BILL ANALYSIS AB 1393 Page 1 Date of Hearing: April 18, 2007 ASSEMBLY COMMITTEE ON GOVERNMENTAL ORGANIZATION Alberto Torrico, Chairman AB 1393 (Leno) - As Amended: April 11, 2007 SUBJECT: Public records. SUMMARY : Requires 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 California Public Records Act (CPRA) about how to contact the agency, how to request records under the act, and a form for submitting online requests for records. In addition, 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. Specifically, this bill : 1)Requires of every state agency that publishes an Internet Web site to include on the home page of that site "Whom to Contact" and "How to Request Records." 2)Specifies that a court may award to a plaintiff up to $100 for each day that a state or local agency: a) Declines to comply with a request to inspect or copy a record that is publicly accessible pursuant to CPRA, or b) Delays in responding to the request "for reasons that are unstated to the requester, or that are unsupported by compelling circumstances, or that otherwise demonstrate a lack of the diligence required to make records available promptly, without delay or obstruction," pursuant to the CPRA. 1)Specifies that a court may award to a plaintiff up to $100 for each day that a state or local agency denies a request to copy or inspect public records disclosable under the California CPRA when an agency imposes conditions not authorized by the CPRA on access to records, or "otherwise frustrates timely and complete access." 2)Specifies that the total award may not exceed $10,000. AB 1393 Page 2 3)Requires the Department of Justice to convene an advisory task force to consider and make recommendations to the Governor and Legislature by September 30, 2008 on posting public documents on Internet websites. EXISTING LAW : 1)Provides under the California Constitution (Article 1, Section 3) that the people have the right to instruct their representatives, petition government for redress of grievances, and assemble freely to consult for the common good. 2)The following state laws regulate the public's access to government information: a) States that the PRA establishes the right of every person to inspect and obtain copies of all state and local government documents and records not exempt from disclosure. The PRA requires specified state and local agencies to establish written guidelines for accessibility of records, to post these guidelines at their offices, and to make them available free of charge to any person requesting that agency's records. b) The Ralph M. Brown Act (Brown Act) which governs meetings of legislative bodies of local agencies (e.g. boards of supervisors, city councils, school boards) is virtually identical to the Bagley-Keene Act and requires local legislative bodies to hold meetings in open forum after public notice of agenda items. The Brown Act also recognizes the need, under limited circumstances, for these bodies to meet in private in order to carry out their responsibilities in the best interests of the public and provides for specified exceptions. Both acts (Brown Act & Bagley-Keene) provide that the covered entities "exist to aid in the conduct of the people's business" and that their actions "be taken openly and that their deliberations be conducted openly." c) The Bagley-Keene Open Meeting Act (Bagley-Keene) requires all meetings of a state body to be open and public and grants the right to attend such meetings to all persons, with certain exceptions. The Bagley-Keene AB 1393 Page 3 requires these public meetings to be noticed with an agenda that contains the items of business that may be acted upon at the meeting. The Bagley-Keene defines a state body to mean every state board, commission, or similar multimember body of the state that is created by statute or required by law to conduct official meetings and every commission created by executive order. In addition, the Bagley-Keene excludes from that definition certain bodies of the Judiciary and Legislature, among other things. d) The Legislative Open Records Act (LORA) provides that the public may inspect legislative records, as defined, and mandates that committee and floor analyses records be permanently preserved either in the appropriate committee office or with the State Archives. The LORA declares, "Access to information concerning the conduct of the people's business by the Legislature is a fundamental and necessary right of every citizen in this state." The LORA provides for "nondisclosure" of certain records, including, (1) records pertaining to pending litigation; (2) preliminary drafts, notes, or legislative memoranda, except as specified; (3) personnel, medical, or similar files; (4) communications from private citizens; (5) records in the custody of or maintained by the Legislative Counsel; (6) correspondence of and to individual Legislators and their staff; (7) records of complaints to or investigations conducted by, or records of security procedures of, the Legislature; and, (8) records maintained by the majority and minority caucuses. e) The Grunsky-Burton Open Meeting Act (Grunsky-Burton) provides that meetings of a house of the Legislature or a committee shall be open and public and all persons shall be permitted to attend the meetings. The Grunsky-Burton permits the Legislature or a committee thereof to hold closed meetings solely for any of the following purposes: (1) to consider certain personnel matters; (2) to consider matters affecting safety and security; (3) to confer with legal counsel regarding any litigation matter; and, (4) a caucus of the Members of the Senate, the Members of the Assembly, or the Members of both houses. f) Provides that a state agency, against which an action is brought, after an adverse opinion, is authorized to retain counsel, other than the Attorney General, who shall be AB 1393 Page 4 compensated at the same rate that the Attorney General would change for legal services for the defense of that action. FISCAL EFFECT : Unknown COMMENTS : Background . The PRA, fashioned after the Federal Freedom of Information Act (FOIA), defines a "public record" as any recording in any form of communication or representation, relating to the conduct of the public's business, that is prepared, own ed, used or retained by any governmental agency in the State, regardless of its form or physical characteristics. Any person, company, corporation, firm, partnership or association has the right to inspect public records during normal business hours or to receive a copy of a record by paying the cost of duplication, except when the record is exempted from disclosure by state or federal law. Government representatives violate the law when they ask who a person is, require identification or inquire why the information is requested. Governmental agencies are not allowed to delay the inspection of public records and, in all circumstances, must respond to a PRA request within 10 calendar days. However, for records known to be disclosable, such as the information on which the CalAware audit was based, public records are to be made available "promptly"-a person need not wait for 10 days. In fact, the PRA emphasizes that nothing "shall be construed to permit an agency to delay or obstruct the inspection or copying of public records." CalAware audit . 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 AB 1393 Page 5 complied charged an improper fee. Purpose of the bill . The author states, "Although the PRA, (Government Code Section 6250 et seq.) was enacted in 1968 to ensure the public's right to know how state and local governments are functioning, a January 2006 audit by CalAware reveals that most state agencies are not complying with the spirit or substance of this important law. 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 poor compliance stands in stark contrast to the will of California voters who amended the California Constitution in 2004 with the passage of Proposition 59, elevating the public's right to open government to a constitutionally protected right: "'The people have the right of access to information concerning the conduct of the public's business, and, therefore the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.' [California Constitution, Article 1, Section 3(b)(1)] "This bill seeks to ensure that the public knows how to go about making a public records request pursuant to PRA by requiring any state agencies to post this information. In addition, this bill includes penalties for failure to comply with PRA." The author states 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. Knowing that three substantially similar bills had been vetoed because of provisions relating to the AG, the author's office amended this bill to omit any allowance for the AG to review State agency denials. This amendment addresses the concern as stated in previous veto messages relating to any inherent conflict of interest. AB 1393 Page 6 Reintroduction of prior year's bill . This bill is significantly identical to AB 2927 (Leno) of 2006, with the exception that this bill omits the opportunity for people to request the California Attorney General to review a state agency's denial of a written request to inspect or receive a copy of public records, as specified. Governor Schwarzenegger vetoed AB 2917 (Leno) on the grounds that it would have created an inherent conflict of interest in instances wherein the Attorney General would be obligated, on the one hand, to conduct a review of a State agency denial of a PRA request, while also being obligated to provide legal counsel to that State agency on PRA matters. His veto message also reviewed actions that he has taken to address agency compliance with the PRA. The portion of Governor Schwarzenegger's veto message regarding the AG reads: "[T]he provision allowing the Attorney General to review denials of public records requests is unduly burdensome. The Attorney General is the attorney for most State agencies and advises agencies on responding to such requests and thus this bill creates an inherent conflict of interest." In support . Supporters state "the passage of time, changes in personnel and perhaps even in policy with succeeding administrations will inevitably erode any corrections made by training of state agency staff (as stated in Governor's veto message)." Instead, the sponsor states, "permanent and structural adjustment is needed, and indeed overdue given 21st Century information practices." In opposition . According to the California State Sheriffs' Association, "the unrealistic timeline this bill creates would place a burden on agencies to respond quickly to sometimes very complicated requests for information. This organization states this bill "does not allow time for issues to be resolved at the local level" and encourages people "to immediately appeal to a higher authority." The Desert Water Agency (DWA) notes that current law provides sufficient remedies for persons who are denied access to a public record. Section 6258 of the Government Code provides that any person may institute proceedings for injunctive declarative relief or writ of mandate in any court of competent AB 1393 Page 7 jurisdiction to enforce their right to inspect or receive a copy of any public record or class of public records. Prior legislation . AB 2927 (Leno, 2006), vetoed by Governor Schwarzenegger, would have required 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 PRA about how to contact the agency, how to request records under the act, and a form for submitting online requests for records. In addition, 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. 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. 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. Double referral . This bill has been double referred to the Assembly Committee on Judiciary. REGISTERED SUPPORT / OPPOSITION : Support Californians Aware Opposition AB 1393 Page 8 California Law Enforcement Association of Records Supervisors, Inc. California State Sheriff's Association Desert Water Association Association of California Water Agencies Analysis Prepared by : Eric Johnson / G. O. / (916) 319-2531