BILL NUMBER: SB 218 ENROLLED
BILL TEXT
PASSED THE SENATE SEPTEMBER 8, 2009
PASSED THE ASSEMBLY SEPTEMBER 3, 2009
AMENDED IN ASSEMBLY SEPTEMBER 2, 2009
AMENDED IN ASSEMBLY AUGUST 26, 2009
AMENDED IN ASSEMBLY AUGUST 17, 2009
AMENDED IN ASSEMBLY JULY 14, 2009
AMENDED IN ASSEMBLY JUNE 30, 2009
AMENDED IN SENATE MAY 28, 2009
AMENDED IN SENATE MAY 20, 2009
AMENDED IN SENATE MAY 5, 2009
AMENDED IN SENATE APRIL 27, 2009
INTRODUCED BY Senator Yee
(Coauthors: Senators Calderon, DeSaulnier, Dutton, and Runner)
(Coauthors: Assembly Members Beall, DeVore, Furutani, Nielsen,
Portantino, Silva, Smyth, Torrico, and Tran)
FEBRUARY 23, 2009
An act to amend Sections 72670, 72670.5, and 89901 of, and to add
Section 92034 to, the Education Code, and to amend Section 6252 of,
and to add Section 6254.30 to, the Government Code, relating to
public records.
LEGISLATIVE COUNSEL'S DIGEST
SB 218, Yee. Public records: state agency: auxiliary
organizations.
The California Public Records Act requires state and local
agencies to make their records available for public inspection and to
make copies available upon request and payment of a fee unless those
records are exempt from disclosure. The act defines the terms "local
agency" and "state agency" for purposes of the act.
This bill would revise the definition of the term "local agency"
to additionally include specified auxiliary organizations established
for the purpose of providing support services and specialized
programs for the general benefit of a community college.
This bill would revise the definition of the term "state agency"
to additionally include specified auxiliary organizations and other
specified entities.
The bill would exempt from disclosure under the California Public
Records Act the names of individuals who donate to specified entities
if those individuals request anonymity. However, the bill would
provide that this exemption does not apply if a donor, in a quid pro
quo arrangement, receives anything that has more than a nominal value
in exchange for the donation.
This bill would also provide that it is the intent of the
Legislature to reject the court's interpretation of state law
regarding the application of the act to auxiliary organizations, such
as the CSU Fresno Association, at issue in California State
University, Fresno Assn., Inc. v. Superior Court (2001) 90
Cal.App.4th 810. The bill would also provide that it is the intent of
the Legislature that specified organizations be included in the
definition of "state agency" solely for the purposes of the
California Public Records Act.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 72670 of the Education Code is amended to read:
72670. The governing board of a community college district may
establish auxiliary organizations for the purpose of providing
supportive services and specialized programs for the general benefit
of its college or colleges. As used in this article, "auxiliary
organization" may include, but is not limited to, the following
entities:
(a) Any entity in which any official of a community college
district participates as a director as part of his or her official
position.
(b) Any entity formed or operating pursuant to Article 4
(commencing with Section 76060) of Chapter 1 of Part 47.
(c) Any entity that operates a commercial service for the benefit
of a community college or district on a campus or other property of
the district.
(d) Any entity whose governing instrument provides in substance
both of the following:
(1) Its purpose is to promote or assist a community college or
district, or to receive gifts, property, and funds to be used for the
benefit of the community college or district or any person or
organization having an official relationship therewith.
(2) Any of its directors, governors, or trustees are either
appointed or nominated by, or subject to, the approval of the
governing board of the district, an official of the district, or
selected, ex officio, from the membership of the student body or the
faculty or the governing board or the administrative staff of the
district.
(e) Any entity that is designated as an auxiliary organization by
the district governing board.
(f) Nothing in this section shall require an entity described in
this section to disclose information that is exempt from disclosure
pursuant to Section 99040, Section 3426.1 of the Civil Code, Section
1060 of the Evidence Code, or subdivision (k) of Section 6254 of the
Government Code.
SEC. 2. Section 72670.5 of the Education Code is amended to read:
72670.5. (a) The Board of Governors of the California Community
Colleges may establish auxiliary organizations for the purpose of
providing supportive services and specialized programs for the
general benefit of the mission of the California Community Colleges.
(b) As used in this article:
(1) "Auxiliary organization" may include, but is not limited to,
the following entities:
(A) Any entity whose governing instrument provides in substance
both of the following:
(i) That its purpose is to promote or assist the Board of
Governors of the California Community Colleges, or to receive gifts,
property, and funds to be used for the benefit of the Board of
Governors of the California Community Colleges or any person or
organization having an official relationship therewith.
(ii) That any of its directors, governors, or trustees are either
appointed or nominated by, or subject to, the approval of the Board
of Governors of the California Community Colleges or an official of
the California Community Colleges, or selected, ex officio, from the
membership of the Board of Governors or the administrative staff of
the California Community Colleges.
(B) Any entity which, exclusive of the foregoing subdivisions of
this section, is designated as an auxiliary organization by the Board
of Governors of the California Community Colleges.
(2) "District governing board" includes the Board of Governors of
the California Community Colleges, unless the context requires
otherwise.
(c) Any agreement between the Board of Governors of the California
Community Colleges and an auxiliary organization established
pursuant to this section shall provide for full reimbursement from
the auxiliary organization to the Board of Governors of the
California Community Colleges for any services performed by the
employees of the board under the direction of, or on behalf of, the
auxiliary organization.
(d) Nothing in this section shall require an entity described in
this section to disclose information that is exempt from disclosure
pursuant to Section 99040, Section 3426.1 of the Civil Code, Section
1060 of the Evidence Code, or subdivision (k) of Section 6254 of the
Government Code.
SEC. 3. Section 89901 of the Education Code is amended to read:
89901. As used in this article, the term "auxiliary organization"
includes the following entities:
(a) Any entity in which any official of the California State
University participates as a director as part of his or her official
position.
(b) Any entity formed or operating pursuant to Article 1
(commencing with Section 89300) of Chapter 3.
(c) Any entity that operates a commercial service for the benefit
of a campus of the California State University on a campus or other
property of the California State University.
(d) Any entity whose governing instrument provides in substance
both of the following:
(1) That its purpose is to promote or assist any campus of the
California State University, or to receive gifts, property, and funds
to be used for the benefit of such campus or any person or
organization having an official relationship therewith.
(2) That any of its directors, governors, or trustees are either
appointed or nominated by, or subject to, the approval of an official
of any campus of the California State University, or selected, ex
officio, from the membership of the student body or the faculty or
the administrative staff of campus.
(e) Any entity whose governing instrument provides in substance
both of the following:
(1) That its purpose is to promote or assist the trustees of the
California State University, or to receive gifts, property, and funds
to be used for the benefit of the trustees of the California State
University or any person or organization having an official
relationship therewith.
(2) That any of its directors, governors, or trustees are either
appointed or nominated by, or subject to, the approval of the
trustees or an official of the California State University, or
selected, ex officio, from the membership of the trustees or the
administrative staff of the California State University.
(f) Any entity which, exclusive of the foregoing subdivisions of
this section, is designated as an auxiliary organization by the
trustees.
(g) Nothing in this section shall require an entity described in
this section to disclose information that is exempt from disclosure
pursuant to Section 99040, Section 3426.1 of the Civil Code, Section
1060 of the Evidence Code, or subdivision (k) of Section 6254 of the
Government Code.
SEC. 4. Section 92034 is added to the Education Code, to read:
92034. As used in this article, the term "auxiliary organization"
includes the following entities:
(a) An entity in which an official of the University of California
participates as a director as part of his or her official duties.
(b) An entity that operates a commercial service for the benefit
of a campus of the University of California on a campus or other
property of the University of California.
(c) An entity whose governing instrument provides in substance
both of the following:
(1) That its purpose is to promote or assist any campus of the
University of California, or to receive gifts, property, and funds to
be used for the benefit of that campus or any person or organization
having an official relationship therewith.
(2) That any of its directors, governors, or trustees are either
appointed or nominated by, or subject to the approval of, an official
of any campus of the University of California, or serve, ex officio,
from the membership of the student body or the faculty or the
administrative staff of a campus.
(d) Any entity whose governing instrument provides in substance
both of the following:
(1) That its purpose is to promote or assist the Regents of the
University of California, or to receive gifts, property, and funds to
be used for the benefit of the Regents of the University of
California, or any person or organization having an official
relationship therewith.
(2) That any of its directors, governors, or trustees are either
appointed or nominated by, or subject to, the approval of the Regents
or an official of the University of California, or serve, ex
officio, from the membership of the regents or the administrative
staff of the University of California.
(e) An entity that is designated by the regents as an auxiliary
organization of the University of California.
(f) Nothing in this section shall require an entity described in
this section to disclose information that is exempt from disclosure
pursuant to Section 99040, Section 3426.1 of the Civil Code, Section
1060 of the Evidence Code, or subdivision (k) of Section 6254 of the
Government Code.
SEC. 5. Section 6252 of the Government Code is amended to read:
6252. As used in this chapter:
(a) "Local agency" includes a county; city, whether general law or
chartered; city and county; school district; municipal corporation;
district; political subdivision; or any board, commission or agency
thereof; an entity described in subdivision (b), (d), or (e) of
Section 72670 of the Education Code; other local public agency; or
entities that are legislative bodies of a local agency pursuant to
subdivisions (c) and (d) of Section 54952.
(b) "Member of the public" means any person, except a member,
agent, officer, or employee of a federal, state, or local agency
acting within the scope of his or her membership, agency, office, or
employment.
(c) "Person" includes any natural person, corporation,
partnership, limited liability company, firm, or association.
(d) "Public agency" means any state or local agency.
(e) "Public records" includes any 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. "Public records" in the custody of, or
maintained by, the Governor's office means any writing prepared on or
after January 6, 1975.
(f) "State agency" means all of the following:
(1) (A) Every state office, officer, department, division, bureau,
board, and commission or other state body or agency.
(B) An organization described in subdivision (b), (d), (e), or (f)
of Section 89901 of the Education Code.
(C) An organization described in subdivision (c), (d), or (e) of
Section 92034 of the Education Code.
(D) An organization described in paragraph (1) of subdivision (b)
of Section 72670.5 of the Education Code.
(2) "State agency" does not include those agencies provided for in
Article IV (except Section 20 thereof) or Article VI of the
California Constitution.
(g) "Writing" means any handwriting, typewriting, printing,
photostatting, photographing, photocopying, transmitting by
electronic mail or facsimile, and every other means of recording upon
any tangible thing any form of communication or representation,
including letters, words, pictures, sounds, or symbols, or
combinations thereof, and any record thereby created, regardless of
the manner in which the record has been stored.
SEC. 6. Section 6254.30 is added to the Government Code, to read:
6254.30. Nothing in this chapter shall be construed to require
disclosure of the names of individuals who donate to an entity
described in paragraph (1) of subdivision (b) of Section 72670.5,
Section 72670, 89901, or 92034 of the Education Code, if those
individuals request anonymity. This exemption does not apply if a
donor, in a quid pro quo arrangement, receives anything that has more
than a nominal value in exchange for the donation.
SEC. 7. It is the intent of the Legislature in enacting this act
to construe and clarify the meaning and effect of existing law and to
reject the court's interpretation of state law regarding the
application of the California Public Records Act (Chapter 3.5
(commencing with Section 6250) of Division 7 of Title 1 of the
Government Code) to auxiliary organizations, such as the CSU Fresno
Association, at issue in California State University, Fresno Assn.,
Inc. v. Superior Court (2001) 90 Cal.App.4th 810.
SEC. 8. It is the intent of the Legislature in enacting this act
to clarify that an organization described in paragraph (1) of
subdivision (b) of Section 72670.5, Section 89901, or Section 92034
of the Education Code be included in the definition of "state agency"
solely for the purposes of the California Public Records Act
(Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1
of the Government Code).
SEC. 9. The Legislature finds and declares that Section 6 of this
act imposes a limitation on the public's right of access to writings
of public officials and agencies within the meaning of Section 3 of
Article I of the California Constitution. Pursuant to that
constitutional provision, the Legislature makes the following finding
to demonstrate the interest protected by this limitation and the
need for protecting that interest: The Legislature finds and declares
that in order to protect the privacy of individuals who donate to
specified entities and request anonymity, it is necessary to exempt
those individuals' names from disclosure.