The so-called Sunshine Amendment, written by State Senator John Burton (D-SF), would put the rights granted by California’s public records and open meetings laws in the state constitution.

More importantly, it would also shift the burden of proof in public record requests from the public and press, who currently have to demonstrate why they would benefit from access, to the government, which would have to prove why records should remain private. And it would require courts to show deference to the public by broadly interpreting state laws that grant access and narrowly interpreting those that limit access.

Several California laws provide for public access to government documents and meetings. The Ralph M. Brown Act of 1953 requires local government meetings to be open, the Bagley-Keene Open Meeting Act of 1967 requires state board and commission meetings to be open, and the California Public Records Act of 1968 grants citizens the right to copies of government documents.

But proponents of the Sunshine Amendment say Californians’ rights to government records and meetings have been chipped away over the years by legislative acts, executive orders, court decisions, and public officials’ refusals to hand over documents. The biggest problem, they say, is that when officials deny access, citizens’ only option is to sue, a measure few can afford. And when lawsuits are filed, courts often decide in favor of the government.

Enshrining the right to access government information in the California Constitution would make important strides toward correcting these problems, Proposition 59 proponents say. It would send a message to judges that Californians value government access, they say. “Prop 59 can be fairly seen as a set of instructions to judges, and the key instruction is that the obligation to disclose has to be interpreted broadly and the ability to withhold has to be interpreted narrowly,” said Peter Scheer, executive director of the California First Amendment Coalition.

If the Sunshine Amendment passes, “hopefully judges will be deciding these cases more often in favor” of the public and press, Scheer said. A constitutional right is given the most weight when compared with other laws, such as those that protect government privacy. When courts rule in favor of the person trying to access government documents, the government agency has to pay the plaintiff’s attorney’s fees.

The acts that grant access can easily be changed by a majority of the legislature, which has caused public access rights to be watered down over the last decade, said Scheer. “When they’re in the constitution, it’s very, very difficult to weaken these protections – the only way is by amending the state constitution,” he said. In addition, all new state laws and regulations would have to conform to the Sunshine Amendment.

Proponents say placing the issue on the state ballot will increase public awareness of the problem. “The reality is if people know about it because they’ve heard about it on an initiative, it receives substantially more attention,” said Thomas Burke, a First Amendment lawyer at Davis Wright Tremaine LLP and a media law instructor at the University of California, Berkeley Graduate School of Journalism.

As a result, citizens will be more confident and persistent in their efforts to obtain government documents, according to the Coalition for Open Government, a group of organizations that support Proposition 59 including the California First Amendment Coalition, the California Newspaper Publishers Association, and the League of Women Voters of California.

The proposition has one very significant loophole – when writing the amendment, the legislature excluded itself from those government bodies required to release records and open meetings. “It’s a terrible loophole, but unfortunately the legislature, which is very irresponsible in a whole lot of ways, exempts itself from every requirement you can think of,” Scheer said. Some proponents say the exemption was the only way to get the proposition on the ballot, and they hope future laws will apply the open government rules to the legislature.

The amendment faces no organized opposition. It passed unanimously in the state legislature. No major polls have covered Proposition 59, but most analysts believe it will do well at the ballot box. Even the writer of the official ballot argument in opposition to the proposition, Mountain View attorney Gary B. Wesley, is voting for it.

His argument, which he said he wrote in the spirit of voter education, said the proposition doesn’t go far enough toward opening government. “The question is whether you want to let the air out of the balloon for change by voting this in, because you’ll never get anything else. I will personally vote for it because I think it’s all we can get,” he said.

“The good news is the subject of access and representative government is the first one on the ballot, so hey, we’ve made some progress,” he said.