Fresno City Council rule on confidential information disclosure is a bad idea

What a bad idea: to criminalize a third party’s disclosure of confidential information he or she received from a city official or employee. That is what a newly adopted city of Fresno ordinance does.

The anti-disclosure ordinance was sponsored by Mayor Lee Brand and Councilmen Mike Karbassi and Gary Bredefeld, normally voices of reason on the council. After public protest erupted over the original wording, Karbassi wisely attempted to revise it so it would apply only to the source of a “leak,” not to a third party. But Karbassi didn’t succeed, because the revised ordinance still criminalizes “any person,” and not just “City officials and employees,” who commit the prohibited act.

Fresno’s city attorney had provided council members, for “background,” copies of the anti-disclosure ordinances of the cities of San Francisco and Oakland. Some might consider them dubious role models, but even they criminalize only city officers or employees who leak confidential information, not third parties who merely receive and pass it on. Criminalization is not the norm, however, and the usual penalty for city employees who “leak” is some form of sanction, including termination.

Protests to adoption of the measure were largely framed as freedom of the press issues, but the threat runs deeper. The ordinance, for example, makes it a crime for one to repeat, at a cocktail party, confidential information he or she received from a city official or employee.

Anti-disclosure ordinances are akin to what attorneys call “gag orders,” where a judge prohibits parties to a court action from making public statements about it. The rationale is that the right to a fair trial trumps the right of free speech. But “gag” orders are sometimes unlawful, even though issued by a judge.

Some years ago, I experienced such an order. As district attorney of a neighboring county, I had terminated a deputy, and a contested civil service hearing was pending. The presiding judge, who supported the deputy, prevailed upon a visiting judge to order his bailiff to search my office, and to seize the deputy’s personnel file. The written order also prohibited me from disclosing its existence, or the fact of the search, to anyone, under threat of contempt. The order was clearly unlawful. As soon as the bailiff finished his search, I called the local newspaper. It ran the story, and the judge, knowing his order was unlawful, never held me in contempt.

So there are times when disclosing confidential information is warranted, even when prohibited. “Whistleblowers” are currently in vogue, either celebrated or reviled according to whose ox is being gored. Accordingly, the new Fresno city ordinance, as revised, includes a “whistleblower protection” clause. It allows a city official or employee, upon a good-faith belief that the law has been violated, to disclose confidential information to a law enforcement agency.

Section 2-319 of the Fresno Municipal Code now criminalizes Fresno City official and employee “leakers,” unless they come within the whistleblower protection clause. That’s permissible, though some may consider it an overkill. But the ordinance still criminalizes third parties who merely repeat what a leaker has told them. And that is not just a bad idea, it is just plain unlawful.

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This story was originally published November 15, 2019 at 11:00 AM with the headline "Fresno City Council rule on confidential information disclosure is a bad idea."