BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 1393
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          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.  








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          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  








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               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  








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               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  








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          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.








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           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  








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          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 








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          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