BILL NUMBER: AB 822 ENROLLED BILL TEXT PASSED THE ASSEMBLY AUGUST 31, 2002 PASSED THE SENATE AUGUST 30, 2002 AMENDED IN SENATE AUGUST 29, 2002 AMENDED IN SENATE AUGUST 20, 2002 AMENDED IN SENATE AUGUST 19, 2002 AMENDED IN SENATE JUNE 28, 2002 AMENDED IN ASSEMBLY MARCH 27, 2001 INTRODUCED BY Assembly Member Shelley (Principal coauthors: Senators Burton, Bowen, and McPherson) FEBRUARY 22, 2001 An act to amend Section 6259 of, and to add Sections 6253.3, 6257, and 6259.1 to, the Government Code, relating to public records. LEGISLATIVE COUNSEL'S DIGEST AB 822, Shelley. Public records: disclosure. (1) The California Public Records Act provides that except for exempt records, every state or local agency, upon request, shall make records available to any person upon payment of fees to cover costs. The act also requires each agency to determine within 10 days from the receipt of a request for records, whether the request, in whole or in part, seeks copies of disclosable public records in the possession of the agency and to promptly notify the person making the request of the determination and the reasons therefor. The act also authorizes any person to institute judicial proceedings for injunctive or declarative relief or writ of mandate to enforce his or her right to inspect or receive a copy of any public record and requires that the court award court costs and reasonable attorney fees to the plaintiff if he or she prevails in the litigation. This bill would require that written requests for inspection or copies of public records be directed to the head of each public agency or his or her designees or, in the case of multimembered bodies, to the executive officer, executive secretary, administrator, or similar chief executive pursuant to specified procedures. The bill would provide that any person who is notified of a denial of a request for public records may appeal to the Attorney General pursuant to specified procedures within 20 days of the date of denial and in cases where the agency fails to provide any response under these provisions. By creating new duties for local agency officials, the bill would impose a state-mandated local program. The bill would also require the Attorney General to issue a written decision within 20 working days of the date that the written request and written response or lack of response of the agency is received by the Attorney General and would provide that the time limit for the Attorney General to respond is directory and not mandatory. The bill would require the Attorney General to maintain copies of the opinions issued pursuant to these provisions, to publish the opinions annually in a special volume, and make them available on the Internet. The bill would also allow the superior court, in its discretion, to impose a fine on the agency of not more than $100, as specified, for each day that the agency's action resulted in the denial of the plaintiff's right to copy or inspect the record in question, not to exceed a total of $10,000, if the court finds that in declining to comply with a request to inspect or copy a record under the act, the agency acted in bad faith or with knowledge that the request sought nonexempt records. The bill would exempt the Public Utilities Commission from these provisions during the period that the commission is required to comply with statutory provisions relating to public review of commission decisions and appeal procedures. (2) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement, including the creation of a State Mandates Claims Fund to pay the costs of mandates that do not exceed $1,000,000 statewide and other procedures for claims whose statewide costs exceed $1,000,000. This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions. (3) This bill would become operative on July 1, 2003. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 6253.3 is added to the Government Code, to read: 6253.3. Except for a public agency governed by a multimembered body, written requests for inspection or copies of public records shall be directed to the head of each public agency, or agency officials designated by the agency head, who shall be directly responsible to the agency head for compliance with this chapter. In the case of agencies governed by multimembered bodies, written requests for inspection or copies of public records shall be addressed to the executive officer, executive secretary, administrator, or similar chief executive subject to direction of the body or agency officials designated by that officer who shall be directly responsible to the body for compliance with this chapter. The name and address of the officials designated under this section shall be made available to persons inquiring about procedures for requests under this chapter. In the event a written request is directed to a party other than the officials designated under this chapter, it shall be forwarded to the appropriate official immediately. Agencies may develop internal operating procedures to ensure that all staff are aware of the officials designated under this section and that requests under this chapter are acted upon promptly. These procedures shall be in addition to, and not in lieu of, guidelines adopted under Section 6253.4 and requirements adopted pursuant to subdivision (e) of Section 6253. SEC. 2. Section 6257 is added to the Government Code, to read: 6257. (a) A person may request the Attorney General to review a state or local agency's denial of a written request to inspect or receive a copy of a public record by delivering a copy of the request and the written response by the agency denying, in whole or in part, the request to the office of the Attorney General within 20 days of receipt of the agency's written denial. In the case of the failure of an agency to provide any response under Section 6253 to a public records request within the time limits specified by this chapter, the person may seek review by the Attorney General by providing a copy of the request and the circumstances under which it was sent to the agency no less than 20 days and no more than 40 days after the request was delivered or mailed to the agency. The Attorney General may grant relief from the 40-day time limit upon a showing by the person seeking relief that he or she refrained from requesting review within the 40-day time limit because the person reasonably relied upon representations of the agency that a response would be forthcoming. The person seeking review shall demonstrate by means of written proof of service or other credible and reliable means that a copy of his or her request for review has been delivered to the denying agency. Within 20 working days of receipt of the request for review that complies with the requirements of this subdivision, the Attorney General shall issue a written opinion stating whether the agency's response or lack of response complied with provisions of this chapter. (b) For good cause, the Attorney General may extend by 30 working days the time to issue an opinion under this section by sending written notice to the complaining party and a copy to the denying agency stating the reasons for the extension and the day on which a decision is expected to be issued. As used in this section, "good cause" means any of the following: (1) The need to obtain additional information from the agency or the requester. (2) The need to conduct research on issues of first impression. (3) An unmanageable workload. (4) Unanticipated absence of staff assigned to a particular request, or similar unavoidable circumstance. (c) The Attorney General may solicit additional information or explanation from the denying agency, including copies of the records claimed to be exempt, or a detailed explanation of the content of the information in those records. The denying agency may, within 10 working days from the date of receipt of the request pursuant to subdivision (a), submit any additional information or explanation it deems relevant. However, the records or other information for which an exemption is claimed shall not be provided except in response to a request by the Attorney General and shall not be disclosed by the Attorney General. The Attorney General shall return or destroy nondisclosable records received under this subdivision upon completion of the review and shall not use the records for any other purpose. The agency need not provide records or information but failure to do so without adequate justification under the circumstances of the case may be considered in assessing the sufficiency of the agency's written denial under review. (d) If the Attorney General or the Department of Justice is the agency that is the subject of the public records request, the request for review under this section shall be treated as a request for reconsideration and, where possible, shall be reviewed by members of the Attorney General's office not involved in the original decision. (e) Upon completion of the opinion pursuant to this section, the Attorney General shall immediately mail a copy of it to the person requesting review and to the state or local agency that denied access to the record in question. (f) The Attorney General shall maintain copies of opinions issued pursuant to this section at each of his or her legal offices for purposes of public inspection. The Attorney General shall cause to be published annually a special volume of opinions issued under this section and shall make the opinions available on the Internet. The Attorney General may charge a fee for the sale of the volumes not to exceed the reasonable cost of publication and distribution. (g) Notwithstanding any other provision of law, except where the records of the Attorney General or the Department of Justice are at issue, neither the Attorney General, nor the Department of Justice, nor any of its staff shall be subject to suit or to discovery in any suit for any action taken as a result of review under this section. (h) An opinion issued under this section does not affect the right of a person to enforce his or her right to inspect or to receive a copy of any public record through an action pursuant to Sections 6258 and 6259. A person shall not be required to exhaust the administrative remedies available in this section prior to filing a legal action. If a person elects to bring an action under Sections 6258 and 6259, the Attorney General shall not proceed under this section. If a person elects to seek review under this section, no legal action may be brought against the agency whose decision is the subject of the opinion until 10 days after the issuance and mailing of the opinion. A person may withdraw, by written notice, his or her request for review under this section if the withdrawal notice is received by the Attorney General prior to the issuance of an opinion. (i) (1) Representation of a state agency by the Attorney General involving advice as to a request for inspection or copies of public records may provide a basis for that agency to claim an attorney-client relationship that would preclude the Attorney General from providing an opinion under this section regarding that request. (2) A state agency against which an action is brought pursuant to Sections 6258 and 6259, after a receipt of an adverse opinion under this section, is authorized to retain counsel, other than the Attorney General, who shall be compensated at the same rate that the Attorney General would charge for legal services for the defense of that action. (3) Except as provided in this section, the Attorney General's review under this section does not preclude the Attorney General's representation of the affected state agency on any matter. (j) The time limits for the Attorney General to respond pursuant to subdivisions (a) and (b) are directory not mandatory. (k) This section shall not apply to a request for public records made to a state agency by a party to a pending proceeding involving the state agency or an employee of the state agency, or a pending investigation by the state agency, if the Attorney General has provided or is providing legal advice or representation to the state agency with regard to the proceeding or investigation. SEC. 3. Section 6259 of the Government Code is amended to read: 6259. (a) Whenever it is made to appear by verified petition to the superior court of the county where the records or some part thereof are situated that certain public records are being improperly withheld from a member of the public, the court shall order the officer or person charged with withholding the records to disclose the public record or show cause why he or she should not do so. The court shall decide the case after examining the record in camera, if permitted by subdivision (b) of Section 915 of the Evidence Code, papers filed by the parties and any oral argument and additional evidence as the court may allow. (b) If the court finds that the public official's decision to refuse disclosure is not justified under Section 6254 or 6255, he or she shall order the public official to make the record public. If the judge determines that the public official was justified in refusing to make the record public, he or she shall return the item to the public official without disclosing its content with an order supporting the decision refusing disclosure. (c) In an action filed on or after January 1, 1991, an order of the court, either directing disclosure by a public official or supporting the decision of the public official refusing disclosure, is not a final judgment or order within the meaning of Section 904.1 of the Code of Civil Procedure from which an appeal may be taken, but shall be immediately reviewable by petition to the appellate court for the issuance of an extraordinary writ. Upon entry of any order pursuant to this section, a party shall, in order to obtain review of the order, file a petition within 20 days after service upon him or her of a written notice of entry of the order, or within such further time not exceeding an additional 20 days as the trial court may for good cause allow. If the notice is served by mail, the period within which to file the petition shall be increased by five days. A stay of an order or judgment shall not be granted unless the petitioning party demonstrates it will otherwise sustain irreparable damage and probable success on the merits. Any person who fails to obey the order of the court shall be cited to show cause why he or she is not in contempt of court. (d) The court shall award court costs and reasonable attorney fees to the plaintiff should the plaintiff prevail in litigation filed pursuant to this section. The costs and fees shall be paid by the public agency of which the public official is a member or employee and shall not become a personal liability of the public official. If the court finds that the plaintiff's case is clearly frivolous, it shall award court costs and reasonable attorney fees to the public agency. (e) If an agency declines to comply with a request to inspect or copy a record requested pursuant to this chapter and the court determines that the agency acted in bad faith or with knowledge that the request sought nonexempt records, the court, in its discretion, may make an award not to exceed one hundred dollars ($100) per day, for each day, as determined by the court, that the agency's action resulted in the denial of the plaintiff's right to copy or inspect the record or records in question. If the plaintiff first sought review of the public agency's denial of a written request pursuant to Section 6257 before seeking a court review pursuant to this section, 50 percent of an award made pursuant to this subdivision shall be paid to the plaintiff and the other 50 percent shall be paid into the General Fund. In determining the amount of an award under this subdivision, the court shall consider all facts and circumstances surrounding the agency's decision, including, but not limited to, the following factors: (1) Whether the agency unreasonably failed to respond within the time periods set forth in Section 6253 or otherwise engaged in conduct that caused undue delay. (2) Whether the agency's justification for denying the request was reasonably based upon its perceived obligation to protect the rights of persons or entities identified in the requested records. (3) Whether the agency has developed publicly accessible internal operating procedures under Section 6253.3 or guidelines under Section 6253.4. (4) Whether the agency's denial was based on a reasonable interpretation of the law. (5) Whether the plaintiff acted in good faith in pursuing the request. (f) An award pursuant to this section shall not exceed a total of ten thousand dollars ($10,000) for the record or records in question, and an award shall not include the period of time that a request for an opinion is pending with the Attorney General pursuant to Section 6257 or the period of time that a court is considering the plaintiff' s petition. SEC. 4. Section 6259.1 is added to the Government Code, to read: 6259.1. Notwithstanding Sections 6253.3 and 6257, and subdivision (e) of Section 6259, the Public Utilities Commission shall not be in violation of these sections for nondisclosure of documents for any time period during which the commission is required to comply with statutory provisions relating to public review of commission decisions and appeal procedures. SEC. 5. It is the intent of the Legislature that an opinion of the Attorney General issued pursuant to Section 6257 of the Government Code shall be given no greater deference than any other opinion of the Attorney General. SEC. 6. This act shall become operative on July 1, 2003. SEC. 7. Notwithstanding Section 17610 of the Government Code, if the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code. If the statewide cost of the claim for reimbursement does not exceed one million dollars ($1,000,000), reimbursement shall be made from the State Mandates Claims Fund.