BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 2927|
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THIRD READING
Bill No: AB 2927
Author: Leno (D)
Amended: 8/14/06 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE : 5-0, 8/8/06
AYES: Dunn, Morrow, Escutia, Harman, Kuehl
SENATE APPROPRIATIONS COMMITTEE : 13-0, 8/17/06
AYES: Murray, Aanestad, Alarcon, Alquist, Ashburn, Battin,
Dutton, Escutia, Florez, Ortiz, Poochigian, Romero,
Torlakson
ASSEMBLY FLOOR : 80-0, 5/31/06 - See last page for vote
SUBJECT : Public records
SOURCE : Californians Aware
DIGEST : This bill establishes a procedure for seeking
review by the Attorney General when a public agency denies
or fails to timely grant a written request for a record
under the Public Records Act (PRA). The bill also permits,
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 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. This bill
CONTINUED
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also places new Internet posting requirements on state
agencies that have Internet Web sites, effective January 1,
2008. The bill also requires 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.
ANALYSIS : The California Public Records Act requires
state and local agencies to make their records available
for public inspection and, upon request of any person, to
provide a copy of any public record unless the record is
exempt from disclosure.
This bill, as of January 1, 2008, require any state agency
that publishes an Internet Web site to include on the
homepage of that site specified information that is not
exempt from disclosure under the act about how to contact
the agency, how to request records under the act, and a
form for submitting online requests for records. It
authorizes any person to bring an action to enforce the
duty of a state agency to post this information and would
provide for penalties including monetary awards to be paid
by the agency, with specified provisions to become
operative on January 1, 2008.
The bill also authorizes a person to 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 and would require the Attorney General to issue a
written decision within 20 working days of the date the
written request and written response or lack of response of
an agency is received by the Attorney General. 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 to
make them available on the Internet.
This bill requires the Department of Justice to convene an
advisory task force with a specified membership, to
consider specified issues with respect to a statutory
standard governing the posting of certain activities under
the act, and to report its findings and recommendations to
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the Governor and the Legislature no later than July 1,
2007.
Background
In 1999, the 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
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
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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
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's office, 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.
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 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.
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AB 822 (Shelley, 2002), vetoed by Governor Davis, mirrored
SB 2027 but also specified that 50 percent 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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
According to the Senate Appropriations Committee:
Fiscal Impact (in thousands)
Major Provisions 2006-07 2007-08 2008-09
Fund
Attorney General review $606 $1,212$1,212
General
Website updates Likely
absorbable costs
Various
Task Force Minor,
absorbable costs
General
Costs for DOJ to convene the required advisory task force
and report to the Governor and Legislature should be minor
and absorbable.
This bill further specifies how state agencies with
websites are to display information about accessing public
records online by January 1, 2008. DGS estimates costs for
state agencies to comply with these requirements by the
date required should be absorbable within most state
agencies' existing resources.
SUPPORT : (Verified 8/18/06)
Californians Aware (source)
Office of the Attorney General
California Newspaper Publishers Association
Center for Public Interest Law
Common Cause
League of Women Voters of California
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San Francisco Sunshine Ordinance Task Force
United Reporting Publishing Crime Beat News
ARGUMENTS IN SUPPORT : Supporters argue 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
needed, and indeed overdue given 21st Century information
practices."
ASSEMBLY FLOOR :
AYES: Aghazarian, Arambula, Baca, Bass, Benoit, Berg,
Bermudez, Blakeslee, Bogh, Calderon, Canciamilla, Chan,
Chavez, Chu, Cogdill, Cohn, Coto, Daucher, De La Torre,
DeVore, Dymally, Emmerson, Evans, Frommer, Garcia,
Goldberg, Hancock, Harman, Haynes, Jerome Horton, Shirley
Horton, Houston, Huff, Jones, Karnette, Keene, Klehs,
Koretz, La Malfa, La Suer, Laird, Leno, Leslie, Levine,
Lieber, Lieu, Liu, Matthews, Maze, McCarthy, Montanez,
Mountjoy, Mullin, Nakanishi, Nation, Nava, Negrete
McLeod, Niello, Oropeza, Parra, Pavley, Plescia, Richman,
Ridley-Thomas, Sharon Runner, Ruskin, Saldana, Salinas,
Spitzer, Strickland, Torrico, Tran, Umberg, Vargas,
Villines, Walters, Wolk, Wyland, Yee, Nunez
RJG:nl 8/19/06 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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