BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Joseph L. Dunn, Chair
2005-2006 Regular Session
AB 2927 A
Assembly Member Leno B
As Amended August 7, 2006
Hearing Date: August 8, 2006 2
Government Code 9
AMT:rm 2
7
SUBJECT
Public Records
DESCRIPTION
This bill would establish a procedure for seeking review by
the Attorney General (AG) when a public agency denies or
fails to timely grant a written request for a record under
the Public Records Act (PRA). The AG would issue a written
decision, and mail its decisions to the parties. The AG
would also keep copies for public inspection, publish an
annual volume of decisions, and make decisions available on
the Internet. To resolve conflict-of-interest questions,
the bill would: (1) permit a state agency to claim an
attorney-client relationship if the AG has previously
advised the agency regarding the application of the PRA to
a public record; (2) preclude the AG from issuing an
opinion on a PRA request made by a party to a pending
proceeding if the AG has provided or is providing legal
advice or representation to the state agency in that
proceeding; and (3) permit a state agency to retain legal
counsel other than the AG for further defense of any action
that is the subject of an adverse opinion by the AG. A
person would not be required to exhaust this AG review
process before seeking a court order on a PRA denial, but a
court petition could not be submitted while a request for
AG review was still pending.
The bill would also permit, in situations where a plaintiff
has successfully sued for enforcement of the PRA, a court
award to a plaintiff of up to $100 for each day that the
(more)
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plaintiff was not permitted to access the public record, up
to a total of $10,000, if the court finds the agency took
the following actions in bad faith or with the knowledge
that the requested record was not exempt from disclosure
under the PRA: (1) failed to comply with the request; (2)
delayed in responding or in producing the record either
without reason, for a reason unsupported by compelling
circumstances, or for a reason that demonstrated a lack of
diligence; (3) imposed an unauthorized condition precedent
to access; or (4) otherwise frustrated timely and complete
access to the record. The bill would list a number of
issues to be considered by the court in determining the
amount of any monetary award.
This bill would also place new Internet posting
requirements on state agencies that have Internet Web
sites, effective January 1, 2008. Agencies would be
required to post contact information for the person
responsible for responding to PRA or other information
requests and, where available or mandated, existing written
guidelines for requesting public records from the agency.
Agencies would also be required to host an online form that
could be used to submit an electronic request seeking
access to, or information regarding, a public record.
Other Internet posting requirements in the bill would be
deleted by author's amendments to be offered in committee.
Pursuant to author's amendments to be offered in committee,
the bill would also require the appointment of a task force
to consider questions regarding the public value,
cost-effectiveness, and security associated with a
potential requirement that state agencies automatically
post PRA requests and denials and/or specified public
records on their Internet Web sites.
[This analysis reflects author's amendments to be offered
in committee.]
BACKGROUND
In 1999, this Legislature approved SB 48 (Sher) to permit
members of the public to seek written review from the AG
when a public records request was denied, and to permit a
court to issue a monetary award to a plaintiff when a
public agency declined to comply with a PRA request either
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in bad faith or with knowledge that the record was not
exempt from disclosure under the PRA. The bill was vetoed
by Governor Davis on the basis that the AG review provision
did not address the potential for conflicts of interest
between the AG and state agencies.
The Legislature then approved SB 2027 (Sher) in 2000 with
largely the same provisions, but with the addition of new
provisions to address the conflict of interest question
raised in the veto message for SB 48 (Sher, 1999).
Governor Davis also vetoed this bill, this time citing the
potential costs. In his veto message, he directed the
Secretary of State and Consumer Affairs to review state
agencies' compliance with the PRA and make recommendations
on appropriate procedures to ensure a timely response.
In 2002, the Legislature again approved a bill with largely
the same provisions, this time modifying the bill to
address the cost question by designating half of any
monetary awards under the bill for deposit in the General
Fund. [ See AB 822 (Shelley, 2002).] Governor Davis vetoed
this bill as well, stating that the performance review
conducted by the Secretary of State and Consumer Affairs
had found that state agencies were giving timely responses
to PRA requests, and that there was very little litigation
challenging agencies' responses. He further directed
various parties to implement recommendations for
establishing uniform guidelines for reviewing PRA requests
and providing updated training materials.
In January 2006, the bill's sponsor, Californians Aware
(CalAware), conducted a performance audit regarding the
compliance of state agencies, boards, and commissions with
the requirements of the PRA. The author states that this
audit revealed an average score of "F" for the state
agencies that were audited. Of the 31 agencies audited,
CalAware states that 90 percent failed to post written
guidelines for making public records requests, two-thirds
did not provide a copy of their written guidelines at their
main offices when a visitor requested a copy, more than
half failed to provide a copy of the requested record
within the ten-day statutory deadline, and some of those
that timely complied charged an improper fee. CalAware
also notes that employees at 71 percent of the audited
agencies asked the requestor, in violation of the PRA, to
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state his or her name, who he or she was working for, or
why he or she was requesting the information.
According to the author, Governor Schwarzenegger responded
to the CalAware audit by issuing Executive Order S-03-06 on
March 29, 2006, which required state agencies, boards, and
commissions to review and post PRA request guidelines in a
conspicuous public place at all office locations, to
identify and designate staff to handle PRA requests, and to
ensure appropriate training of designated staff on the
rudiments of the PRA. The sponsor indicates the Executive
Order was implemented in April of this year, but a
representative informs committee staff that a recent
informal poll of agency staff who attended new training
sessions revealed that many staff members remained
uninformed or misinformed about key elements of the PRA.
In this bill, the author seeks to reintroduce the
enforcement and review provisions previously contained in
SB 48 (Sher, 1999), SB 2027 (Sher, 2000), and AB 822
(Shelley, 2002), arguing that the recent CalAware
performance audit demonstrates that agency compliance with
the PRA under existing legal restrictions and requirements
is inadequate. The author also seeks to "bring the [PRA]
into the 21st century" by requiring the posting of
specified PRA request information on agency Web sites.
CHANGES TO EXISTING LAW
1.Existing law , the Public Records Act (PRA), declares that
access to information concerning the conduct of the
people's business is a fundamental and necessary right of
every person in this state, and grants every person the
right to inspect any public record unless the record is
exempted from disclosure under the PRA. [Gov. Code
6250, 6253(a).]
Existing law requires an agency to determine within ten
days of receiving a PRA request whether the request seeks
a disclosable public record, and to promptly notify the
requestor of the determination and the reasons therefore.
[Gov. Code 6253(c).]
Existing law requires an agency to justify any
withholding of a record sought under the PRA by
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demonstrating either that the record is exempt from
disclosure or that "on the facts of the particular case
the public interest served by not disclosing the record
clearly outweighs the public interest served by
disclosure of the record." [Gov. Code 6255(a).] If a
request is in writing, any denial of the request must
also be in writing. [Gov. Code 6255(b).]
Existing law permits any person to institute court
proceedings for injunctive or declaratory relief or a
writ of mandate to enforce a right to inspect or receive
a copy of a public record or class of records. [Gov.
Code 6258.]
Existing law requires courts to order a public official
to make a public record public if the court determines
that the withholding of the record was not justified
under the PRA. [Gov. Code 6259(a)-(b).] A plaintiff
who prevails in seeking a court order to make a record
public is entitled to court costs and reasonable
attorney's fees. [Gov. Code 6259(d).]
This bill would establish an optional, intermediate
procedure through which a member of the public may seek
review by the Attorney General (AG) of an agency's
failure to grant a written request for a public record
under the PRA, as follows:
A request for review would have to be submitted to
the AG within 20 days of an agency denial of a PRA
request, or within 40 days of the plaintiff's
submission of the request if the agency did not
respond.
The AG would be required to issue a written opinion
within 20 days of receiving a request for review,
stating whether the agency's denial of or lack of
response to the PRA request was in compliance with the
PRA, unless the AG extended the time for review by 30
days for "good cause." These time limits would be
directory, not mandatory. A request for review of a
denial by the AG would be treated as a request for
reconsideration and would, if possible, be reviewed by
members of the AG's office not involved in the
original denial.
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The AG would not be permitted to issue an opinion
if the PRA request was made to a state agency by a
party to a pending proceeding involving the agency or
an employee of the agency, or a party to a pending
investigation by the agency, and the AG has provided
or is providing legal advice or representation to the
state agency with regard to the proceeding or
investigation.
A state agency could claim an attorney-client
relationship with the AG and seek to preclude the AG
from issuing an opinion if the agency previously
received advice from the AG regarding the application
of the PRA to public records.
Upon issuing an opinion, the AG would be required
to: (1) mail copies to the person requesting review
and the agency that denied access to the record; (2)
keep copies of the opinions in AG offices for public
inspection; (3) annually publish a special volume of
such opinions; and (4) make the opinions available on
the Internet. The AG could charge a fee for the sale
of special volumes to cover the costs of publication
and distribution.
Although a person would not be required to seek AG
review before instituting court proceedings, a person
who sought AG review could not file a court action
until either ten days after the issuance of the AG
opinion or until he or she had withdrawn the AG review
request.
A state agency that received an adverse opinion
from the AG would be permitted to retain counsel other
than the AG for any further defense of that action,
and would compensate that retained counsel at the same
rate the AG would charge for the same legal services.
The AG's representation of the agency on any other
matter would not be affected.
Neither the AG, the Department of Justice (DOJ),
nor any staff would be subject to suit or discovery
for actions taken as a result of this review, except
where AG or DOJ records are at issue.
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This bill would permit a court, in its discretion, to
award up to $100 for each day that a state or local
agency's action resulted in the denial of a plaintiff's
right to copy or inspect a public record (up to a total
award of $10,000) if the state or local agency did any of
the following in bad faith or with knowledge that the PRA
request sought a disclosable record:
Declined to comply with a request for a disclosable
public record;
Delayed in responding to a request seeking a
disclosable public record, or in producing that
record: (1) without stating the reason to the
requestor; (2) for reasons not supported by compelling
circumstances; or (3) for reasons that demonstrate a
lack of diligence in making the records available
promptly, without delay or obstruction;
Imposed a condition precedent to access to a
disclosable public record that is not authorized by
the PRA, such as requiring excessive copying fees; or
Otherwise frustrated timely and complete access to
the record.
This bill would require a court, in determining the
amount of a monetary award under this section, to
consider the following:
Whether the agency unreasonably failed to respond
within specified time periods, or otherwise caused an
undue delay;
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 records;
Whether the agency developed publicly accessible
internal operating procedures or guidelines, as
required under the PRA;
Whether the plaintiff pursued the request in good
faith; and
Whether the agency's conduct is inconsistent with
the PRA based on a reasonable interpretation of the
law.
1.Existing law requires any agency that has public records
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in an electronic format to make those records available
in an electronic format when requested by any person, so
long as the records are not exempt from disclosure under
the PRA. [Gov. Code 6253.9(a).] However, an agency
need not release the record in electronic format if the
release would jeopardize or compromise the security or
integrity of the original record or the proprietary
software on which the record is maintained. [Gov. Code
6253.9(b)(f).]
Existing law states that every agency may adopt
regulations stating the procedures to be followed when
making its records available in accordance with the PRA.
Specified agencies are required to establish written
guidelines for accessibility of records, post a copy of
these guidelines in a conspicuous public place at their
offices, and make a copy of the guidelines available upon
request free of charge. [Gov. Code 6253.4(a).]
This bill would require every state agency that hosts an
Internet Web site to include on its homepage, prominently
displayed without scrolling, the words "Public
Information Center," which shall be followed by, or shall
link to, on another page, all of the following:
Under the words "Whom to Contact," the title,
mailing address, telephone number, and e-mail address
of the public information officer or other person to
whom requests for inspection or copying of records
pursuant to the PRA, or informal requests for simple
factual information, should be directed.
Under the words "How to Request Records," any
written guidelines authorized or required under
Government Code 6253.4(a), and an HTML form for
submitting online requests for public records under
the PRA. The HTML form would contain all of the
following labeled fields:
(1) Today's date.
(2) My name (optional).
(3) My e-mail address (optional).
(4) My postal address (optional).
(5) My telephone number (optional).
(6) I am interested in the following records or
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information:
(7) Where can I inspect these records?
(8) Send me copies of the records without inspection.
(9) Send me a fee estimate before copying.
The HTML form would also be required to be designed to
immediately and automatically send a copy of the
request to the email address from which it was sent.
This bill would permit a person to seek a court order
requiring a state agency to comply with the Internet
posting requirements of the bill through a petition for
an order to show cause, using a process that mirrors the
existing process for seeking court enforcement of a PRA
records request under Section 6259 of the Government
Code. The bill would also mirror Section 6259's
provision requiring a prevailing plaintiff to be awarded
court and discovery costs and reasonable attorney's fees.
This bill would provide that the new Internet posting
requirements, and the applicable enforcement provision,
shall become effective on January 1, 2008.
This bill would require the appointment of a task force
to consider and make recommendations for a statutory
standard governing the posting of Public Records Act
requests and denials and/or public documents that are
subject to disclosure under the Public Records Act on the
Internet Web sites of state agencies. [The full
provisions governing the appointment of this task force
are set out in Comment 7 below.]
COMMENT
1.Stated need for the bill
Although the sponsor expresses gratitude for Governor
Schwarzenegger's issuance of an Executive Order this year
to require both the prominent posting of PRA guidelines,
and the designation and training of staff to handle PRA
requests, the sponsor argues that "the passage of time,
changes in personnel and perhaps even in policy with
succeeding administrations will inevitably erode any
corrections made by such training." Instead, the sponsor
argues that "permanent and structural adjustment is
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needed, and indeed overdue given 21st Century information
practices."
2.General requirements of the Public Records Act (PRA)
The PRA declares that access to information concerning
the conduct of the people's business is a fundamental and
necessary right of every person in this state, and
therefore grants every person the right to inspect any
public record unless that record is explicitly exempted
from disclosure. [Gov. Code 6250, 6253(a).] Public
agencies are required to determine within ten days of
receiving a request whether it pertains to a disclosable
public record, and to make any disclosable record
"promptly available" upon receiving a request that
reasonably describes an identifiable record. [Gov. Code
6253(b)-(c).]
Any person may bring a court action to enforce his or her
right to inspect or receive a copy of a public record,
and a court must order a public official to make a
requested record public if it determines that the
withholding of the record was not justified under the
PRA. [Gov. Code 6258, 6259.] A prevailing plaintiff
who receives a court order to make a record public is
entitled to an award of reasonable attorney's fees.
[Gov. Code 6259(d).]
3.Attorney General review process
The bill would establish an AG review procedure that any
person could use to seek a written opinion on whether an
agency's denial of a public records request was correct.
This review procedure has enjoyed support in past bills
on the basis that it would be a fast and efficient way to
seek an opinion on a PRA request, and because the
requester would not be required to invest the time and
expense associated with a full court action.
Under the bill, review would be sought from the AG either
upon receipt of a denial of a PRA request - in which case
the requester would be required to seek an AG opinion
within 20 days of the denial - or upon the failure of the
agency to respond to the request within 20 days - in
which case the requester would be required to seek an
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opinion within 40 days of submitting his or her PRA
request. Upon receipt of a request for an opinion, the
AG would be expected to issue its written opinion within
20 days unless a finding of "good cause" justifies an
additional delay of up to 30 days. However, the bill
would establish that the time limitations for the AG are
directory, not mandatory.
The AG review process proposed in the bill would not
necessarily be a faster process than the currently
available court processes. If a case can be made to the
court for an expedited hearing, a court action could
conceivably be heard within a day or two of filing (which
could be as soon as ten days after the request was
submitted). The real benefit of the AG review process
contemplated in the bill would be the fact that it is a
less complicated filing process and does not require the
person seeking access to pay court filing fees or an
attorney's retainer. On the other hand, if a person were
to decide that the court review process would be more
beneficial to him or her, the bill would clearly
establish that a person is not required to seek AG review
before bringing a court action under the PRA. The only
constraint would be that a person could not seek court
review while a request for AG review remained pending.
Providing further potential assistance to agencies and
members of the public, the bill would require the AG to
collect the written opinions it issues under the bill
into an annual publication and to make those opinions
available on the Internet. This compilation of written
opinions could ultimately evolve into a comprehensive
body of materials interpreting the requirements of the
PRA. By making these opinions widely available, the bill
could establish an additional resource for agencies and
members of the public to consult in seeking information
about what records requests are appropriate under the
PRA. The bill would permit the AG to charge a fee for
its annual volume of opinions, not to exceed the costs of
publication and distribution.
Opponent California Law Enforcement Association of
Records Supervisors (CLEARS) argues that the AG review
provision could create a conflict of interest situation
because it would require the AG to issue quasi-judicial
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decisions regarding the actions of state agencies, when
some of those agencies might be entitled to
representation by the AG in related actions or
circumstances. The bill contains a number of provisions
that are designed to address these concerns: (1) In cases
where the AG has previously advised a state agency
regarding the agency's response to PRA requests, the bill
specifies that the agency may have a basis for claiming
an attorney-client relationship that would prohibit the
AG from issuing an opinion on the issue; (2) In cases
where the AG has represented or advised, or is
representing or advising, a state agency in a pending
proceeding, the AG would not be authorized to issue an
opinion regarding a PRA request from a party to that
proceeding; and (3) In cases where a state agency would
otherwise be entitled to representation by the AG in its
defense of a PRA denial, but the AG has issued a written
opinion adverse to that denial, the bill would establish
that the agency may retain other counsel who shall be
compensated at the same rate the AG would charge for the
same legal services. These provisions appear to
adequately address the possibility that the AG's
quasi-judicial role under this bill could create a
conflict of interest.
One possible result from the conflict of interest
provisions should be considered, however. Allowing an
agency to claim an attorney-client relationship if the
agency previously received advice from the AG about how
to respond to a PRA request could encourage agencies to
consult the AG about such requests, in advance of
responding, with increased frequency. Seeking such
advice in advance could serve the dual purpose of
informing the agency about how to respond to the request
and insulating the agency from the potential for future
AG administrative review. While it would not be ideal to
encourage actions to avoid administrative review, it
could ultimately be of some benefit to the public if
agencies seek legal advice on difficult PRA questions
before denying the requests.
The bill would also provide that the AG and the
Department of Justice (DOJ) are immune from suit or
discovery in any suit for any action taken as a result of
review conducted under this section of the bill, except
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where the records of the AG or DOJ are the subject of the
request.
The author's staff notes that the author did not add this
section to the bill until the author had received
verification from the AG's office that it was not opposed
to the procedures and terms contained in this section.
4.Monetary penalty provision
This bill would grant courts discretion to award monetary
fees to a plaintiff in specified situations, in effect as
a penalty to public agencies for willful or knowing
failures to comply with the PRA. Specifically, the bill
would permit a court to award up to $100 per day, with a
total limit of $10,000, when a public agency is found to
have taken any of the following actions in bad faith or
with knowledge that a PRA request sought a disclosable
public record: (1) failed to comply with the request;
(2) delayed in responding or producing the record either
without reason, for a reason unsupported by compelling
circumstances, or for a reason that demonstrated a lack
of diligence; (3) imposed an unauthorized condition
precedent to access; or (4) otherwise frustrated timely
and complete access to the record. This potential
monetary award would be in addition to the mandatory
award of attorney's fees that is available under existing
law.
Opponent California Association of Highway Patrolmen
(CAHP) argues that the bill (presumably this provision of
the bill) will increase the number of public records
requests exponentially and "allow attorneys to
concentrate their business solely on suing state and
local agencies for violations of [the PRA], thereby
inundating the agency with requests and allowing these
attorneys to sue for their fees when successful." CAHP's
apparent concern is that the possibility of a monetary
fee award would provide a "carrot" to encourage the
filing of unnecessary PRA requests for the sole purpose
of justifying litigation if the PRA request is treated
improperly by the public agency.
Given the limitations built into the monetary award
provision, it does not appear that the provision would
encourage frivolous or unnecessary PRA requests and suits
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any more than the existing attorney's fees provision.
Although the provision would allow a person to seek a
monetary award for different types of failure to comply
with the PRA - including improper denials of access,
certain types of delay in complying with a PRA request,
imposition of an improper condition precedent to access
to the record, or other acts that frustrate timely and
complete access - the court could only make an award upon
a finding that the agency acted in bad faith or with
knowledge that the relevant PRA request sought a record
that is subject to disclosure under the PRA. Under this
standard, a denial or delay based on a belief that a
record is or might be exempt from disclosure would not be
a basis for a penalty award.
Moreover, committee staff is informed that the author has
reached a conceptual agreement with opponent California
State Association of Counties (CSAC) to further limit the
monetary award language by requiring the court to find
either bad faith or "reckless disregard" of the
requirements of the PRA. Mere knowledge that a record
was subject to disclosure under the PRA might not justify
a penalty award if the agency did not act in "reckless
disregard" of the PRA. This modification would further
ensure that the monetary award provision is available as
a tool for ensuring good faith compliance with the PRA,
without expanding the market for unnecessary or frivolous
lawsuits.
DOES THE AUTHOR INTEND TO AMEND THE MONETARY PENALTY
PROVISION TO REPLACE THE "KNOWLEDGE" STANDARD WITH A
"RECKLESS DISREGARD" STANDARD?
In addition to the above standard for justifying a
monetary award, the limitations placed on the amount of a
potential award also make it unlikely that this provision
would provide any significant inducement to bring
unnecessary suits. The award would be limited to $100
for every day that the agency denies a person's rights
under the PRA, and would be capped at a total of $10,000.
In the absence of a long period of noncompliance, the
award amount would not likely be significant. Moreover,
the bill would provide a list of questions for the court
to consider in determining the amount of an award,
including: (1) whether the agency caused an unreasonable
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or undue delay; (2) whether the agency's action was
reasonably based upon its perceived obligation to protect
the rights of persons or entities identified in the
records; (3) whether the agency had developed publicly
accessible internal operating procedures or guidelines;
(4) whether the plaintiff acted in good faith; and (5)
whether the agency's conduct is inconsistent with the PRA
based on a reasonable interpretation of the law. This
standard could further limit significant monetary awards
to those involving unreasonable or bad faith actions.
In addition to the bill's built-in limitations on the
circumstances in which a court would award more than a
small monetary penalty, it is not clear that even the
potential for a full award of $10,000 would significantly
increase the inducement for plaintiffs to sue beyond the
attorney's fees award already available under existing
law.
5.Internet posting requirements that are not removed by
author's amendments
In the interest of "bring[ing] the [PRA] into the 21st
century," the bill would require state agencies that
already have Internet Web sites to add prominent sections
to those sites that provide the public with: (1)
information about who to contact with PRA requests; (2)
written guidelines for requesting public records from the
agency; and (3) an online form that may be used to submit
a request for information or access to a public record
electronically. These requirements would follow on the
heels of other efforts to modernize the PRA, such as
recent statutes requiring agencies to provide certain
records in an electronic form upon request or requiring
certain public records to be posted online. [ See Gov.
Code 6253.8, 6253.9.]
The most complex requirement added by this section of the
bill would be the mandate for agencies to create an
online form that may be used by the public to
electronically submit requests for PRA records or
information. It should be noted that this provision
would require agencies to accept PRA records and
information requests that are submitted over the
Internet, but would not require agencies to respond over
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the Internet or to provide copies of public records
electronically (any more than is already required under
existing law in Section 6253.9. of the Government Code).
The bill's Internet posting requirements would not place
requirements on state agencies that are significantly
different in concept from existing requirements, since
state agencies are already required to both facilitate
PRA requests and provide information to the public about
how to file such requests. However, the actual
implementation of the requirements could involve some
complicated considerations, since there are presumably
technological nuances associated with creating an online
form for submitting electronic PRA requests.
Implementation would also likely require a number of
staffing and resource considerations in order to set up
and manage the new Internet requirements.
The potential difficulty of implementing these changes is
put into greater relief by the fact that the bill would
also create an enforcement provision for these
requirements to mirror the existing PRA enforcement
provision, including a requirement that mandatory
attorney's fees be granted to a prevailing plaintiff. In
light of the strong measures the bill would put in place
for prosecuting violations, the author has agreed to
offer amendments in committee to delay the implementation
of this provision until January 1, 2008.
Two additional, minor clarifications may also be
appropriate. First, the required labels for the online
form contain a heading that would allow a person to
request that an entity "Send me copies of the records
without inspection." This language is presumably meant
to reflect that a person may request that the agency send
public records to him or her without first visiting the
agency to "inspect" the records. However, there may be
confusion among members of the public as to what is meant
by "inspection."
SHOULD THE WORDS "WITHOUT INSPECTION" BE DELETED FROM THE
ONLINE FORM REQUIREMENTS, FOR PURPOSES OF CLARITY?
The bill would require that the online request form be
designed to "immediately and automatically send a copy of
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the request to the e-mail address from which it was
sent." This requirement is presumably designed to ensure
that a person can easily keep a copy of the online
request. However, the other terms of this section
specify that it is "optional" for a person to include his
or her e-mail address on the request form. It would
presumably be impossible for the form to send a copy of
the request to the person's e-mail address if that
address is not provided.
SHOULD IT BE CLARIFIED THAT A COPY NEED ONLY BE SENT TO
THE E-MAIL ADDRESS FROM WHICH THE REQUEST WAS SENT "IF
THAT E-MAIL ADDRESS IS PROVIDED BY THE PERSON SUBMITTING
THE FORM"?
6.Author's amendments to remove certain Internet posting
requirements and instead convene a task force to study
the issue and make recommendations
The author has agreed to offer author's amendments in
committee to remove a large portion of the Internet
posting requirements currently contained in the bill.
This amendment is offered in recognition of concerns
raised by committee staff and certain state agencies and
boards that proposed requirements for the automatic
posting of certain public documents on the Internet could
result in significant costs and potential security
concerns, while providing an uncertain amount of public
benefit.
In place of the relevant provisions of the bill, the
author's amendments would create a task force to make
recommendations regarding the possibility of requiring
public records to be posted automatically online, taking
into consideration the potential value to the public, any
implementation and management costs, and the availability
of adequate security protections. [The full text of this
provision is set out in Comment 7 below.]
The one unresolved question with regard to the creation
of a task force is what entity would be most appropriate
to convene the task force. The author's staff has
suggested that the Administration, the Department of
Justice (DOJ), or the Secretary of State may be
appropriate options. The author's staff further
AB 2927 (Leno)
Page 18
indicates that the author would suggest DOJ as the most
appropriate option, since it is the entity that would be
responsible for defending state agencies that fail to
comply with whatever requirements are ultimately
implemented.
WHAT ENTITY WOULD BE THE MOST APPROPRIATE CHOICE TO
CONVENE THE TASK FORCE TO REVIEW THE AUTHOR'S PROPOSED
INTERNET POSTING REQUIREMENTS?
7.Author's amendments
The following amendments will be offered by the author in
committee:
A. On page 3, strike out lines 27 - 39, and strike out
page 4, and insert:
(c) This section shall become effective on January 1,
2008.
SEC. 2. (a) The [insert agency or department here]
shall appoint an advisory task force to consider and
make recommendations for a statutory standard
governing the posting of Public Records Act requests
and denials and/or public documents that are subject
to disclosure under the Public Records Act on the
Internet Web sites of state agencies.
(b) The task force should consider the following
issues:
(1) Whether it is of greater value to the public for
state agencies to automatically post, with appropriate
security and privacy controls, certain public records
that are subject to disclosure under the Public
Records Act, Government Code 6250, et seq., on
agency Web sites rather than making such records
available to requesters on a request-only basis.
Specific consideration should be given to records that
relate to the compensation and economic interests of
key public officials and consultants, and the
performance of public agencies, including but not
limited to the settlement of litigation. Specific
consideration should also be given to what specific
AB 2927 (Leno)
Page 19
advantages or disadvantages may be associated with an
affirmative Internet posting requirement.
(2) Whether eventual cost savings and/or increases in
efficiency are likely to offset the implementation and
management costs of requiring state agencies to
automatically post disclosable public records on their
Internet Web sites, and whether certain types of
public record are better suited to automatic
disclosure based on these cost/efficiency
considerations.
(3) Whether appropriate security measures are
available, and cost-effective, to ensure that the
personal or proprietary information contained in a
public record that is posted on the Internet is
protected from the possibility of identity theft or
other forms of misuse.
(4) Whether appropriate security measures are
available, and cost-effective, to ensure that
disclosable public records posted on the Internet are
protected from alteration by third parties or other
forms of misuse.
(5) Other issues that might arise from a statutory
requirement that certain public records be
automatically posted on agency Internet Web sites.
(c) Members of the task force shall include the
following:
(1) State agency and/or board representatives.
(2) Representatives of the Department of Information
Technology.
(3) Representatives of organizations with expertise in
technical policy and practices of Internet disclosure.
(4) Representatives of organizations with expertise in
public integrity, goals, and values.
(5) Representatives of organizations with expertise in
informed electoral participation.
AB 2927 (Leno)
Page 20
(6) Representatives of organizations with expertise in
investigative journalism.
(7) Legislative staff representatives.
B. On page 21, strike out lines 6 - 17, and insert:
(e) This section shall become effective on January 1,
2008.
Support: Associated Builders and Contractors of
California; California Newspaper Publishers
Association; Center for Public Interest Law; Common
Cause; United Reporting Publishing Crime Beat News
Opposition: California Law Enforcement Association of
Records Supervisors (CLEARS); California State
Association of Counties (CSAC); California State
Sheriffs' Association; California Veterinary
Medical Association; Riverside County Sheriff's
Department; Veterinary Medical Board; one
individual
HISTORY
Source: Californians Aware
Related Pending Legislation: None Known
Prior Legislation: SB 48 (Sher, 1999), vetoed by Governor
Davis, would have permitted a person to seek
written review from the AG when an agency
declined to comply with a PRA request. The
bill would also have permitted a court award
of up to $100 per day (up to $10,000) when a
public entity declined to comply with a PRA
request either in bad faith or with knowledge
that the record was not exempt from PRA
disclosure.
SB 2027 (Sher, 2000), vetoed by Governor
Davis, mirrored SB 48 but added provisions to
address concerns from the SB 48 veto message
AB 2927 (Leno)
Page 21
that review of PRA request denials by the AG
could cause a conflict of interest between
the AG and state agencies that might be
represented by the AG.
AB 822 (Shelley, 2002), vetoed by Governor
Davis, mirrored SB 2027 but also specified
that 50% of a court award against a public
entity under the terms of the bill would go
to the General Fund if a plaintiff first
sought written review from the AG of the
decision not to comply with the PRA request.
Prior Vote: Assembly Floor (80 - 0)
Assembly Appropriations (13 - 5)
Assembly G.O. (12 - 0)
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