BILL NUMBER: AB 1245 CHAPTERED
BILL TEXT
CHAPTER 519
FILED WITH SECRETARY OF STATE OCTOBER 11, 2009
APPROVED BY GOVERNOR OCTOBER 11, 2009
PASSED THE SENATE AUGUST 27, 2009
PASSED THE ASSEMBLY AUGUST 31, 2009
AMENDED IN SENATE JUNE 30, 2009
AMENDED IN ASSEMBLY APRIL 13, 2009
AMENDED IN ASSEMBLY APRIL 2, 2009
INTRODUCED BY Assembly Member Monning
FEBRUARY 27, 2009
An act to add Chapter 3.01 (commencing with Section 6204) to
Division 7 of Title 1 of the Government Code, relating to public
records.
LEGISLATIVE COUNSEL'S DIGEST
AB 1245, Monning. Recovery of public records.
Existing law provides that every officer having the custody of any
public record, as specified, filed or deposited in any public
office, or placed in his or her hands for any purpose, is punishable
by imprisonment in the state prison for 2, 3, or 4 years if the
officer willfully steals, removes, destroys, mutilates, defaces,
alters, or falsifies the record, or causes another person to do so.
Existing law also provides that every person not an officer who is
guilty of any of these acts is punishable by imprisonment in the
state prison or in a county jail for a period not exceeding one year,
or by a fine not exceeding $1,000, or by both.
This bill would authorize the Secretary of State, whenever the
secretary, in consultation with the State Archivist, has reasonable
grounds to believe that a public record belonging to a state or a
local agency is in the possession of a person, organization, or
institution not authorized by law to possess the record, to issue a
written notice demanding that person, organization, or institution
within 20 calendar days, either to return the record or respond in
writing and declare why the record does not belong to the state or a
local agency. The bill would require the secretary or a local agency
to issue a copy or digital image of the record, when a record is
returned and the person, organization, or institution returning that
record makes that request.
The bill would also authorize the secretary, if the person,
organization, or institution does not deliver the described record,
does not respond to the notice and demand within the required time,
or does not adequately demonstrate that the record does not belong to
the state or a local agency, to ask the Attorney General to petition
the superior court in the county in which the record is located for
an order requiring the return of the record. The court would be
required, after a hearing, and upon a finding that the specified
record is in the possession of a person, organization, or institution
not authorized by law to possess the record, to order the record to
be delivered to the State Archivist or other government official
designated by the court, and would be authorized to make the record
available for public access pursuant to the California Public Records
Act.
The bill would provide that the prevailing party may be awarded
reasonable attorney's fees and costs in an action brought under these
provisions. A local agency would be authorized to request the
Secretary of State to act on its behalf under these circumstances and
the bill would set forth the criteria pursuant to which the local
agency could undertake these procedures on its own behalf. The bill
would exempt from these provisions an organization or institution
that follows professional practices recommended by the Society of
American Archivists for the management, care, and preservation of
historical records and that makes records in its possession available
for inspection in accordance with disclosure requirements applicable
to public agencies.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Chapter 3.01 (commencing with Section 6204) is added to
Division 7 of Title 1 of the Government Code, to read:
CHAPTER 3.01. PUBLIC RECORDS PROTECTION AND RECOVERY
6204. (a) For purposes of this chapter, the following definitions
shall apply:
(1) "Archivist" means the Keeper of the Archives, as specified in
Section 12227.
(2) "Record" has the same meaning as "public records" is defined
in subdivision (e) of Section 6252, and includes, but is not limited
to, any writing containing information relating to the conduct of the
public's business prepared, owned, used, or retained by a state or
local agency regardless of physical form or characteristics.
(3) "Secretary" means the Secretary of State.
(b) Whenever the secretary, in consultation with the archivist,
has reasonable grounds to believe that a record belonging to the
state or a local agency is in the possession of a person,
organization, or institution not authorized by law to possess those
records, the secretary may issue a written notice demanding that
person, organization, or institution to do either of the following
within 20 calendar days of receiving the notice:
(1) Return the record to the appropriate state or local agency.
(2) Respond in writing and declare why the record does not belong
to the state or a local agency.
(c) The notice and demand issued pursuant to subdivision (b) shall
identify the record claimed to belong to the state or local agency
with reasonable specificity, and shall state that the secretary is
authorized to take legal action to recover the record if the person,
organization, or institution fails to respond in writing within the
required time or does not adequately demonstrate that the record does
not belong to the state or a local agency.
(d) The secretary shall send the notice and demand specified in
subdivision (b) by certified or registered mail, return receipt
requested.
(e) When a record is returned pursuant to paragraph (1) of
subdivision (b), upon the request of the person, organization, or
institution that returned the record, the secretary or a local agency
that receives the record shall issue to that person, organization,
or institution a copy or digital image of the record, which shall be
certified as a true copy of the record that was returned to the state
or local agency, and dated on the same day the record was returned.
6204.1. (a) If a person, organization, or institution that
receives a written notice and demand from the secretary pursuant to
Section 6204 does not deliver the described record, does not respond
to the notice and demand within the required time, or does not
adequately demonstrate that the record does not belong to the state
or a local agency, the secretary may ask the Attorney General to
petition the superior court in the county in which the records are
located for an order requiring the return of the record.
(b) After a hearing, and upon a finding that the specified record
is in the possession of a person, organization, or institution not
authorized by law to possess the record, the court shall order the
record to be delivered to the archivist or other government official
designated by the court.
(c) The court may issue any order necessary to protect the record
from destruction, alteration, transfer, conveyance, or alienation by
the person, organization, or institution in possession of the record,
and may order the record to be surrendered into the custody of the
archivist pending the court's decision on the petition.The court may
order the record to be available for public access under a request
made pursuant to the California Public Records Act (Chapter 3.5
(commencing with Section 6250)).
6204.2. (a) If a local agency has reasonable grounds to believe
that a record belonging to that local agency is in the possession of
a person, organization, or institution not authorized by law to
possess the record, it may request the secretary to act on its behalf
pursuant to the procedures specified in Sections 6204 and 6204.1, or
undertake on its own behalf the same procedure available to the
secretary under those sections, subject to subdivisions (b), (c), and
(d).
(b) If a person, organization, or institution that receives a
written notice and demand from a local agency issued pursuant to this
section does not deliver the described record, does not respond to
the notice and demand within the required time, or does not
adequately demonstrate that the record does not belong to the local
agency, the local agency may request the county district attorney or,
where applicable, the city attorney, to petition the superior court
in the county in which the record is located for an order requiring
the return of the record.
(c) After a hearing, and upon a finding that a specified record is
in the possession of a person, organization, or institution not
authorized by law to possess the record, the court shall order the
record to be delivered to the local agency or a government official
designated by the court.
(d) The court may issue any order necessary to protect the record
from destruction, alteration, transfer, conveyance, or alienation by
the person, organization, or institution in possession of the record,
and may order the record to be surrendered into the custody of the
local agency pending the court's decision on the petition. The court
may order the record to be available for public access under a
request made pursuant to the California Public Records Act (Chapter
3.5 (commencing with Section 6250)).
6204.3. (a) Notwithstanding any other provision of this chapter,
an organization or institution having physical custody of a record
shall be exempt from Sections 6204 to 6204.2, inclusive, if the
organization or institution meets both of the following requirements:
(1) It follows professional practices recommended by the Society
of American Archivists, as used by the archivist, for the management,
care, and preservation of historical records.
(2) It requires that all records it receives or maintains are
subject to inspection to the same extent that the records would be
subject to inspection and not exempt from disclosure pursuant to
Chapter 3.5 (commencing with Section 6250) if received or maintained
by a public agency.
(b) If an organization or institution refuses public inspection of
a record in its custody in violation of the requirements described
in paragraph (2) of subdivision (a), the archivist or local agency,
or a designated representative, shall contact the organization or
institution to inform it of those requirements and, if appropriate,
facilitate inspection of the record. If an organization or
institution continues to deny public inspection consistent with
paragraph (2) of subdivision (a), the secretary, on behalf of the
archivist or the local agency may pursue recovery of the records
under this chapter.
6204.4. In an action brought pursuant to this chapter, the court
may award reasonable attorney's fees and costs to the prevailing
party.