BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2007-2008 Regular Session
SB 1696 S
Senator Yee B
As Introduced
Hearing Date: March 25, 2008 1
Government Code 6
JR/GMO:rm 9
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SUBJECT
California Public Records Act: Disclosure
DESCRIPTION
The bill would prohibit a state or local agency from
allowing another party to control the disclosure of
information that is otherwise subject to disclosure under
the California Public Records Act (CPRA). In addition, the
bill would specify that regardless of any contract term to
the contrary, a contract for the purpose of conducting a
review, audit, or report between a private entity and a
state or local agency, including the University of
California (UC), is subject to the same disclosure
requirements and exceptions as other public records under
the CPRA.
(This analysis reflects author's amendments to be offered
in committee.)
BACKGROUND
The CPRA states that "access to information concerning the
conduct of the people's business is a fundamental and
necessary right of every person in this state." (Government
Code Section 6250. All references are to this code unless
otherwise indicated.) The CPRA provides that public
records are subject to disclosure and must be made
available to the public unless that type of record is
exempt from disclosure. (Sec. 6254.) The policy of the act
strongly favors disclosure of public records. ( San Lorenzo
(more)
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Valley Community Advocates for Responsible Education v. San
Lorenzo Valley Unified School District (2006), 139
Cal.App.4th 1356.)
The CPRA defines a "public record" as a "writing containing
information relating to the conduct of the public's
business prepared, owned, used, or retained by any state or
local agency regardless of physical form or
characteristics." (Sec. 6252.) The CPRA allows 10 days
for an agency to respond to a request to inspect. (Sec.
6253.) Public records are open to inspection at all times
during the office hours of the state or local agency.
In 2004, Proposition 59 created the constitutional right to
access public records with the presumption favoring
disclosure and that statutory exemptions allowing for
non-disclosure must be narrowly read. (California
Constitution, Article 1, Section 3.) The CPRA includes 29
general categories of records that are expressly exempt
from public disclosure. These categories are based on the
character of the information in the records. In addition,
the CPRA has a catch-all exemption which provides that
records are not subject to disclosure when the public's
interest in non-disclosure clearly outweighs the public's
interest in disclosure. (Sec. 6255.) This public interest
exemption is based on the facts of the particular case.
The court conducts a balancing test to determine when a
record must be disclosed.
CHANGES TO EXISTING LAW
Existing law , the CPRA, requires that a state or local
agency make all public records available for inspection
upon request by a person, subject to specified exemptions.
(Secs. 6253 and 6254.)
This bill would provide that a state or local agency may
not allow another party to control the disclosure of
information that is otherwise subject to disclosure under
the CPRA.
This bill would declare this to be existing law.
Existing law , provides exemptions for public records from
disclosure under the CPRA. Some exemptions include:
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personnel, medical, or similar files, the disclosure of
which would constitute an unwarranted invasion of personal
privacy; records pertaining to pending litigation; employee
relations records; and major risk medical insurance program
records. (Sec. 6254.)
This bill would provide that a contract, regardless of any
contract term to the contrary, for the purpose of
conducting a review, audit, or report, between a private
entity and a state or local agency, including the
University of California, is subject to the same disclosure
requirements and exemptions as other public records under
the CPRA.
COMMENT
1.Author's Amendments
The author has offered the following amendments to Sections
1 and 2 of the bill:
SEC.1. Section 6253.3 is added to the Government Code,
to read:
6253.3. A state or local agency may not , by
confidentiality agreement or other contract, make
information confidential or disclosable only with
permission of the other party to the contract if that
allow another party to control the disclosure of
information that is otherwise subject to disclosure
pursuant to this chapter.
SEC. 2. Section 6253.31 is added to the Government
Code, to read:
6253.31. Notwithstanding any contract term to the
contrary, any Any contract entered into by a state or
local agency subject to this chapter, including the
University of California, that requires a private
entity to review, audit, or report on any aspect of
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that agency shall be public to the extent the contract
is otherwise and subject to disclosure under this
chapter.
2. Need for the bill
The author seeks to clarify existing law in order to
prevent recurrence of a CPRA-related incident involving
the University of California at San Francisco (UCSF) in
January 2008. The San Francisco Chronicle submitted a
CPRA request to UCSF for a copy of an independent audit
of the school's finances. UCSF denied the request and
did not release the report or the name of the firm it had
hired to conduct the financial review, claiming that the
contract between UCSF and the private auditing firm
required the latter's consent before the report could be
shared. In February 2008, UCSF released both the name of
the firm and the report.
3. State agency may not make information confidential by
agreeing not to disclose without prior consent of another
party
The CPRA is very clear in its language: all records of
state and local agencies are open and may be accessed by
the public unless the record or information contained in
the record is exempt. Thus, any attempt to circumvent
the open records requirement of CPRA (and Article 1,
Section 3 of the California Constitution) by an agreement
or a provision in an agreement that the information could
not be disclosed without the consent of the other party
or parties is a violation of the CPRA, if the record or
information is not exempt from disclosure. The test of
whether a record or information is subject to disclosure
is contained in the CPRA itself: there are some 29
exemptions, and each exemption characterizes the
information or record that is being protected from
disclosure.
SB 1696 would prohibit a state or local agency from
allowing another party to control the disclosure of
information, since that would involve the other party
making the determination of whether or not the
information is exempt from or subject to disclosure.
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Given that a state or local agency is in fact the party
responsible for disclosing information or denying a
request for access based on an exemption under the CPRA,
the language contained in Section 1 of the bill (as
amended by author's amendments in Comment 1) would be
consistent with existing law.
4. Contract with private entity for audit, review, or
report on state agency, including UC, is subject to
disclosure
Section 2 of the bill would specify that regardless of
any contract term to the contrary, a contract for the
purpose of conducting a review, audit, or report between
a private entity and a state or local agency, including
the UC, is subject to the same disclosure requirements
and exceptions as all other public records under the
CPRA.
Under the CPRA, a "public record" is defined as a
"writing containing information relating to the conduct
of the public's business prepared, owned, used, or
retained by any state or local agency regardless of
physical form or characteristics." (Sec. 6252.) The
definition of "public record" is broad and is meant to
cover every conceivable kind of record that is involved
in the governmental process. ( Versaci v. Superior Court
(2005), 127 Cal.App.4th 805.) Clearly, a contract to
audit, review, or report on any aspect of a state or
local agency would fit within the definition of a "public
record." However, to avoid the re-occurrence of the
incident with UCSF, SB 1696 makes it clear that this type
of contract is subject to disclosure under the CPRA.
The language of Section 2 specifically refers to the
University of California, to ensure that the university
is subject to its provisions. Because the UC is a
creature of the constitution, it is exempt from a variety
of laws, rules, and regulations that affect state and
local agencies. Therefore, the UC must be specifically
included in the language of a statute, if it is expected
to apply to the university.
5.Arguments in Support
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Supporters of SB 1696 contend that this bill helps provide
disclosure under the CPRA. Referring to the UCSF
incident, the California Newspaper Publishers Association
states, "[t]he denial of a request by a government agency
claiming that a provision in an agreement prevents it
from executing its duties under the law stands this
central tenet of the CPRA on its head? SB 1696 would
block this ? strategy while safeguarding the essential
principles of public accessibility and accountability in
the CPRA that have been established for 40 years."
The Foundation for Taxpayer and Consumer Rights contend
that this bill "would remove any possible doubt about the
administrators' responsibilities to the public. It is
unfortunate that the UC officials must be reminded of
their obligations as public servants, but clearly this is
the case."
The American Federation of State, County and Municipal
Employees (AFSCME) Local 3299 believe that "it is crucial
that the public have the right to obtain information on
government agencies if there is to be true oversight of
public agencies. [This] legislation is crucial to
ensuring that state and local agencies, including the
University of California, are not able to shield
information from the public by simply entering into
confidentiality agreements [that allow the other party to
control disclosure of information]."
Support: American Federation of State, County and
Municipal Employees (AFSCME) Local 3299;
California Newspaper Publishers Association;
California Nurses Association; The Foundation for
Taxpayer and Consumer Rights; 1 individual
Opposition: None Known
HISTORY
Source: Author (Co-Sponsor); American Federation of State,
County and Municipal Employees (AFSCME) (Co-Sponsor)
Related Pending Legislation: AB 1978 (Solorio) would
exempt computer mapping data and
tools from the CPRA. This bill has
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been referred to the Assembly
Committees on Governmental
Organizations and Local Government.
Prior Legislation: None Known
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