By Miriam Raftery
Photo: Donna Frye presenting Sunshine Award to CALAWARE’s Terry Francke
September 15, 2014 (San Diego)--Californians Aware, or CALAWARE, a nonprofit group that protects the rights of citizens and journalists to access public information, has sent a letter to Governor Jerry Brown urging him to veto Senate Bill 1300.
As East County Magazine reported earlier this week, SB 1300 was originally touted as a way to strengthen regulation of oil refineries. But amendments pushed through by the oil industry would allow oil companies to broadly exempt information from disclosure by claiming trade secrets and worse, the bill would give oil companies the right to sue members of the public or press who file public records requests.
CALAWARE president and former San Diego Councilmember Donna Frye wrote to thank ECM for our story alerting the group to the bill. Now CALAWARE’s general counsel, Terry Francke, has written a letter to Governor Brown which states that the bill not only would create bad policy, but that a key provision has previously been ruled illegal by the state’s highest court.
The bill would create needless bad law in two ways, says Francke. First, it requires anyone making a request to OSHA (the division of Occupational Safety and Health) for records on oil refineries’ shutdowns for maintenance to risk involvement in a lawsuit brought by refinery owners to block access to that information.
Francke writes, “Such pre-emptive litigation, when brought by public agencies to thwart access to information under the California Public Records Act, was ruled invalid by the California Supreme Court in Filarsky v. Superior Court…”
In that case, the court held that “members of the public could be discouraged from requesting records, because a simple request for disclosure and a denial by the public agency could require the individual to defend a civil action in which he or she would be liable for costs if the agency prevailed and in which the individual would not recoup attorney fees if he or she succeeded.” Litigation and any appeal would also delay disclosure of records, the court noted.
Calaware’s attorney further objected to the SB 1300’s broadening of trade secret provisions and forcing litigation, instead of simply exempting specified types of materials as trade secrets, as is already done for many proprietary items such as details of oil and gas leases.