Wednesday, March 09, 2005

Francke Statement

The following remarks were prepared by Terry Francke, general counsel for Californians Aware, to be presented at today's California Legislative hearing into the state stem cell agency.

“Thank you for sharing with me the March 1 letter from Bruce Alberts, president of the National Academy of Sciences (NAS) to Robert N. Klein II, Chairman of the Independent Citizens Oversight Committee (ICOC) of the California Institute for Regenerative Medicine (CIRM). “The letter explains the transparency rules governing NAS advisory committee meetings and records, and will, I gather, be presented as support for the ICOC’s apparent intention not to open to the public meetings of the Working Goups advising the ICOC. “There are several reasons why the NAS committee policies in this regard are not good models for those that should govern the Working Groups. “The NAS and the Federal Advisory Committee Act The NAS was incorporated by an act of Congress during the Civil War and charged, “whenever called upon by any department of the Government, (to) investigate, examine, experiment, and report upon any subject of science or art…” As noted on the NAS web site,
'Over the years, the National Academy of Sciences has broadened its services to the government. During World War I it became apparent that the limited membership -- then numbering only about 150 -- could not keep up with the volume of requests for advice regarding military preparedness. In 1916 the Academy established the National Research Council at the request of President Wilson to recruit specialists from the larger scientific and technological communities to participate in that work. 'Recognizing the value of scientific advice to the nation in times of peace as well as war, Wilson issued an executive order at the close of World War I asking the Academy of perpetuate the National Research Council. Subsequent executive orders, by President Eisenhower in 1956 and President Bush in 1993, have affirmed the importance of the National Research Council and further broadened its charter. 'Under the authority of its charter, the National Academy of Sciences established the National Academy of Engineering in 1964 and the Institute of Medicine in 1970. Much like the National Academy of Sciences, each of these organizations consists of members elected by peers in recognition of distinguished achievement in their respective fields. The National Academy of Sciences includes about 1,800 members, the National Academy of Engineering about 1,900, and the Institute of Medicine about 1,200. All three organizations also elect foreign associates.'
“The Federal Advisory Committee Act was passed in 1972 and for the next 25 years required that all meetings of a defined federal “advisory committee” be open to the public. The definition encompassed
'any committee, board, commission, council, conference, panel, task force, or other similar group, or any subcommittee or other subgroup thereof…which is – (A) established by statute or reorganization plan, or (B) established or utilized by the President, or (C) established or utilized by one or more agencies, in the interest of obtaining advice or recommendations for the President or one or more agencies or officers of the Federal Government except that such term excludes (i) the Advisory Commission on Intergovernmental Relations, (ii) the Commission on Government Procurement, and (iii) any committee which is composed wholly of full-time officers or employees of the Federal Government.'
“(5 U.S.C. App. §3) “In Animal Legal Defense Fund v. Shalala, 104 F.3d 424 (D.C. Cir.), cert. denied, 118 S. Ct. 367 (1997), the U.S. Court of Appeals for the District of Columbia Circuit held that under the “established or utilized by one or more agencies” criterion, an advisory committee of the NAS that developed standards for animal experimentation for various federal agencies was subject to the FACA open meeting requirement. Toward the end of that year, a bill was introduced in the House and, thanks to rule suspensions in that body and unanimous consent in the Senate, was on the President’s desk within 30 days, to be signed into law on December 17. “In other words, the exemption from the FACA’s open meeting requirements that NAS advisory committees were granted for their deliberative sessions was itself achieved without hearings or deliberation. Whatever merit such an exemption may have as a model for California is therefore still, needless to say, open to debate. The only clue I have been able to find to the justification that would have been openly offered to the Congress had there been hearings and debate is in the November 5 statement of G. Martin Wagner, Associate Administrator of the General Services Administration, to the Subcommittee on Government Management, Information and Technology of the House Committee on Government Reform and Oversight. His statement (full text at makes it apparent that the NAS quarrel with the Animal Legal Defense Fund holding was principally that it extended FACA to NAS committee work operating under contract with federal agencies, even though NAS was only “quasi-public” and was “not subject to actual management and control by such agencies…” A proposed amendment turning on that distinction was abandoned in favor of the actual bill, introduced just two days later, which instead specifically gave NAS its express exemption. “The Deliberative Process Privilege “What rationale there is for the exemption is stated in Dr. Alberts’ letter: “Committee meetings that are not data-gathering committee meetings are not open to the public in order to protect the committee deliberative process.” In California law, the integrity of the deliberative process of the executive has been recognized by the California Supreme Court as one consideration to be weighed in the balance in determining whether records of the Governor’s office showing with whom the Governor met must be disclosed under the California Public Records Act. The high court resolved this question against disclosure in Times Mirror Co. v. Superior Court of Sacramento County, 53 Cal. 3d 1325 (1991), and since then two cases from the Court of Appeal have done likewise concerning records showing who has applied to be named by the Governor to fill vacancies on county boards of supervisors (Wilson v. Superior Court, 51 Cal.App.4th 1136(1996); California First Amendment Coalition v. Superior Court of Sacramento County, 67 Cal.App.4th 159(1998)). Only one case has applied what has come to be called the “deliberative process privilege” to a multi-member deliberative body, i.e. a city council, and in that case the issue was access to records of phone numbers called by council members over the period of a year (Rogers v. Superior Court of Los Angeles County, 19 Cal. App. 4th 469 (1993)). “Otherwise, California law on access to meetings of decision-making and advisory bodies in the legislative and executive branches of state and local government is uniformly contrary to the notion of a deliberative process privilege justifying exclusion of the public. The constitutional provisions requiring open meetings of the Legislature’s houses and committees acknowledge no such exemption from openness, nor do the Bagley-Keene Open Meetings Act governing state bodies generally, the provisions of that act applicable to the Board of Regents of the University of California, the Romero Act applicable to meetings of California State University student organizations, and the most thoroughly amended, litigated and interpreted statute of them all, the Ralph M. Brown Act, applicable to boards, councils, commissions and the advisory bodies thereto in local government. “This rejection of secrecy in the deliberative process has been resoundingly reinforced in the November 2 voter approval, by an 83.4 percent margin, of Proposition 59, amending the California Constitution to give citizens a fundamental right of access to “the meetings of public bodies.” The ballot argument for Prop 59 states, in part:
'What will Proposition 59 do? It will create a new civil right: a constitutional right to know what the government is doing, why it is doing it, and how. It will ensure that public agencies, officials, and courts broadly apply laws that promote public knowledge. It will compel them to narrowly apply laws that limit openness in government—including discretionary privileges and exemptions that are routinely invoked even when there is no need for secrecy. It will create a high hurdle for restrictions on your right to information, requiring a clear demonstration of the need for any new limitation. It will permit the courts to limit or eliminate laws that don't clear that hurdle. It will allow the public to see and understand the deliberative process through which decisions are made. It will put the burden on the government to show there is a real and legitimate need for secrecy before it denies you information. (Emphasis added)'
“In summary: “The exemption from the open meeting requirements of the Federal Advisory Committee Act granted by the Congress to the National Academy of Sciences in 1997 was achieved in extraordinary haste without public hearings or debate. There is no record of legislative intent or rationale. “The purpose of the exemption as articulated by NAS President Bruce Alberts —“ to protect the committee deliberative process”—is utterly alien to California law on meetings of official bodies. “California voters have overwhelmingly endorsed a constitutional principle to the contrary—underscoring their right “to see and understand the deliberative process through which decisions are made.” “Finally, if any argument were needed as to why the ICOC’s Working Groups are especially needful of public monitoring, it is the fact that the CIRM is otherwise so extraordinarily insulated from Legislative control and correction. The only oversight of the CIRM in its foundational years is provided by the ICOC. Since the task of the Working Groups is to present the ICOC with recommended standards and policies, and enforcement actions supporting them, the Working Groups should be as transparent as any committees of the Legislature.”

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