SOS: A bill to protect oil refineries also threatens public access rights

Gov. Brown. Veto SB 1300

This bill would establish a stealth template for how to gut the California Public Records Act one economic and political sector at a time. 

By Bruce B. Brugmann (with a First Amendment Coalition emergency message and a button for readers to request a Gov. Brown veto) 

Possibly the bill most damaging to the public interest in years is sitting on Gov. Jerry Brown’s desk for signature. It is SB 1300, which amounts to an oil refinery protection bill proposed by Sen. Loni Hancock (D-Berkeley) and Assemblyperson Nancy Skinner (D-Berkeley), two legislators living in the shadow of the East Bay oil refineries who ought to know better. It was supported by oil companies, organized labor, and the California’s Division of Occupational Safety and Health (DOSH)  and was passed by the Assembly on a 68-5 vote and by the Senate on a 34-0 vote. No debate, no discussion, no questions asked. 

The gist of the damage is that SB 1300 was amended at the last minute to force a CPRA requester to pay fees if a court rules against disclosure. As the California Newspaper Publishers Association explained in its current legislative bulletin, SB 1300 “would expand the definition of what constitutes a trade secret and erect an insurmountable barrier to any effort by a member of the public to obtain information about DOSH’s performance in its role as a consumer watchdog over a refiner’s conduct.”

Peter Scheer, executive director of the First Amendment Coalition (FAC), warned in a special message that “it’s safe to say that no one will ever file a CPRA request for refinery information once it becomes known that a mere request may thrust the requester involuntarily into a costly battle against oil companies.” But just to be sure no one even contemplates filing a CPRA request, Scheer noted that the last minute amendments to the legislation also provide that the requester will have to pay his/her own fees as well as the fees of the oil company’s lawyers if he/she loses the suit. 

CNPA General Counsel Jim Ewert and Staff Attorney Scott Merrill worked furiously to try to  negotiate with Hancock’s staff and DOSH representatives to eliminate the toxic effect on CPRA requesters. But all CNPA amendments were rejected before the bill was taken up by both houses. Hancock told the CNPA advocates repeatedly that she would rather have the information in DOSH’s hands even if that meant that the public wouldn’t have access to it. 

Scheer wrote that “some may say that these changes to existing law, while terrible, are not such a big deal since they only curtail access to information about refineries. (This is presumably the view of organized labor, which cynically backs SB 1300 after getting a special carveout for refineries’ employment and financial data that unions want.)

“Try telling that to the families who live downwind of refineries.  But more than that, SB 1300 establishes a template for how to gut the CPRA one economic and political sector at a time. First, it’s information about oil companies; next it will be information about schools or about law enforcement or about water supplies. SB 1300 creates a dangerous precedent for other industries and special interets to follow.

“Don’t let that happen. Tell Governor Brown to veto SB 1300.”  

Below is the full text of Scheer’s message on the FAC website with a response button to email, fax, or phone requesting Gov. Brown to veto SB 1300.  CNPA is emailing Scheer’s message to its member papers in its Sept.12 Legislative Bulletin, several are preparing stories and editorials, and public access activists are mobilizing opposition across the state. Brown was expected to sign the bill, until CNPA and FAC blew the bugles and started blasting away.

 Meanwhile, ask Hancock and Skinner and DOSH how they came up with this abomination and ask your local senators and assemblypersons why they voted for it without gulping. You can start with the San Francisco delegation, all of whom voted for the bill (Assemblymen Ammiano and Ting and Sen. Leno). On guard, b3

Gov Brown, Veto SB 1300. Ostensibly about oil refineries, SB 1300 threatens public access rights.

P.S. CNPA laid out this Kafkaesque scenario for people who have the gall to request information on emissions from a nearby oil refinery fire: 

 “ A mother and her family driven from her home by the emissions from a fire at a nearby refinery submits a CPRA request to DOSH for information that she believes is disclosable about the next turnaround at the refinery to determine how safe the refinery is. Because her request could include trade secret information as now defined, DOSH notifies the refinery that a request for the refiner’s information has been received.

“The refinery files an action against DOSH for injunctive relief to prevent the disclosure of the information and, since the bill requires the refiner to name the requester as a real party in interest, the requester is named as a party in the lawsuit filed by the refinery.The requester, who may or may not have been willing to go to court to enforce her rights under the CPRA, now finds that she is an unwilling party in a lawsuit.

” If she decides to participate in the action to pursue the information she believes she has a right to obtain she will have to pay her own expenses for a lawyer and the costs associated with the action. If she decides not to pursue her rights she risks that a default judgment could nonetheless be entered against her.

 “If the court denies her request, or a default judgment is entered against her, the court would be required to order her to pay the refinery’s attorney’s fees and costs.

 “SB 1300 was also amended to provide ‘the public agency shall not bear the court costs for any party named in litigation filed pursuant to this section.'”  Incredible. Simply incredible.  b3

For the  CNPA letter asking Gov.Brown to veto the bill, click the link below

https://docs.google.com/file/d/0B8sxRIlFa7G4Ql8xRExkT095cU1tbzdOeHRNLTZaRDIwUkMw/edit

(The Bruce blog is written and edited by Bruce B. Brugmann, editor at large of the San Francisco Bay Guardian. He was the editor and he and his wife Jean Dibble co-founded and co-published the Guardian, 1966-2012.)