BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
SB 1002 (Yee)
As Amended April 9, 2012
Hearing Date: April 17, 2012
Fiscal: Yes
Urgency: No
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SUBJECT
Public Records: Electronic Format
DESCRIPTION
This bill would prohibit a public agency, when responding to a
request for disclosure of electronic documents pursuant to the
California Public Records Act (CPRA), from charging the
requestor for data extraction when a public agency asserts an
exemption from disclosure under the CPRA, or for extraction,
compilation, programming or conversion of data to a different
medium if the task is initiated by, and performed for the
benefit of, the public agency. This bill would authorize a
public agency to provide a searchable electronic record, as
specified. This bill also would establish the California Open
Data Standard, which would provide open format standards for
public agencies that are required to make electronic data
available to the public.
BACKGROUND
In recognition of the increased reliance by public agencies on
electronic documents, the Legislature enacted AB 2799 (Shelley,
Ch. 982, Stats. 2000), which, among other things, required
public agencies, upon request, to disclose electronic records in
an electronic format in which the agency held information or in
a format that had been used by the agency to create copies for
its own use or for other public agencies.
Since 2000, computer technology has advanced to provide open
format software whereby electronic documents created and
maintained by public agencies can be searched, indexed, and
(more)
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redacted electronically. In 2009, in order to increase
government agency accountability, promote informed public
participation, and create economic opportunity through expanding
access to information online in open formats, the United States
Director of the Office of Management and Budget issued an Open
Government Directive to federal government agencies. (Peter R.
Orszag, Director, Executive Office of the President, Office of
Management and Budget, Memorandum for the Heads of Executive
Departments and Agencies, Open Government Directive, Dec. 8,
2009, p. 2.) This Directive provided guidelines to public
agencies responding to public requests under the Freedom of
Information Act and instructed federal government agencies to
"publish information online in an open format that can be
retrieved, downloaded, indexed, and searched by commonly used
web search applications." (Id.)
This author-sponsored bill would implement an "Open Government
Directive" on the state level by establishing the Open Data
Standard for public access to electronic public records. This
bill also would prohibit public agencies from charging the
requestor of electronic records for data extraction, data
compilation, programming or conversion of data, as specified.
CHANGES TO EXISTING LAW
Existing law , the California Public Records Act (CPRA), governs
the disclosure of information collected and maintained by public
agencies. (Gov. Code Sec. 6250 et seq.) Generally, all public
records are accessible to the public upon request, unless the
record requested is exempt from public disclosure. (Gov. Code
Sec. 6254.) There are 30 general categories of documents or
information that are exempt from disclosure, essentially due to
the character of the information, and unless it is shown that
the public's interest in disclosure outweighs the public's
interest in non-disclosure of the information, the exempt
information may be withheld by the public agency with custody of
the information.
Existing law requires a public agency to make non-exempt
electronic public records available in any electronic format in
which it holds the information or, if requested, in an
electronic format used by the agency to create copies for its
own or other agency's use. (Gov. Code Sec. 6253.9(a)(1).)
Existing law authorizes a public agency to charge to the
requestor the direct cost of producing the electronic public
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record. (Gov. Code Sec. 6253.9(a)(2).)
Existing law requires the requestor of the electronic public
record to pay the cost of producing a copy of the record,
including the cost to construct the record, and the cost of
programming and computer services necessary to produce a copy of
the record if the public agency produces the electronic record
only at regularly scheduled intervals or the request requires
data compilation, extraction, or programming to produce the
electronic record. (Gov. Code Sec. 6253.9(b).)
Existing law provides that a public agency is not required to
release an electronic record in the electronic form in which it
is held by the agency if its release would jeopardize or
compromise the security or integrity of the original record or
of any proprietary software in which it is maintained. (Gov.
Code Sec. 6253.9(f).)
This bill would prohibit a public agency from charging to the
requestor of an electronic public record the cost for either of
the following:
data extraction, as defined, when the agency is exercising an
exemption; or
extraction, compilation, programming, or conversion of data to
a different medium if the task is initiated by, and performed
for the benefit of, the agency.
This bill would authorize a public agency, if requested, to
provide an electronic record in a format in which the text in
the electronic record is searchable by commonly used software,
and the requestor of such requested electronic record must pay
the cost of converting the electronic record into a searchable
format, including the cost of programming and computer services
necessary to produce the electronic record.
This bill would enact the Open Data Standard, which would
require a public agency that is required by law to make
electronic information available to the public, including by
posting on the Internet, to provide the electronic information
in an open format.
This bill would define "open format" as all of the following:
the data or document can be located and downloaded by
open-source software, as defined, or public Internet
applications that are available for free, or both;
the data or the text in the document is machine readable and
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can be searched, indexed, organized, categorized, and is
otherwise automatically processable;
the data or document is available without restrictions that
would impede the use of the information;
the data or document maintains the integrity of databases and
all associated relationships or mappings between data or
content; and
the data or document provides data granularity, definitions,
and structured formats in the original quality available to
the state or local agency.
This bill would define "open-source software" to mean computer
software that is provided under a free software license that
permits users to study, change, improve, and distribute the
software.
This bill would not require a public agency to convert data or a
document into an open format.
This bill would not require a public agency to update its
software or hardware to comply with the Open Data Standard.
COMMENT
1. Stated need for the bill
The author writes:
The main deficiency in current law is that there is not Ýa]
set standard for what format electronic data Ýis] to be
provided in. Oftentimes agencies will post online or turn
over via CPRA requests electronic data that is nothing more
than an image file. Meaning, the data or document cannot even
utilize basic functions such as searching or indexing. This
bill would create a set standard and ensure that when data
goes online it is useable.
Those requesting electronic data are also facing huge costs
for the "extraction" of data. When an agency wants to
exercise a voluntary exemption and prevent certain data from
being released they often charge the requester for extracting
the data, even though the agency is actually redacting data. .
. . Complaints are surfacing that agencies are pushing costs
unnecessarily on to requesters, which is deterring public
records requests, resulting in less government transparency.
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2. Electronic information to be provided in open data format
This bill would enact the Open Data Standard, which would
require public agencies, when required by law to make electronic
information available to the public, to provide electronic data
in an open format, as specified. Existing law requires a public
agency to make non-exempt electronic public records available in
any electronic format in which it holds the information or, if
requested, in an electronic format used by the agency to create
copies for its own or other agency's use. (Gov. Code Sec.
6253.9(a)(1).)
The author argues that this bill is necessary to provide public
access to computer records that are generated by public agencies
as searchable and sortable, but that are currently being
disclosed electronically and online as non-searchable,
fixed-format documents. The author argues that the federal
government has already instructed federal agencies to provide
public access to electronic agency information in an open
format. Indeed, in an effort to increase government agency
accountability and promote informed public participation, the
United States Director of the Office of Management and Budget
issued an Open Government Directive (Directive) to federal
public agencies responding to public requests under the Freedom
of Information Act. (See Peter R. Orszag, Director, Executive
Office of the President, Office of Management and Budget,
Memorandum for the Heads of Executive Departments and Agencies,
Open Government Directive, Dec. 8, 2009.)
The Directive instructed federal government agencies to "publish
information online in an open format that can be retrieved,
downloaded, indexed, and searched by commonly used web search
applications." (Id. at p. 2.) The Directive defines "open
format" to mean "one that is platform independent, machine
readable, and made available to the public without restrictions
that would impede the re-use of that information."
This bill would require state and local agencies that are
required by law to provide electronic data to the public,
including on agency websites, to disclose or post such
electronic data in an open format. This bill would provide a
concise definition of "open format" to include:
the data or document can be located and downloaded by
open-source software, as defined, or public Internet
applications that are available for free, or both;
the data or the text in the document is machine readable and
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can be searched, indexed, organized, categorized, and is
otherwise automatically processable;
the data or document is available without restrictions that
would impede the use of the information;
the data or document maintains the integrity of databases and
all associated relationships or mappings between data or
content; and
the data or document provides data granularity, definitions,
and structured formats in the original quality available to
the state or local agency.
The American Federation of State, County and Municipal Employees
(AFSCME), a supporter of this bill, states that "Ým]any times
when government agencies post electronic records online or in
response to a request, the data is simply scanned as an image,
making Ýit] unable to be searched or sorted. This happens even
if the agency has the information in a format that can be
searched and sorted." AFSCME argues that this bill would
provide clear guidelines to public agencies to ensure that
electronic data provided by public agencies is in a format that
is accessible to the public.
League of California Cities is in opposition to this bill
because they believe it appears to facilitate research about
government information but would allow reformatting and
manipulation of that information for private, commercial use, at
public expense. In response the author argues that this bill
would implement the federal Open Government Directive, which is
aimed at providing the public, which necessarily includes
commercial businesses, greater access to government records to
increase public awareness and provide government accountability.
Staff notes that this bill would work with existing law to
protect the integrity of original public documents being
electronically disclosed in a format that allows the information
to be subsequently organized and categorized. Existing law
provides that an agency is not required to release an electronic
record in an electronic form in which it is held by the agency
if its release would jeopardize or compromise the security or
integrity of the original record. (Gov. Code Sec. 6253.9(h).)
Staff notes that this bill would not require a state or local
agency to convert into an open format data or records received
from other agencies or sources and would not require a public
agency to update its software or hardware to comply with the
Open Data Standard.
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3. Prohibitions on specified costs charged to electronic records
requestors
This bill would prohibit a public agency from charging the
requestor for data extraction, as defined, or extraction,
compilation, programming, or conversion of data to a different
medium if the task is initiated by, and performed for the
benefit of, the agency. Existing law provides that a public
agency may charge the requestor for the direct cost of producing
a copy of a record in an electronic format, as well as the cost
to construct a record and the cost of programming and computer
services necessary to produce the record. (Gov. Code Sec.
6253.9(a)(2), (b).)
The California District Attorneys Association is opposed to this
bill and argues that "the bill applies to nearly every case in
which an exemption is exercised, including the protection of
private and privileged information. Because this process can be
extremely expensive, SB 1002 represents the creation of yet
another cost levied on local agencies who already respond to
thousands of Public Records Act requests annually."
In response, the author argues that this bill is necessary to
ensure that agencies are not inflating document request charges
by including costs for extracting discretionary information from
public records. Some agencies have been charging for extracting
data not responsive to the record request, as well as the cost
of programming and computer services when the agencies use those
services for their own business purposes. Such inflated costs
for public records chills record requests, and ultimately
results in less government transparency. This bill would limit
the costs a public agency passes on to the requestor of an
electronic public record to exclude costs from data extraction
performed by the agency, when exercising an exemption from data
disclosure, and extraction, compilation, programming, or
conversion of data when those tasks are performed for the
benefit of the agency.
Support : American Federation of State, County and Municipal
Employees, AFL-CIO; Association of Public Safety Communications
Officials; California Newspaper Publishers Association;
Californians Aware; San Francisco Chief Innovation Officer
Opposition : California District Attorneys Association;
California Law Enforcement Association of Records Supervisors,
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Inc.; California State Sheriffs' Association; Chief Probation
Officers of California; League of California Cities
HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation : AB 2799 (Shelley, Ch. 982, Stats. 2000) See
Background.
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