DOING FREEDOM! -- Sunshine Laws

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Sunshine Laws
Exposing Anti-Freedom Illegality And Stupidity For Fun And Profit

by
Jim March
Email

Introduction

"Sunshine laws" are rules that allow public inquiry into government affairs. "Open meeting laws" such as California's "Brown Act" force public access to the decision-making processes of government bodies, both on paper and in person, while the Federal "Freedom Of Information Act" (FOIA) and it's state-level relatives (Public Records Act in California (1)) force most government documents to be "public record" and available for inspection or copying by any citizen or legal resident alien who asks (2).

We're going to focus on the use and tactics of public document access. Meeting minutes and transcripts under "open meeting laws" can also be a rich source of information at times, and can be asked for just like any other government document under the FOIA or similar.

A third source of data revolves around campaign contribution records.

Please note that I am not an attorney. This article should give people a good starting point and generate ideas, but it is not specific legal advice.

In this article, we're going to look at two very successful uses of "sunshine laws" to expose problems, and one ongoing case.

CASE HISTORY ONE: The Demise Of The Million Mom March

Early in 2001, Nadja Adolf (NRA and Second Amendment Sisters activist) was approached by other SAS members about an oddity on the web page for the "Million Mom March" gun control organization: their address was within "San Francisco General Hospital", which is wholly owned by and operated by the city and county of San Francisco.

Nadja and I decided to take a closer look.

1) On the Internet, we confirmed that at least one of their many organizations (at SF General) was an overtly political organization (IRS 501(c)(4) tax status) the way the NRA/ILA is, versus a "tax deductible non-political educational charity" (501(c)(3) like the main NRA. Not surprising, since the original "Numerically Challenged Mom March"(3) of May 2000 in DC was invented by the Democratic National Committee.

2) We asked for the latest tax filings for the Million Mom March tax-exempt organization, which yielded interesting clues: a total lack of rent payments, the names of key officers, etc. It also yielded an up-close look at grabber psychology that Nadja and I won't soon forget - it was Nadja who managed to sweet-talk us up past their impressive security/intercom system, and the reward was to watch them freak out when they realized there were "NRA nuts" on-premises, despite our civilized demeanor. Watching their 130lb unarmed "security person" catch a glimpse of 280lb me, and whimpering, was worth all the madness. (In order to be a tax-exempt public charity of either tax status, especially 501(c)(3) where the donations are tax-deductible, you have to make your IRS filings public. Yet another source of data at times.)

3) Paydirt came when we filed a "Public Records Act" inquiry aimed at the Hospital:

PUBLIC RECORDS ACT REQUEST

Dear Angela Carmen,

This is a request for information made pursuant to the California Public Records Act, James March hereby requests copies on paper or in electronic form of any sort of the following information:

1) Details on how much office space is currently being devoted to the organizations known as "The Bell Campaign" and/or "The Million Mom March" on property owned by or managed by SF General Hospital. The number of rooms and approximate sizes of each will be sufficient, we don't need square inches.

2) A list of all employees, volunteers or other individuals who have hospital access because of their involvement with either of the two orgs listed in query #1.

3) A list of all hospital staff who also work on the staffs of either of the two orgs listed in query #1.

4) Details of any lease agreement with either of the two orgs listed in query #1.

5) Copies of any documents from either of the two orgs listed in query #1 that establishes their charitable and/or tax-exempt status pursuant to 501(c)3 or similar tax codes.

Dated: 2/21/01

James March _____(signed)__ (contact info, email, phone, snail mail address)

Note the general informality here. This wasn't crafted by a lawyer, nor was that necessary. All you need is a general idea of "where to dig".

The response from this mid-level official (4) in SF General broke the back of the Million Mom March as an effective organization (here slightly paraphrased for space):

1) Trauma Foundation occupies approximately 7,450 square feet of space. Do not know how much is occupied by MMM or Bell Campaign.

2) I don't have this information. You will need to inquire directly with the Foundation.

3) I don't have this information. You will need to inquire directly with the Foundation.

4) No lease with either organization.

5) I don't have this information. Please inquire directly with the Foundation.

What mattered was what the hospital did NOT know, and should have in order to be a proper caretaker of taxpayer funds. The hospital thought the space was being used by a medical charity called "Trauma Foundation", and had no clue what else inhabited their building.

We did a follow-up PRAR that netted a detail we should have tried for the first time around: the name of the "Trauma Foundation" contact person who the hospital knew of. That turned out to be an attorney name of Eric Gorovitz. Gorovitz's name was all over the tax statements for the other organizations Trauma Foundation had spun off, including "Bell Campaign" and "Million Mom March" - so we definitely had outright fraud going on versus a "mistake".

Within two months of filing the first PRAR, the MMM laid off 30 out of 35 of their staff and did a FAST move right out of SF General. They later merged with HCI due to no remaining funds or credibility.

And we scored a big PR win (5).

CASE HISTORY TWO: State Attorney General Shenanigans in Massachusetts

One of the functions of the MA AG's office is to craft "consumer protection product regulations". Normally, that means teddy bears with eyeballs that won't fall out and choke a toddler, but the uber-grabbers in that office came up with the idea of "regulating handgun safety".

The results of this "regulation" were insane: at first, the AG's office wouldn't even say what they considered "unsafe", but promised prosecution of anybody who sold a handgun that ended up declared "unsafe". So handgun sales were crippled for over a year, and then when the list finally came out, it was REAL short.

People within the NRA's state affiliate in MA (Gun Owners Action League) asked an important question: since the AG's office can do safety regulations, but cannot just randomly ban whatever they politically dislike, what sort of science, evidence or similar did they have to support the creation of these regulations?

GOAL filed an information request under MA state law that asked for all documents regarding the new regulations: memos, reports, evidence gathered, etc. They ended up wading through 24,000 pages of response documents. Among the treasures recovered (these are quotes from internal AG staff memos):

"Why is there absolutely nothing in this proposal that says anything about gun owner responsibility? Why are we blaming gun manufacturers for accidental deaths that are the responsibility of careless gun owners? Why are we doing this to small businesses?"

"For the past decade, cops have been arguing for more firepower in the face of high-powered automatics and assault weapons. We spent the last four months trying to pass an assault weapons bill? Now, we are suddenly claiming that Saturday night specials are the weapons of choice on the streets. Who is shitting (6) who here? Why don't we admit this is a publicity stunt?"

"What reliable statistics do we have on the presence and use of these handguns in Massachusetts? Who made up the stat about 3 of 5 being submitted for forensic tests? Do we know how many of these were sold in state last year? where someone was killed with a Saturday night special? Is there any statistical basis for this proposal regulation in Massachusetts or we (sic) just interested in pursuing feel good "historic" crap now?"

That was from just one memo. Others contained:

"We cannot tell anyone how many we think are available here, how many are sold legally or illegally each year, how many are used in the commission of crimes in Massachusetts, how many have blown up in someone's hands, etc."

"If we could just nail down some factual support for a ban - beyond general national numbers ginned up by gun control types - it would be a lot easier to swallow and a lot easier to sell."

"Right now, all Scott (7) will be able to say in defense of a ban is that "these guns are generally thought to maybe be poorly made and are used in a lot of crimes in Massachusetts, we think"."

The state AG staffers who wrote the above were concerned that the media would ask questions about the propriety of this entire affair. They underestimated the level of mainstream anti-self-defense media bias present today - until GOAL started poking around, all of this went unquestioned.

GOAL is formally asking Federal AG Ashcroft to investigate. It's in his purview, because the state AG is among other things the state's "top cop" and if he's gone rotten, Federal oversight is warranted.

You can see the 38-page report (from which the above quotes were taken) here:

http://www.goal.org/FRAUD.htm

This is still a developing situation; the report was published January of this year.

In a bizarre response, anti-gunners came up with a new proposed law (strongly supported by the current MA AG Tom Reilly) specifying that all work produced by state government attorneys would be hidden from public view (8).

In the case of work done for lawsuits, this makes some sense. But having given the state AG's office regulatory powers, it shouldn't apply to any such regulatory functions.

In other words, this is a direct response to GOAL's embarrassing digging.

"When you're taking flak, it's a good sign you're over the target zone!"

CASE HISTORY THREE: CCW analysis in California

In California, our state Supreme Court ruled back in 1986 that CCW records were to be made public, except for the applicant's street addresses, phone numbers, social security numbers and the like. The Public Records Act Request (PRAR) that I crafted had to explicitly cite that case.

This PRAR is unusual in that it also seeks to "educate" police departments. In most cases people in this state who live inside of towns get discriminated against by their Sheriff, due to illegal agreements between Sheriffs and Police Chiefs. So if you can convince the Police Chief to "exit the CCW biz", you give that town's residents better access to the Sheriff and greater odds of scoring CCW.

Since the agency in question MUST read the document request, you can sometimes make the information flow a two-way thing. Remember this: it's ALWAYS a two-way flow, therefore be careful. If there are other data sources to look at before letting the agency know you're digging, exhaust those first.

Here's the basic PRAR we're using in California:

PUBLIC RECORDS ACT REQUEST FOR CARRY CONCEALED WEAPONS DATA

RESPONDING AGENCY: _________[ed: write in department name here]_____

YOUR LEGAL REQUIREMENTS:

This is a request for records of application, denial, issuance and renewal for Carry Concealed Weapons permits issued pursuant to California Penal Codes 12050-54. The information we seek has been declared public record by the California Supreme Court in CBS vs. Block 1986, 42 Cal.3d 646. This judgment is viewable online at: http://www.ninehundred.com/~equalccw/cbsvblock.html

(This request is NOT intended to cover data for issuance of permits to retired law enforcement pursuant to Penal Code 12027.)

We believe that most of the records in question will be on paper, with the exception of any audiotape recordings of personal interviews of applicants as noted in request #4. If the records (other than audio data) are in microfiche or electronic form, we request paper copies of same unless you have a CD-Writer drive and can easy write the data out to it, in which case we'll provide blank media to record onto - please advise us at the contact numbers below if this is the case.

1) Please provide your department's current local procedures manual for issuance of CCW permits, plus your fee lists for all costs related to CCW. The policy manual is a document your agency is required to produce and make public pursuant to PC12050.2, which reads:

12050.2. Within three months of the effective date of the act adding this section (1/1/1999), each licensing authority shall publish and make available a written policy summarizing the provisions of subparagraphs (A) and (B) of paragraph (1) of subdivision (a) of Section 12050.

OR:

If your department is a municipal police agency and has chosen to declare the provision in Penal Code 12050(g) to be in effect, you can tell us that and that is the only piece of information we'll need of you; you can then ignore the rest of this request from item #2 on down. For your information, PC12050(g) at the very end of 12050 reads:

(g) Nothing in this article shall preclude the chief or other head of a municipal police department of any city from entering an agreement with the sheriff of the county in which the city is located for the sheriff to process all applications for licenses, renewals of licenses, and amendments to licenses, pursuant to this article.

We request the data for questions #2 through #9 below for every CCW transaction pursuant to PC12050-54 for the last____years [ed: 5 is a suggested write-in default except in unusual cases]:

2) Please provide the correct legal name of each issued, denied and pending applicant, and any aliases, maiden names, etc.

3) Please provide the dates of application, denial, issuance and/or renewal for each issued, denied or pending applicant.

4) Please provide the exact "good cause data" for each issued, denied and pending applicant - with specifics, attached letters containing "good cause details" written by the applicant, supporting data or evidence from the applicant, or any other records your agency used to determine the "good cause" and/or "good character" (or lack thereof) for each applicant. We will not accept a boilerplate phrase such as "For protection of life and property" as that has been held by the court to be specifically inadequate (CBS vs. Block 42 Cal.3d 646).

5) Please provide copies of any audiotape recordings of each issued, denied and pending applicant's personal interview with an agent of your department, as specified in Section 7 of the current state-standard CCW application form and process created by the State Attorney General's office in mid-'99.

6) Please provide the city of residence of each issued, denied and pending applicant. If the applicant lives outside the boundaries of an incorporated town, we need that noted.

7) If any issued applicant has had restrictions on the time, place or circumstances of carry, please list the details for each.

8) Please provide the full text of any agreement with any other law enforcement agency or jurisdiction regarding CCWs, particularly agreements between the Sheriff and any or all of the police departments and/or PD Chiefs in the county. Please provide copies of agreements with state agencies such as CHP, parks police, school/campus police departments, etc. relating to the issuance, approval process, training requirements and/or fees for CCW permits.

9) Please provide the name of any political, social and/or charitable organization whose membership holds more than 30% of the total CCW permits issued by your agency.

10) If this PRAR request is being answered by a Sheriff's department, please list the incorporated municipalities within the county that have local patrol contracts with the Sheriff's department.

Name of person or group requesting data:________________________________
Signature:______________________________________
Date of request:___/___/___ Contact phone (primary): (___)_____-___________
Secondary phone / fax / beeper (circle one) (___)_____-__________
Address:__________________________________________________________

This document is in many ways a "legal bludgeon". If it's possible to get a department to turn around with lesser measures, by all means carry out an educational campaign first.because this thing can make enemies.

We don't use it on CCW-friendly agencies.

When we get data back, we first analyze it for compliance with state law (Penal Codes 12050-54), starting with the policy manual.

The list of permitholders can be run against campaign contribution data. Campaign finance records for county officials are at the county seat (usually an elections board has the records for each candidate). The office of the Secretary of State has state-level records.

In counties with a high Latino population per census data, we compare the permitholder roster with the Hispanic permitholder rate (based on permitholders with obvious Latino surnames) to see if it's anywhere close to the Hispanic population rate. It's generally WAY off. Good stuff if you're interested in current patterns of racist gun control.

Then for real fun, we take the permitholders with the weakest "good cause for issuance" statements and we figure out who they are, who they're politically connected to, who they're related to, etc. That leads to all kinds of merriment, great stuff when you're looking for equal protection violations and grabber embarrassment.

Conclusions

Obviously, there's a lot of potential application for these tricks far beyond gun rights issues. Creativity and guts matters far more than a law degree.

When you dig up something neat, bring it to whoever leads your state's NRA affiliate, such as GOAL in MA, MCRGO in Michigan, the NRA Member's Council system in California. They'll best know how to help you exploit the dirt gathered, and somebody should be able to help you write up your findings if you're not up to it yourself.

I'll say this: it's FUN to fight back, and this is a dirt-cheap and highly effective way to do it.

Happy hunting!

Notes

1) The Calif PRAR is in Government Code 6250 through 6270 - see also http://www.leginfo.ca.gov for online Calif law.

2) The FOIA and it's variants cannot force the gov't to "create" documents or do research, so the game is to guess what documents exist. In all cases, they're responding "under oath" so if they say the documents don't exist, when they do, you can really nail 'em good in court later.

3) No way did they have a million "moms" in DC. Best guess based on aerial photos: 70,000 tops (of all genders and ages). Maybe another 20,000 in various other cities on the same day.

4) Carmen is a facilities manager at SF General.

5) We made the front page of the local paper (SF Examiner), see also: http://www.ninehundred.com/~equalccw/commiemommies.html - the Wall Street Journal's online "daily best of the web" cited the SF Examiner article, and NRA's First Freedom wrote it up in the July 2001 issue, page 42, "Million Moms March Off The Edge" by Bob Boatman.

6) No joke, this was in the original AG's office internal memo!

7) A reference to now-former MA Attorney General Scott Harshbarger.

Jim March (email) is a California gun rights activist.

Since this was written, he has filed suit against the California Department of Justice and Attorney General, for their failure to release CCW issuance data under the state Public Records Act. You can read about that case on his site, and all PayPal proceeds will finance that legal action and future cases.

His website at http://www.ninehundred.com/~equalccw contains some of the initial "fruits" of the CCW PRAR queries, under the "CCW Expose Project".

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