Richard McKee, First Amendment activist, has died (*updated)

Richard McKee, the quiet chemistry professor who smiled as he chewed through walls of government secrecy, has died. He was 62.

Details of his death are murky. What little I know comes from a post written by Emily Francke at Californians Aware, a statewide First Amendment watchdog group McKee helped start:

It is with deep regret and a very heavy heart that I must report that our dear friend and colleague, Rich McKee, suddenly passed away today, April 23, 2011. I have no further details at this time, but I will share what I can as it becomes known to me in the coming days and weeks. 

Rich was one of our greatest champions throughout the years, and we truly could not have done any of this without him. I hope you will join me in sending support and prayers to his family and friends as they learn to cope with this incredible loss.

McKee fought every day to ensure California lived up to a simple and obvious idea. He believed the public has a right to know what the government it elected is doing. This meant more than reporting out a final vote after a closed door meeting, it meant giving the public the same information a legislative body relied on to come to a decision - before the decision was made. It meant giving the public the right to speak before government officials made up their minds. It meant taking officials to task when they tried to skirt the fundamental sunshine laws of the state. Control freaks in City Halls and County buildings across California buckled at his passion, because he knew what he was talking about, he was never demagogic, and he always had law on his side.

It was a simple idea, and yet McKee spent more than a decade fighting nearly identical battles in city after city, county after county, as craven government officials decided it was easier to conceal than to reveal. The salary scandal in the City of Bell - the one that won the Los Angeles Times a Pulitzer - shows what happens when people like McKee are not around. He not only fought his battles, but he fought countless battles on behalf of people who did not know they had rights.

Indeed, I would say that every City Hall reporter in California who has ever requested sensitive documents or emails in the last 13 years has Richard McKee to thank - either because he offered the reporter free advice, or because he fought at the reporter's side in court when officials said no, or because he left behind a legacy of court decisions that made the reporter's job easier. I know from experience.

He was genuine, he was good, and will be missed.

*Updated 4/25: The Daily Breeze has more on McKee's death, including the fact that he died of natural causes. The story also has a comment from Terry Francke, head of Californians Aware and former general counsel at the California First Amendment Coalition:

McKee died of natural causes Saturday at his La Verne home, according to Los Angeles County Assistant Chief Coroner Ed Winter. An autopsy is pending. Family members did not immediately respond to requests for comment.

Francke described McKee as an outspoken and dedicated advocate for public participation in local government.

"He was a big guy in personality, in generousness and in enthusiasm for opening up government to public participation," Francke said. "He was very good humored and very gentlemanly. He was a skilled persuader."

McKee fought for public access to government records and documents and educated public officials in more than 100 cities across the state about open-meeting laws and the California Public Records Act. He filed nearly 30 lawsuits against public agencies in the last 16 years, winning the vast majority.

Four today

1. The ex-Orange Unified School District trustee at the heart of a court battle that left First Amendment activist Richard McKee with more than $80,000 of debt has been sentenced to two years probation and fined $200 for stealing a bottle of ketchup. AP

2. Former LA Daily News editorial page writer Paul Green has died. He was 50. Daily News (h/t LA Observed)

3. The Washington press corps has started to push back against the White House's use of background briefings to talk about routine policy matters ('background' generally means a reporter agrees not to name the source). Washington Post

4. If you'd forgotten that newspaper journalism is facing a crisis, Rem Rieder is here to remind you. AJR

Anti-anti-SLAPP legislation in Sacramento

The California Legislature might not be able to fix our multi billion-dollar budget deficit, but a bill authored by Sen. Leland Yee, D-San Francisco, would prevent courts from imposing debilitating penalties in good-government cases such as the one that saddled open-government activists Rich McKee and CalAware with tens of thousands of dollars of debt.

The legislation would bar government agencies from seeking repayment of attorney fees under the state's anti-SLAPP law when they are sued to produce public documents or to comply with public meeting requirements. Anti-SLAPP allows defendants to collect attorney fees when a court decides a case is without merit.

McKee and CalAware joined a lawsuit brought against Orange Unified School District for alleged violations of public meeting law. They lost the case and the court awarded the district more than $80,000 in attorney fees.

In his own words

I asked open-government activist Richard McKee to write a guest column explaining why he stood up in court to defend the public's right to hear what an "oddball" member of the Orange Unified School Board had to say at a public meeting. The court ruled against McKee, saying the school district had a right to censor the oddball, and slapped McKee with an $86,000 fine.

It's a case that should send a chill up every watchdog's spine.

Here's a portion of what he wrote (the entire column is here):

In essence, the court said a government agency can cut out any information from its publications that might cast it’s decisions in a bad light, and the agency can take any action it wants to discourage elected officials from criticizing administrative decisions.

America’s republican form of government – of, by, and for the people – presupposes that the public will be kept informed as to the issues its government faces and retains the right to instruct their representatives as to the best course of action.

When the courts endorse the government’s right to limit or control the information it provides to the public, they allow the government to control the outcome of decision-making (i.e., Iraq has weapons of mass destruction).

Justice Oliver Wendell Holmes first described the rational for protections meant to ensure an open marketplace of ideas: “The best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which [people’s] wishes safely can be carried out.”

By its opinion in Californians Aware v. Orange Unified School District..., the Fourth District Court of Appeals authorized school boards to distribute to the public: state test score summaries absent scores from under-performing schools, tapes of board meetings with all of the negative public comments deleted, and financial reports with evidence of any fraud removed.

The concern here is historically simple. Those holding power don’t always have our best interests at heart; and power is protected by controlling what information is released.

In a public forum, government speech should never trump individual speech rights. And government speech must never include the selective release of information meant to mislead the public.

Click here to read the entire column.

McKee in the LA Times

The Los Angeles Times had a story today about open-government advocate Richard McKee's big legal bill, leftover from a 2006 court decision that said he had to pay Orange Unified School District's attorney's fees after he sued them for censoring one of its board members.

A noteworthy new fact from the story: Orange Unified eliminated the seat held by the censored board member, Steve Rocco, when it redrew its political districts last year.

As to why he stood up for Rocco, McKee told the Times:

"Rocco certainly was an irritation. I was at the meetings, I saw his antics," he said. "At the same time, he was elected, and he had an obligation to express concerns about people who worked at Orange Unified and decisions they made, and that needed to be protected."

Free-speech bankruptcy bailout plan

Earlier this week, the Sacramento Bee editorialized against a troubling court ruling that has left a free-speech group and its former president, Richard McKee, saddled with $86,000 in legal bills and weakened California's free-speech protections.

The ruling, which the Bee called "Orwellian" and the state Supreme Court refused to review, essentially took a law designed to stop government agencies from using the courts to silence their critics and turned it into a tool government agencies could use to silence their critics.

Here's what McKee had to say about the bizarro ruling in the Inland Valley Daily Bulletin:

After prosecuting 14 other Public Records Act and Brown Act cases, McKee said he had never heard of the district using the right to free speech as a way to win a case.

The school district can take tapes of meetings and "chop it up, eliminate pieces, because of their right to free speech," McKee said. "Can you imagine how nice it is to control the information to the public? It's so ridiculous you don't know where to start."

The Bee has called for legislative reform to cure this ill, and McKee said that's exactly what he and Terry Francke of Californians Aware plan to do.

"We've kicked some ideas around and believe it could be as simple as changing the anti-SLAPP statute to preclude it from being used in a Brown Act case," McKee told me in an email. The Brown Act protects free speech at local government meetings and the anti-SLAPP law is the one designed to keep the same agencies from silencing critics by dragging them into an expensive lawsuit.

McKee and Francke are looking for a state lawmaker willing to carry the legislation.

Meantime, Francke has made a plea for financial help, since McKee has had to foot most of the $86,000 bill himself. I have already pledged to do my part, which involves subsidizing one of his favorite hobbies at the pub of his choosing.

Bankrupting free speech

The public's right to monitor its government is in trouble.

Open-government activist Richard McKee has waged a tireless battle to ensure government agencies do their work in the light of day. Over the last decade or so, the Pasadena City College chemistry professor worked to enforce California's Brown Act and Public Records Act with a gadfly's tenacity, but always with a goal of promoting the common good.

Never punitive, McKee always made an effort to reach out to recalcitrant government officials before resorting to lawsuits - the only mechanism by which the public can enforce these laws. McKee, who is not a lawyer, often ended up in court despite his best efforts. He drafted his own arguments and won far more cases than he lost.

I don't know of a newspaper in Southern California that hasn't benefited from McKee's work, either through his court victories or his free advice. Indeed, McKee often gave reporters just the boost they needed to get over the wall of obfuscation put up by government agencies trying to shield their corruption, or embarrassment, or plain bad decision-making.

Now Mckee finds himself on the hook for tens of thousands of dollars because of a wrongheaded court ruling that says he and advocacy group CalAware must pay Orange Unified School District's legal fees from a case they brought four years ago after the district censored one of its board members.

From CalAware founder Terry Francke:

This month ... California courts finalized an order that a small public interest non-profit group and its past president must pay nearly $86,000 for merely asking them to protect the public’s right to hear the opinions expressed by its local elected representatives.

-snip-

...McKee, whose wages have already been garnished by OUSD, and who has had a lien placed upon his home by the district, is left to scramble to come up with the remaining $80,000. He’s already paid $59,000 of it through a second trust deed on his home, depleted his savings, and is now taking another $16,000 from a tax shelter annuity. How he will come up with the remainder is uncertain.

Francke also makes an appeal for financial help:

To help Rich McKee stop the hemorrhage of his life savings to answer this liability and to help CalAware build its resources to fight for open government in the future, send a tax-deductible charitable gift check marked “Legal Defense Fund” to Californians Aware, 2218 Homewood Way, Carmichael, CA 95608, or contact Terry Francke by e-mail— info@calaware.org —or phone—(916) 487-7000.

Bray vs. LA Impact

The Metropolitan News-Enterprise is the first newspaper to talk to Chris Bray about his frustrations with the countywide narcotics task force LA Impact over its foot-dragging in complying with his public records requests. Bray - his latest missive to LA Impact attorney Christy O'Donnell is here - plans to file a complaint with the DA's public integrity division and threatened another lawsuit.

From the MNE story:

A former newspaper reporter who successfully sued to have a task force organized by Los Angeles County police chiefs to coordinate the battle against drug trafficking to open at least some of its meetings to the public over four years ago said yesterday he will ask District Attorney Steve Cooley’s Public Integrity Division to investigate the agency for further violations of the Ralph M. Brown Act.

Chris Bray, who once covered the Los Angeles Interagency Metropolitan Police Apprehension Crime Task Force for the Claremont Courier, also said he may file another lawsuit against the agency.

Bray and open-government activist Richard McKee of Californians Aware sued the agency, popularly known as LA IMPACT, for violating the Brown Act in 2004.

This district’s Court of Appeal ruled that the task force was subject to the act’s requirement that meetings be “open and public,” but Bray told the MetNews the organization is “playing a ridiculous game” to thwart his ability to obtain minutes and agendas from LA Impact Board of Directors meetings.

'I am not impressed by you'

In a letter that's just begging to become an exhibit in a court case, former reporter Chris Bray responds to the foot dragging of LA Impact attorney Christy O'Donnell in filling his request for some basic public records from the agency.

This might be the first time that the countywide narcotics task force has been asked to turn over public documents since Bray and government watchdog Richard McKee won a court order requiring LA Impact to come out of the shadows and comply with California's open-records and open-meetings laws.

Bray writes:

I requested public documents from your client, a public agency. State law gives public agencies ten days to respond to such requests. L.A. Impact received my request -- my second request, by the way -- on September 9, 2008 (see enclosed photocopy of U.S. Postal Service "Domestic Return Receipt," labeled as Document 1). Your letter of October 14 begins, "This letter will confirm our receipt of your correspondence, dated September 8, 2008..." (see enclosed photocopy of your October 14 letter, labeled as Document 2). No explanation for your delayed response follows. Should I wish to argue that L.A. Impact does not comply with the terms of the California Public Records Act, your own letter serves as the plainest evidence of that fact.

-snip-

[O]n Wednesday, October 15, 2008, we exchanged email in which I asked for an appointment this week to review public records at your client's office. You responded at 9:36 a.m. on that day that you would contact your client and arrange such an appointment for me. It is now 8:45 a.m. on Monday, October 20, and I have not heard from you. You had most of the day Wednesday, and all of Thursday and Friday, to arrange an appointment at a public agency to review simple public records that should be easily available.I am requesting an opportunity to review the recent agendas and minutes of a local legislative body, a set of records that any City Clerk in the state would instantly provide to me over the counter without an appointment. This is not hard.

I am not impressed by you. Do your job.

Any reporter who's faced a public agency's clumsy stonewalling will feel a tinge of recognition in reading the entire correspondence between Bray and O'Donnell.

The thin blue line of transparency

Way back when I wrote for newspapers, I reported on a narcotics task force formed by a group of L.A. County police chiefs called LA Impact. The police chiefs met in private to set policy for and distribute funds from task force investigations. Government watchdogs Richard McKee and Chris Bray said the police chiefs - who had expressed an interest in branching out from narcotics to domestic terrorism - had to meet in public. McKee and Bray took the cops to court and the court said the cops were breaking the law.

Flip the calendar forward a few years and Bray, who now teaches history at UCLA, got an itch to see if the police chiefs were still following the law. He sent the LA Impact governing board a letter requesting minutes from past meetings and notification of future meetings (which appear to be being held at the Greater Los Angeles County Vector Control District building in Santa Fe Springs). Such requests are routinely made of California's city councils and school boards and most comply. LA Impact's lawyers did their best to do the bare minimum.

Bray responds:

Thanks for your prompt reply to my request. I had hoped that LA Impact minutes and agendas were created and stored as Word files, or something similar, and could be emailed as attachments with very little cost or hassle to your client. But I would be happy to spend time in the LA Impact office instead, even if it is a substantial time commitment for us all. If I'll be required to travel to the office to read minutes every time there's a meeting of the Board of Directors, perhaps we can come up with a regular appointment time for those frequent visits. In the meantime, I'd like to schedule any morning next week after nine a.m. to review the requested minutes. I plan to read them carefully and methodically, so I may need to visit the LA Impact office quite a few times in the coming days.

Read all the letters the here.