The Los Angeles Times, the corporate parent of the Orange County Register and the 800-member California Newspaper Publishers Association are urging the state Supreme Court to overturn a gag order obtained by Orange County that allows it to keep documents secret that show what top officials knew about alleged sexual abuse of female workers.
In addition, the Virginia–based Reporters Committee for Freedom of the Press, which is led by reporters and editors from the nation’s largest print and broadcast organizations, is supporting the appeal filed at the state Supreme Court in September by Voice of OC and open-government advocate Californians Aware.
“It’s huge,” said Voice of OC attorney Kelly A. Aviles of the corporate, CNPA and national news organization support. “It's [the case] really garnered national attention,” said Aviles, who is also CalAware’s vice president for open government compliance. “I’m really glad the heavy hitters are speaking up and trying to get this resolved before it causes anyone else any problems.”
“It’s heartening to receive such a strong and eloquent endorsement from our colleagues,” added Voice of OC Editor-in-Chief Norberto Santana Jr. “It strengthens our resolve as a small, nonprofit newsroom to continue doing our part in defending our rights as journalists and free citizens to shine a light on government."
At issue is an unusual series of rulings — “more dangerous” than a gag order, according to Aviles — that were requested by county officials and issued by Orange County Superior Court judges that sealed all county records involving alleged sexual harassment by former county Public Works executive Carlos Bustamante.
Bustamante, who was a Santa Ana city councilmana and a rising star among Orange County Republicans, is facing criminal charges in the case.
County officials have been able to effectively gag themselves so they don’t have to comply with California’s 45-year-old Public Records Act, the law that gives the public access to the records of local and state government agencies.
A two-member majority of a three-judge panel on the state's 4th District Court of Appeal refused to deal with the issue.
All of the news organizations plus Californians Aware argue Orange County’s action could start a statewide or even national trend among government agencies that want to hide information from the public.
“The trial court's ruling at issue in this case, which the Court of Appeal declined to review, over the dissent of Justice [Raymond J.] Ikola, risks providing government agencies with an unprecedented means of evading the public records law that threatens to deprive the public and the press of vital information about the conduct of their government,” Kelli L. Sager, an open-government attorney at the law firm Davis Wright Tremaine, wrote to the Supreme Court.
Her letter urged the Supreme Court to either conduct a hearing on the case or send it back to the Court of Appeal for review.
“If permitted to stand, the [lower court] ruling will invite agencies throughout the state to adopt similar improper tactics to shield misconduct and mismanagement,” Sager wrote.
The letter of support was written on behalf of:
- The Los Angeles Times, the state’s largest daily newspaper, and its subsidiaries, including the Costa Mesa-based Daily Pilot;
- Santa Ana-based Freedom Communications, which publishes more than 30 newspapers, including The Orange County Register and weeklies in Orange County as well as dailies in Irvine and Long Beach;
- The California Newspaper Publishers Association, known as CNPA, the statewide news trade association that also advocates for open government and public records issues; and
- The Reporters Committee for Freedom of the Press, a 43-year-old association of reporters and editors that works to defend the First Amendment rights and freedom of information interests of the news media.
To keep records in the sexual harassment case secret, county officials at first balked at releasing them under a request filed by Voice of OC, which filed suit to obtain them.
Officials waited almost a year to seek the gag order, waiting until a civil case was just about to go to trial before Orange County Superior Court Judge David McEachen. At that point, county lawyers turned to the criminal courts and asked for a gag order against the county itself.
They asked Superior Court Judge Gregg Prickett, who was presiding over the Bustamante sexual assault case, to bar the county from making the records public. A separate order, requested by the district attorney’s office, already was in place, keeping documents in the criminal case confidential.
The DA’s office and Bustamante’s lawyer, James D. Riddet, joined the county’s request, and despiter the objections of Voice of OC’s lawyers, Prickett, a former deputy district attorney, agreed.
County lawyers then argued the civil court judge, McEachen, didn’t have the power to release the documents because of Prickett’s order. McEachen agreed with the county, and Voice of OC filed an appeal with the 4th District Court of Appeal, where the two judges refused to hear it.
According to both the appeal to the state Supreme Court filed by Aviles and the “Media Amici” letter in support from Sager, the lower courts were wrong.
All decisions affecting what is or isn’t a public record are exclusively handled through the Public Records Act, they said, adding that the Orange County and court of Appeal judges “squarely violated” a 2002 state Supreme Court ruling on the issue, Filarsky v. Superior Court.
Under that ruling, only the person making the request for public records can take the issue to court if he or she feels records have wrongly been withheld.
“Notwithstanding the strong public interest in scrutinizing the County's conduct, the County has evaded its disclosure obligations under the CPRA by seeking and obtaining a sweeping protective order in a separate criminal proceeding, to prevent it from disclosing public records sought under the CPR,” Sager wrote Oct. 28 in her letter to the state Supreme Court.
“In addition,” her letter stated, “the criminal court issued an extremely broad protective order without meeting the strict procedural and substantive criteria for sealing required by the federal and state constitutions and the Rules of Court. … These issues alone justify the intervention of this Court.”
Sager cited a history of criminal cases in which public records still were released to news organizations, including the Los Angeles Times’ 2010 Pulitzer Prize-winning series on government corruption in the city of Bell.
“The mere existence of a related criminal case does not and should not provide justification for blocking disclosure of public records,” Sager wrote. “To the contrary, the CPRA contains only a limited exemption for certain records compiled ‘for correctional, law enforcement, or licensing purposes.' "
And, she wrote, if the Orange County case isn’t overturned, “agencies would be emboldened to deny meritorious CPRA requests because of the mere existence of or potential for related criminal proceedings with the expectation that most CPRA requesters will not follow through and challenge the denials in court” because of the high costs involved.
The state Supreme Court has until late December to make a decision on the appeal.