BILL ANALYSIS Ó
SENATE GOVERNANCE & FINANCE COMMITTEE
Senator Lois Wolk, Chair
BILL NO: SCA 3 HEARING: 6/25/13
AUTHOR: Leno FISCAL: Yes
VERSION: 6/20/13 TAX LEVY: No
CONSULTANT: Ewing
OPEN RECORDS AND OPEN MEETING LAWS
(Revised)
Proposes constitutional amendments that require local
agencies to comply with open records and open meeting laws
and exempt compliance activities from state mandate claims.
Background and Existing Law
Section 3, Article I of the California Constitution states
that the people have the right of access to information
concerning the conduct of the people's business, and
therefore, the meetings of public bodies and the writings
of public officials and agencies shall be open to public
scrutiny (Proposition 59, 2004).
The Constitution further states that statutes, court rules,
or other authorities must be broadly construed if they
further the people's right of access, and narrowly
construed if they limit the right of access. A statute,
court rule, or other authority that limits the right of
access must be adopted with findings demonstrating the
interest protected by the limitation and the need for
protecting that interest.
Consistent with the Constitution, the Ralph M. Brown Act
(AB 339, Brown, 1953) and the California Public Records Act
(AB 1381, Bagley, 1968) establish standards for public
agencies' open and public meetings and public access to the
agencies' records.
The Ralph M. Brown Act requires the meetings of local
governments' legislative bodies to be "open and public,"
thereby ensuring the people's access to information so they
may retain control over the public agencies that serve
them.
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The Brown Act prohibits closed meetings, with specified
exceptions, and requires local agencies to post hearing
notices, provide the public with copies of materials
distributed during open meetings, and follow related
provisions to enhance public awareness and access to the
meetings and deliberations of local agencies' legislative
bodies.
Like the Brown Act, the California Public Records Act
directs, with specified exceptions, that public records be
open to inspection and that every person has the right to
inspect any public record. Public records are defined to
include any writing containing information related to the
conduct of the public's business prepared, owned, used, or
retained by any state or local agency.
The California Public Records Act includes provisions
specifying conditions for public agency compliance with the
Act, including the requirement to offer reasonable
assistance to persons making requests for information,
timeframes for compliance, providing written notice when a
request is denied, and similar provisions.
In 1979, the voters added Section 6 of Article XIIIB to the
Constitution, requiring the state to reimburse local
governments for the cost of new programs or higher levels
of service mandated by the Legislature or any state agency
(Proposition 4, 1979). The Constitution provides
exceptions for mandates requested by an affected local
agency, new crimes, and mandates established prior to
January 1, 1975.
In 1984, the Legislature created the Commission on State
Mandates. The Commission is a quasi-judicial body which
decides test claims alleging that the Legislature or a
state agency imposed a state-mandated local program. If
the Commission identifies a state-mandated program, it
adopts parameters and guidelines defining what activities
will be reimbursed, and adopts statewide cost estimates.
After receiving the adopted parameters and guidelines for a
mandate, the State Controller's Office (SCO) issues
claiming instructions to guide local agencies and school
districts in claiming reimbursable costs. The SCO
receives, pays, and audits reimbursement claims from local
agencies and school districts. The SCO can reduce
SCA 3 -- 6/20/13 -- Page 3
reimbursement claims it deems excessive or unreasonable.
The State Constitution requires the Legislature to either
appropriate funds in the budget bill to pay all outstanding
claims for a mandate, or suspend or repeal the mandate
(Proposition 1A, 2004). This requirement does not apply to
school and employee relations mandates.
In 2012, the voters approved Proposition 30, known as The
Schools and Local Public Safety Protection Act of 2012.
Among other provisions related to taxes and public safety
realignment, Proposition 30 added a section to the
Constitution exempting the Brown Act from state mandate
reimbursement requirements of Section 6, Article XIIIB.
In its review of reimbursable mandates, the Legislative
Analyst's Office found that the activities required by the
California Public Records Act, including provisions adopted
after 1975, are recognized "best practices" for local
governments to ensure public access to local agency records
and information. The Legislative Analyst's Office asked
whether it made sense, in light of the Constitutional
provisions to ensure public access to public records, for
the state to reimburse local agencies for activities that
should be their responsibility. In response, the
Legislature passed AB 76 (Assembly Committee on Budget,
2013), which recognized components of the California Public
Records Act as best practices and made local agency
compliance with the following provisions permissive:
Respond to a Public Records Act request within 10
days, except under unusual circumstances, as defined
(SB 143, Kopp, 1998).
Provide assistance with the request, which is
intended to facilitate accurate requests for people
who may not know how public records are labeled,
stored or identified (AB 1014, Papan, 2001).
Provide public records in an electronic format, if
they are in that format (AB 2799, Shelley, 2000).
Provide a written statement outlining the specific
exemption cited, if a Public Records Act request is
denied (AB 1381, Bagley, 1968; AB 2799, Shelley,
2000).
Prevent the disclosure of home phone numbers and
home address information for state and school
employees (AB 1040, Mays, 1993).
SCA 3 -- 6/20/13 -- Page 4
AB 76 (Assembly Committee on Budget, 2013) requires local
agencies that elect not to follow the components listed
above to make a public statement to that effect during an
open meeting.
Some policymakers want to clarify that local agencies are
responsible for the costs of compliance with open meeting
and open records provisions under the Constitution and
related statutes.
Proposed Law
Senate Constitutional Amendment 3 places a measure on the
ballot to amend the California Constitution to require
local agencies to comply with the California Public Records
Act and the Ralph M. Brown Act, and any subsequent
amendments that further the constitutional provisions on
public access to public agency meetings and records. SCA 3
exempts compliance with the California Public Records Act
and the Ralph M. Brown Act from state mandate claims.
State Revenue Impact
No estimate.
Comments
1. Purpose of the bill . Senate Constitutional Amendment 3
will place a measure on the ballot clarifying that local
agencies are responsible for the cost of complying with
constitutional provisions that guarantee public access to
the operations and records of local agencies and the
corresponding requirements of the California Public Records
Act and the Ralph M. Brown Act. SCA 3 will end
long-standing concerns over how costs for local agency
compliance with best practices for open government are
distributed between the state and local agencies. If
passed by the voters, SCA 3 will make clear that the state
is responsible for its costs under the Constitution and
open meeting and open records laws and local agencies are
responsible for their costs under the Constitution and open
meeting and open records laws.
SCA 3 -- 6/20/13 -- Page 5
2. Too open-ended . Senate Constitutional Amendment 3, if
passed by the voters, would obligate local agencies to
comply with the Ralph M. Brown Act and the California
Public Records Act, in their present form, and as amended
in the future, without the ability to seek reimbursement
from the state for new mandates. The provisions of SCA 3
contradict the vote of the people in passing Proposition 4
of 1979 that stipulated that the state must fund any new
requirements it imposes on local governments.
3. Amendment error . As amended on June 20, 2013, SCA 3
listed co-authors for the measure in its earlier form, as
it related to voting thresholds. A corrected version of
the bill was printed on 6-21-13, listing the appropriate
co-authors.
Support and Opposition (6/21/13)
Support : California Newspaper Publishers Association.
Opposition : Association of California Healthcare Districts