California Attorney General Issues New Confidentiality Rules


The California Department of Justice released a new confidentiality policy to determine when information on its contracts should be withheld from state records, after an Associated Press investigation found tens of millions of dollars of contracts were improperly shielded from public view.

“This policy change will absolutely ensure those things don’t happen again,” agency spokesman Nathan Barankin said on Monday.

The AP investigation found that information on scores of Justice Department contracts, many of them no-bid, was erroneously labeled “confidential” and omitted from computerized state records, cloaking it from public sight.

The hidden contracts included spending on lobbyists, consultants, legal firms – even courier services.

Current and former agency officials said the omissions were mistakes, and there was no attempt to intentionally hide spending or protect favored contractors from scrutiny. Since 2003, the department labeled “confidential” more than 1,700 contracts with individuals and companies, valued at over $100 million.

The new policy is intended to set more precise standards for imposing confidentiality, mirroring exemptions in state open-records laws.

It requires employees to provide a written explanation of why any information on contracts should be withheld from state computer data, and the recommendation must be approved by a supervisor, with advice from lawyers when needed.

Legitimate exemptions would include purchases of wiretapping and other surveillance equipment, legal advice in ongoing trials or information that would jeopardize security for officers.

The policy “creates a paper record and a bit of an administrative burden on secrecy, on confidentiality, which in a bureaucracy is a wonderful thing,” said Peter Scheer, executive director of the California First Amendment Coalition.

“The path of least resistance going forward will be to put things on the public record. The path of some resistance will be to withhold them. And that’s the way it should be,” Scheer said.

The issue of confidential contracts is expected to come up Thursday at a state Senate subcommittee meeting in Sacramento.

The contracts reviewed by AP were issued between 2003 and last year, when Bill Lockyer, a Democrat, was attorney general and headed the Justice Department. Jerry Brown now holds the job; Lockyer was elected state treasurer in November where he manages billions of dollars in state investments.

The confidential contracts were listed in the state’s main storehouse for tracking the spending, the State Contract Procurement Registration System. The massive database was created several years ago, in part to provide an open window into the way state government selects and pays billions of dollars to outside companies and individuals.

After initially refusing to disclose names of hidden contractors – the department said it would be too laborious to review so many – officials agreed to inspect a sample of 131 contracts. The finding: only 12 were correctly labeled confidential.

Some of the firms in the concealed contracts had ties to Lockyer; his spokesman has said there was “no bad intent.”

Scheer added that the department’s judgment of what is confidential might not be the last word, especially if contested in court.

“It’s an improvement, but it still depends on the skill of a person, not a computer, who is actually making these designations,” he said.

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