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