from a modest building in downtown Willows, which is the county's seat. The office space goes unheated in the winter, and has what Crews refers to as "whorehouse wallpaper," left over from the days when it was a jewelry store. But the rent is cheap: just $420 a month. Crews has had quite a wild ride here. Once, he went to jail for five days for protecting the identity of a confidential source. On another occasion he battled a fire that apparently had been set in the office next door to his. And in 2004, his beloved dog, a German shepherd?Rottweiler mix named Kafka, was mysteriously poisoned to death. To this day, Crews strongly suspects foul play. "Tim is one of the most vilified people around," Boylan readily acknowledges. "One of the biggest complaints is that he forces public entities to pay money in the form of attorneys fees. They think it's the most horrible injustice in the world, when in reality the focus should be on the fact that these public entities withheld documents they should have turned over." "He's an interesting guy, there's no question about it," says Denny Bungarz, a former Glenn County supervisor. "When I was on the board of supervisors, I'd get calls from people about articles that were in his paper about what was going on in the county, and the articles were not terribly accurate." "Many people I talk to refer to the paper in a very negative undertone and won't buy it" because they think it's too opinionated, adds Steve Holsinger, city manager of Willows, an hour and a half north of Sacramento. "Yet the first thing they do when they come into the office is pick up a copy to read. In this community, Time magazine has a limited number of subscribers, but everyone seems to know what's in his paper." In one series of hard-hitting articles, Crews relied on education agency records to show that a local school official used county resources for vacations, travel to personal speaking engagements, financial deals with friends, and to campaign for the election of the official's chosen successor. Another set of stories detailed the $25,000 remodel of court chambers that had been slated for closure in the town of Orland. In that case Crews and Boylan have been fighting Glenn County for more than a year to obtain undisclosed documents. "In the private sector, if you spend your employer's money improperly, they're going to fire your ass," Crews says. "It ought to be the same thing with public money. One of the reasons why Glenn County is so poor is that they piss away so much money." At a time when most newspapers are just struggling to stay alive, Crews is part of a vanishing breed - a journalistic spotted owl, if you will. Last November, the California Press Association cited his unusual dedication to uncovering local government secrets in naming him Newspaper Executive of the Year. And Boylan, too, is a rare bird. "It takes a huge expenditure of time and money to go after public records," says Boylan, "and then you have to go up against a judge who's reluctant to give you your fees. Under those circumstances, it's a huge risk, and there aren't a lot of lawyers willing to take it." In fact, to make ends meet Boylan has had to work hard to broaden his practice. For example, drawing on his Southern California contacts (he lived in the Los Angeles area for awhile), he continues to compose nondisclosure agreements for sports and entertainment figures who hope to deter their hired help from betraying confidences. He also represents county school and fire districts, and does some lobbying in Sacramento. "You're not going to get rich doing public records cases," he says. "But it's really interesting work." Somehow, though, the word interesting doesn't quite capture what he's trying to express, and after a pause he adds: "It's fun getting public records that someone's trying to hold back. It's fun when they underestimate you. It's fun creating attitude adjustments. It's just fun." Of course, this fun wouldn't be possible without the California Public Records Act (CPRA) (Cal. Gov. Code §§ 6250?6276.8), which Gov. Ronald Reagan signed into law in 1968. The statute is based on the federal Freedom of Information Act (5 U.S.C. § 552), which was championed by John Emerson Moss, a Democratic congressman from Sacramento. In 1955 Rep. Moss headed a series of congressional hearings that documented excessive government secrecy, and he pressed for a law that would prevent records from being routinely withheld from public scrutiny. But with Dwight Eisenhower in the White House the Republicans weren't so receptive to the idea, and that didn't begin to change until after John F. Kennedy was elected president in 1960. In the fullness of time, an Illinois Congressman named Donald Rumsfeld (yes, that Rumsfeld) would prove to be one of the strongest Republican supporters of the bill. He signed on as a co-sponsor of Moss's bill, and by the mid-1960s was denouncing what he called the "suppression of public information" by the Johnson administration. In 1966, the Freedom of Information Act passed the House by 307?0. Seeing the handwriting on the wall, President Johnson grudgingly signed the bill into law that year. But LBJ's personal disdain for the legislation was widely known. In fact, he refused to hold a formal signing ceremony. Johnson's press secretary, Bill Moyers, would later say that the president "hated the very idea of the Freedom of Information Act; hated the thought of journalists rummaging in government closets and opening government files; hated them challenging the official view of reality." Two years later, the California Legislature passed the CPRA, aimed at giving citizens similar access to state and local government records. Hailed at the time as one of the country's strongest public records laws, the CPRA covered all state and local government agencies, including any boards or commissions created by an agency, as well as school districts. When the act is involved, the agency in question bears the burden of justifying nondisclosure and, as the act states, "any reasonably segregable portion ... shall be available for inspection ... after deletion of the portions which are exempt." Moreover, the courts have interpreted the CPRA to include not only written documents created or received by a public agency, but also emails, faxes, and voice mail messages. Still, there were loopholes. For example, the act did not cover access to court records, nor did it cover the Legislature. The act also exempted privileged discussions between attorneys and client agencies, as well as appointment calendars, phone records, and other documents whose release might impair the deliberative process of government officials. Over the years, the "deliberative process" exemption has been especially nettlesome to attorneys fighting to gain greater access to public records. A 1991 California Supreme Court decision that prevented Gov. George Deukmejian's appointment schedule from being made public significantly broadened the deliberative process exemption; it is now often cited by state and local agencies as a reason to withhold documents (Times Mirror Co. v. Superior Court, 53 Cal. 3d 1325, 1336 (1991)). Terry Francke is the co-founder and general counsel of Californians Aware, a nonprofit group based in Carmichael that advocates for open government. "Deliberative process," he observes, "is being used as a backstop for anything that's considered sensitive about a government decision, even though the purpose of the CPRA is to let citizens figure out what the government was thinking when it made certain decisions." Though the CPRA allows for the awarding of attorneys fees, it specifies no penalties for agencies that ignore a records request. "Right now it's very easy for agencies to simply ignore a public records request, because they know that it's the rare requester who's going to pursue litigation," says David Greene, executive director and staff counsel for the First Amendment Project, an Oakland-based nonprofit association. "There's a great variation among agencies in the state, about both their awareness of what their duties are and their knowledge of what the law requires. We hear stories from requesters all the time that they get yelled at or treated discourteously because they've made a records request." And for those requesters who do fight, the deteriorating financial health of both state and local government agencies can also work against them. "Superior courts are ultimately creatures of their county," Boylan explains. "If the county is strapped for cash, they're a lot less likely to hold in favor of a litigant asking for records, because by doing so they've obligated the local government to pay the other side's attorneys fees. So it's getting that much tougher to get records." As tight as Crews and Boylan have become, these two weren't always fighting on the same side. In fact, 15 years ago Crews sued Boylan for defaming him. The story goes like this: Back in the 1990s Crews filed a public records request with the Glenn County school district, which Boylan represented at the time. Boylan felt the information was privileged, and he recommended that the board deny the request. That touched off an acrimonious exchange that included some disparaging remarks Boylan made during a radio interview, which Crews sued over. The suit was settled out of court. But over time the two began to warm up to each other. "I came to admire Tim," Boylan says. "I could see that this is a person who has a lot of principle behind what he was doing." Crews launched the Sacramento Valley Mirror in 1991 from a motel room, with just $35 in his pocket, after leaving the nearby Tri-County Newspapers. Today, his paper competes with the semiweekly Willows Journal and Orland Press Register, which are owned by Irvine-based Freedom Communications, publisher of the Orange County Register and more than a hundred daily and weekly newspapers nationwide. The Mirror's 2,910 Glenn County readers live in a predominantly agricultural community situated halfway between Sacramento and Redding. Its main crops are rice, almonds, plums, walnuts, and prunes. Willows is its largest town, with a population of just over 6,000 residents. But for most people driving north on Interstate 5, Glenn County is little more than a blur on the way to Oregon. The last Democratic presidential candidate to win a majority here was Lyndon Johnson back in 1964. And about 18 percent of the county's 27,000 residents now live below the poverty line. "In my little county, only 20 percent of the homes are online," says Crews. "We tore down the newspaper's website and our circulation went up. No one reads the paper online." The youngest person on the Mirror's three-person payroll is 48. (Two additional staffers are unpaid.) And for a while, the paper's contributing editor was homeless. To keep costs down, Crews does a lot of the work himself. In addition to editing and publishing the paper, he reports and writes news stories, and often he shoots the accompanying photographs. He keeps a police scanner squawking on his bedside table at night, a habit that one of his ex-wives (he has four of them) didn't appreciate. "She said I paid more attention to the police scanner than I did to her," he laments. Every issue of the Mirror carries detailed police logs. These not only recount crimes, but also reflect the tenor of small-town life: 10:22 p.m. Officer Johnson responded to a report of a loud banging coming from the area of East and Chapman. He contacted [the resident], who reported that her son had been using a drum set. [She] agreed to keep it down for the night. But of course, it's the stories about the hidden workings of local government that draw the most heat and light. In one 2007 episode, Boylan sought an order compelling the Glenn County Sheriff's Department to produce a list of internal computer records so that Crews could determine whether employees were visiting pornographic or other inappropriate websites at the taxpayers' expense. The case settled out of court, with the county agreeing to implement protocols that preserve a list of URL addresses visited by sheriff's personnel. Last year, Boylan requested copies of a year's worth of email sent or received by the Willows school superintendent after Crews was tipped off that a school official was using his staff and computer equipment for a campaign to recall the county Superintendent of Schools. Instead of providing the messages in their original electronic format, the school district printed out and rescanned each email, creating a PDF image. The resulting files could not be searched electronically, nor did they contain crucial metadata - information such as the names of senders or recipients. In March a trial court ruled against Crews, finding in a tentative decision that there was no duty to release the emails in the original, searchable format (Crews v. Willows Unified Sch. Dist., No. 09-CV-00697 (Glenn County Super. Ct. tentative decision issued March 26, 2010)). But Crews remains undeterred, and at this writing Boylan anticipates filing an appeal. "The way you avoid getting into a fight over public records is by never asking for them," says Crews. "What I've found over the past 25 years is that if I don't go to the source documents, I don't find out what's really going on. If you want to know how a government agency is working, you have to be able to look at source documents like phone logs and emails." Another public records case that has drawn both attention and controversy concerns documents detailing the remodeling of a superior court judge's chambers in the town of Orland. In late 2008, Crews found out that extensive remodeling was underway even though the court was scheduled to move its operations to nearby Willows within a year. For several months, Crews tried in vain to obtain documents that itemized costs for the renovations and any competitive bidding on the project. In June 2009, Fifth District appeals court Justice Betty Dawson granted the Mirror's demand for court spending records. She noted that even though the California Public Records Act did not explicitly apply to the requested documents, the "spirit" of the act was what counted (Crews v. Superior Court, No. 09-CV00684 (Glenn County Super. Ct. writ of mandate issued June 18, 2009)). That ruling seems to have had a sizeable ripple effect. As Boylan notes: "After our case, I received phone calls from the staff of state Assembly committees that wanted to require the Judicial Council to create new rules making it clearer that the public has the right to scrutinize [court] spending records." And sure enough, early this year a new rule did go into effect. Rule 10.500 of the California Rules of Court grants broader access to judicial administrative records maintained by state trial and appellate courts. The new rule says, in essence, that judicial administrative records are open to the public unless specifically exempt. "I can't tell you Tim and I were solely responsible for that change," Boylan says, "but we certainly were an instrument." long with Crews and Boylan's exploits, perhaps the biggest public records case to be decided in recent years is the state Supreme Court's 2007 ruling in favor of granting the Contra Costa Times access to the salary information for government employees, including police officers (Int'l Fed'n of Prof'l & Technical Eng'rs v. Superior Court, 42 Cal. 4th 319 (2007)). At issue was whether the names and salaries of public employees earning $100,000 or more a year are exempt from disclosure under the CPRA. The original suit was filed against the city of Oakland. The state Supreme Court ruled that government employees should have no expectation of privacy about their gross salaries even if the disclosure of the information "may cause discomfort or embarrassment." Police salaries also were deemed to be part of the public record, except in instances where anonymity is essential to an officer's safety. The opinion was sharply critical of a 2003 appellate court decision affirming that an employee's right to privacy had precedence over a newspaper's right to salary information from five cities in San Mateo County (Teamsters Local 856 v. Priceless LLC, 112 Cal. App. 4th 1500 (2003)). The Contra Costa Times victory spawned dozens of media stories about profligate government agencies doling out fat salaries to their employees. In February, for example, California Watch - a project of the Center for Investigative Journalism - reported that even amid a crippling financial crisis, employees throughout California's government routinely were allowed to stockpile large amounts of vacation time, enabling hundreds to end their careers with payouts in excess of $100,000. One worker cashed out enough vacation and compensatory time to walk away with more than $800,000 - not bad for government work. But, of course, the newspaper business isn't what it used to be - nor perhaps is the Contra Costa Times. In fact, the same year it won its big Supreme Court victory, the paper was bought by the MediaNews Group, a Denver-based newspaper company far better known for its aggressive cost-cutting than its investigative journalism. (In 2009 alone, the paper laid off 18 newsroom employees.) So who will do this investigative work in the future? Watchdog groups, which are funded by membership dues, contributions, book sales, training session fees, and the occasional grant, will at least partially fill the void. One such organization, Californians Aware, is already ramping up its litigation efforts against recalcitrant local governments. Lone crusaders are also fighting to keep local governments transparent. For example, Rich McKee, a chemistry professor at Pasadena City College, has filed nearly two-dozen lawsuits since 1993 alleging infringements of the CPRA and the Ralph M. Brown Act open meetings law (Cal. Gov. Code §§ S4950-54963). When he's not teaching chemistry, McKee monitors news reports and blog entries from around the state for signs of possible violations of open meeting laws. He sends out about one letter per week to errant local councils, boards, and agencies demanding corrective action, and threatens to sue if they don't comply with the letter of the law. But not every case is a winner. Last year, in fact, McKee had to pay $80,000 in legal fees after a lawsuit against the Orange Unified School District fell flat. McKee had filed the suit after the Southern California school district deleted a board member's comments from a recording of a meeting before sending it to a public access channel for broadcast. (The CPRA allows defendants to recover fees and costs if the court finds that the plaintiff's claim is "clearly frivolous.") McKee remains unbowed. "There certainly are a lot more things that people could take on to keep public agencies open and above-board," he says. The Tim Crewses and Paul Boylans of the world, after all, can only do so much. One afternoon earlier this year, Paul Boylan was standing in Crews's office admiring the publisher's latest handiwork. The front page of the paper had a story about staff and program cuts made in the tiny Stony Creek Joint Unified School District that serves Grindstone Rancheria, a hard-scrabble native American village. Crews was able to produce this and other stories on the inner workings of the struggling school district after a pointed letter from Boylan freed up documents detailing both the district's budget and a dismissed teacher's contract. Score another small victory for the Sunshine Boys. "In my little flat-earth corner of the world, I'm trying to get people to participate in democracy by showing them what's really going on," says Crews. "Not what the government wants them to know, but what's really going on." His lawyer couldn't agree more. "I think every attorney is looking for something special," Boylan says. "I found my reason to practice in public records and First Amendment work. There's a chance to change things. There's a chance to do good." He continues: "There's not an attorney out there who hasn't been asked by a client to do something that deep down he knows he shouldn't be doing. When it comes to fighting for the release of public records, though, that never happens." Tom McNichol is a San Francisco?based freelance writer.
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Kari Santos
Daily Journal Staff Writer
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