February 18:   Sunshine Ordinance Filed

The Citizens' Sunshine Ordinance was filed at City Hall today. The City Attorney now has 20 days to create a Title and Summary, after which the City Clerk has 3 days to approve petitions, before signature gathering can begin.
February 17:   Charter Amendment Pulled

Due to the timing of November elections, and the number of additional signatures required for a Charter Amendment, the Sunshine Steering Committee voted to pull the previously submitted Article XVIII in favor of a regular (non-Charter) Ordinance. This will reduce the number of signatures required and permit the Ordinance to be placed on the November ballot. The Ordinance will not have the force of law that a Charter Amendment would have, however, it does avoid the risk of a costly special election should the City Council have denied our request to place the Amendment on November's ballot. A Charter Amendment is still an option for the 2012 election.


February 05:   Sunshine Ordinance Charter Article XVIII Filed

The Citizens' Sunshine Ordinance was filed at City Hall today, as Charter Amendment XVIII. The City Attorney now has 20 days to create a Title and Summary after which the City Clerk has 3 days to approve petitions. We expect to begin signature collecting on March 2nd.
November 17, 2009:   Final Draft Sunshine Ordinance released for Public Comment

After many months of meetings, public input, and updates, a final draft version of the Sunshine Ordinance is now available online.
October 21, 2009:   Public Records Request Denied

After informal requests to City Staff went unanswered the Citizens' Sunshine Committee submitted a Public Records Act request in order to determine how Staff came up with their budget estimates. The scope of the City's reply surprised everyone.

City Manager Kamlarz claimed the requested documentation was exempt from the Public Records Act because "the City's interest in not disclosing the documents outweighs the public interest".

Such categorical denials are, we understand, a standard "boilerplate" response to the majority of PRA requests received by the City.
June 2, 2009:   Sunshine postponed

Continuing the trend of delays, City Council Tueday failed to hear the scheduled Sunshine Ordinance item before their midnight deadline. The next opportunity for a public hearing will likely be after recess, sometime in September.

The City Council had scheduled staff's report on our Proposed Sunshine Ordinance Charter Amendment (PDF) [cached] to be heard as item #37 at the Tuesday, June 2nd Council meeting. See report pages 1-9 and 50-58 for the analysis.

See also Dean Metzger's letter titled Open Government in Berkeley and the Sunshine Ordinance in the May 28 Daily Planet.
May 15, 2009:   2008 Sunshine Proposals Compared

An item-by-item comparison of the 2008 Draft Citizens' Sunshine Ordinance and the Draft Ordinance Prepared by the City Attorney is now available online in HTML and PDF.
April 22, 2009:   AB520 Update. Rialto/Brown's `Vexatious requestor' bill pulled due to opposition.


Apr. 17:   Attorney General Jerry Brown is sponsoring a bill, AB520 (text and legislative history) that would let government agencies and local governments file petitions to have people declared "vexatious requestors" of public records.

An agency or local government would have to allege that the requestor was seeking records for an "improper purpose." What's an improper purpose? "Harassment of a public agency or its employees." No further explanation is given.

If a judge agrees, then the agency can stop responding to public records from the "vexatious requestor."

Assemblywoman Wilmer Amina Carter, D-Rialto, introduced the bill on behalf of Brown.

We (the SFPPC) learned of the bill from the California Newspaper Publishers Association Legislative Bulletin, which says the bill is scheduled to be heard by the Assembly Judiciary Committee on Tuesday (April 21). Here's a list of that committee's members, their e-mail addresses and phone numbers.

CalAware has also written this letter in opposition to the bill.

March 20, 2009:   Happy Sunshine Week! The League of Women Voters urges you to participate in Sunshine Week 2009 - a national initiative dedicated to the importance of open government and freedom of information.

See the LWV's Openness in Government page for more information.
March 20, 2009:   California lacks enough sunshine. We're not talking about the kind that radiates from that bright orb in the sky. The Golden State has plenty of that. By sunshine, we mean open government.

Reporters who checked online government databases nationally found that compared with other states, California lacks the kind of sunshine that illuminates the information its government collects.

Source: Sacramento Bee Editorials
February 4, 2009:   Real Sunshine Could Be in Berkeley's Future

By Dean Metzger
Source: Berkeley Daily Planet
After two years of work, an independent citizens' group has submitted a cutting-edge, open-government ordinance to the City Council for its consideration. The Citizens' Sunshine Ordinance, if adopted by the council in its entirety, would shed real sunshine on city business. All city records, except for those otherwise protected by law, would be made available to the public in a timely way. There would be sufficient time before legislative bodies met for citizens to obtain and review records related to agenda items. Most significantly, this ordinance, unlike any other passed so far in California, would have an independent body to enforce its provisions. Now, it's up to the City Council to take the bold step of adopting such a progressive ordinance without weakening its provisions.

Approximately two years ago, the City Council held an open workshop to discuss the city attorney's draft Sunshine Ordinance. The League of Women Voters, the Amercian Civil Liberties Union (ACLU), Californian's Aware, the Society of Professional Journalists, and Berkeleyans Organizing for Library Defense (SuperBOLD) were invited to participate in the discussion. At the conclusion of the workshop, the City Council asked the League of Women Voters to put together a group of citizens to review and rewrite the draft. The League invited all citizens to attend a meeting at its office to discuss the issue. The Citizens' Sunshine Committee was formed at this meeting.

The Citizens' Sunshine Ordinance is the product of two years of work by this independent citizens' group. This group has been, and still is, open to the public. We studied similar ordinances from San Francisco, Oakland, and San Jose, as well as the Berkeley city attorney's draft ordinance. Then, we adopted their best provisions and added more, where we found them lacking. We also consulted with the First Amendment Coalition, Californians Aware, and other attorneys.

Specific procedures for compliance and enforceability are key differences between our ordinance and any other found in the United States. Our ordinance will put Berkeley on the cutting edge of progressive legislation, if it is not watered down for political purposes.

Some of the features of the Citizens' Sunshine Ordinance are:

# It removes vague and confusing language and procedures that are in the city Aattorney's draft. It empowers the citizens of Berkeley to become involved in their city government by clarifying procedures for public comment and noticing of public meetings.

# It details procedures for meetings, record keeping, and enforcement, so everyone knows the rules and has the same information as decision makers and that this information is made available well in advance of decisions being made.

# It provides clear timelines and specifies exceptions for emergency situations.

# It details how legislative action can be rescinded when violations occur and what remedies are available.

# Most important is that the Citizens' Sunshine Ordinance creates means of enforcement that are quick and practical, without taking away the right to judicial review. This makes Sunshine work.

The procedures to be followed by the legislative bodies and city staff are spelled out so that all parties know what is required of them. This should reduce the cost of government and offset any cost of implementing the Sunshine Ordinance. When everyone knows the rules and procedures, they can be enforced without lawsuits. Under the status quo, far too much is spent by the city in defending itself against citizen lawsuits. Our ordinance allows for the settlement of any dispute at the local level, rather than having to go to Superior Court.

San Francisco, Oakland, Benicia, Riverside, Vallejo, Gilroy, Milpitas, and Contra Costa County have all adopted Sunshine Ordinances. San Jose has been working on its ordinance for more than two years. All of these ordinances have one large problem: none have an independent enforcement provision. This means that those who are supposed to enforce sunshine are the same people who are violating the law-a conflict of interest to say the least. For this reason, San Francisco is considering whether to go back to the voters to enact an independent enforcement provision, not unlike ours.

Another problem is that existing Sunshine Ordinances do not contain enough detail for a clear understanding by citizens; thus, citizens have a difficult time understanding how to be heard by legislative bodies or city staff, or how they may obtain documents that are critical for debating the issues. Our Sunshine Ordinance addresses this, providing, for example, that the city may no longer refuse to produce the critical intra-staff memos that are often the basis for council decisions.

A primary consideration is whether any proposed ordinance will allow for an independent enforcement provision. Without this provision, Sunshine becomes just another piece of legislation that looks and feels good, but can be ignored. If real, independent enforcement is not part of Sunshine, then there is no guarantee that the workings government will be open and transparent. The strength of our Sunshine Ordinance lies within its enforcement provisions.

We recognize that our draft compromises many important issues; some think it goes to far, and others think that it does not go far enough. That is why we want that the City Council and staff to work with us to reach a consensus without destroying the basic purpose of the ordinance, which is to have as strong a sunshine ordinance as possible. If we work together, we can come up with the first effective, practical, and enforceable Sunshine Ordinance in the State of California.

Our Sunshine Ordinance can be viewed at berkeleysunshine.org

We invite members of the public to contact us with comments or to invite us to speak to any community groups. Contact us at info@berkeleysunshine.org.

January 27, 2009:   As expected, the City Council referred the Draft Sunshine Ordinance back to staff for review. You may be able to find out when the review comes back to the council by the city website: www.ci.berkeley.ca.us.

Note that City URLs move frequently, have no RSS index, are often not updated until long after an issue has been acted on, and the City website's Search function rarely works. These are issues that the Citizen's Draft Ordinance addresses while the City Attorney's Draft does not.
January 25,2009:   The Draft Sunshine Ordinance is item #17 on the Tuesday Jan 27th City Council meeting Agenda. The item is for the Council's formal approval to pass the document on to staff.
January 21, 2009:   President Obama said today "For a long time now, there's been too much secrecy in this city. The old rules said that if there was a defensible argument for not disclosing something to the American people, then it should not be disclosed. That era is now over. Starting today, every agency and department should know that this administration stands on the side not of those who seek to withhold information but those who seek to make it known."
Berkeley Sunshine Ordinance Citizens Group

Dec. 15, 2008

Mayor Tom Bates and City Council Members,

Subject: Citizens Sunshine Ordinance

The Citizens Sunshine Group asks you to refer the Citizens Sunshine Ordinance draft to the appropriate City staff for their review and recommendations for making sunshine a reality in Berkeley.

We have worked for approximately two years to develop the document you have before you. Throughout the entire process we have worked to make Berkeley’s Sunshine Ordinance the best in California, both for the City and its residents.

The key principles’ used to write this Ordinance follow:

  1. To create rules and regulations’ that respect everyone. Codifying the rules for meetings so that everyone is treated fairly and given equal time for presenting and communicating on City issues is paramount. This Ordinance accomplishes that.

  2. Citizen participation in government requires equal access to all information. If clear rules are not available to everyone, it leads to confusion and dissatisfaction with our city elected officials and city staff. Their job is the serve the citizens of Berkeley. This Ordinance spells out how access to information and documents is to be accomplished so everyone can understand who is responsible for their actions. By establishing a procedure for record collection and distribution, all information can be shared.

  3. Any sunshine ordinance must have an enforcement element if it is to be useful to the cities citizens. In out search of other cities ordinances, no effective enforcement procedure was found. In fact, the complaints of San Francisco and Oakland ordinances are almost entirely based on the lack of effective enforcement. This ordinance changes that. Berkeley can be the first city in California to have a meaningful Sunshine Ordinance.

The Ordinance defines the scope of its enforcement polices to ensure the purpose of the commission is to enforce the rules only and does not make legislation.

Independence is critical and necessary. Any decision the commission makes can be challenged in the courts of California.

  1. The relationship of the Ordinance to the Brown Act and the California Public Records Act should be viewed as a strengthening of those laws. Parts of them have been included, references to them has been intentionally left out. This was done to ensure those provisions remain in effect regardless of any changes the State Legislature makes to them in the future. It is not an attempt to disregard the two acts, but to make then stronger.

While our city elected officials and city staff may consider this Ordinance unworkable, the Sunshine Group looks forward to working with you and staff to find comprises that maintain the purpose of the Sunshine Ordinance.

Sincerely,


Dean Metzger