BILL ANALYSIS Ó
Senate Appropriations Committee Fiscal Summary
Senator Kevin de León, Chair
SB 570 (DeSaulnier) - Public records requests: copy charges.
Amended: April 16, 2013 Policy Vote: GO 11-0
Urgency: No Mandate: Yes
Hearing Date: May 23, 2013 Consultant: Mark McKenzie
SUSPENSE FILE. AS PROPOSED TO BE AMENDED.
Bill Summary: SB 570 would prohibit a public agency from
charging for copies of records that are available in portable
digital format (PDF), or consist of data extracted from a
database, as specified.
Fiscal Impact:
Unknown aggregate impact on over 200 state agencies by
eliminating authority to charge for certain electronic
records (General Fund and Various Special Funds). Costs to
individual agencies may be relatively minor.
Potential state-reimbursable mandate costs (General Fund).
The bill prohibits local agencies from charging for records
available in a PDF or records that consist of data
extraction. This may constitute a "higher level of service"
that is not recoverable by fees, and any local costs
associated with these activities could be subject to
reimbursement by the state. There are approximately 5,000
local agencies that would be subject to the requirements of
the bill. If 5% of them incurred costs of $1,000 in a given
year, and the Commission on State Mandates approves a claim,
General Fund costs would be $250,000 annually.
Background: Existing law, the Public Records Act, requires state
and local agencies to make public records open to inspection by
every person, with specified statutory exceptions, and to
provide copies of public records to any person, upon payment of
fees covering direct costs of duplication, or a statutory fee if
applicable. If a public record is in an electronic format,
public agencies are required to make that information available
in an electronic format, and in any other electronic format that
a public agency has used to create copies for its own use, upon
request. The charge for copies of an electronic record are
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limited to the direct cost of producing the record in an
electronic format, but if a request would require data
compilation, extraction, or programming to produce the record,
the cost for duplication includes the cost to construct the
record, and the cost of programming and computer services
necessary to produce a copy of the record.
Existing law, the State Payment Card Act, requires all state
agencies to accept payment made by means of a credit card or
other payment device, unless granted an exemption because those
forms of payment are not cost-effective, or if the terms of a
contract related to accepting those forms of payment are not
acceptable to an agency. Credit card vendors charge fees for
administering transactions, and depending on the vendor, these
fees can include a minimum charge for each transaction, and a
percentage of the amount charged in a transaction.
Proposed Law: SB 570 would prohibit a public agency from
charging for copies of records that are available in PDF, or
records that consist of data extracted from a database, if no
new programming is required to extract the data.
Staff Comments: Existing law requires state agencies to accept
credit card payments, but provides exceptions if that form of
payment is not cost-effective. SB 570 requires all public
agencies to accept credit card or other electronic forms of
payment for charges related to public records requests of 20
pages or less. If an agency charges $.20 per page, such a
transaction would be a maximum of $4.00. Depending on the fees
charged by credit card vendors, which could include both a
minimum per-transaction charge and a charge equal to a
percentage of the transaction, this requirement would degrade an
agency's ability to recover its administrative costs associated
with providing the records, and could result in an agency
providing records at a loss for very small requests of only a
few pages.
If a state or local agency has a public record in an electronic
format, it must make that record available to a person making a
public records request in that format, or any other format that
the agency uses to create copies for its own use or for
provision to other agencies. The charge for a copy of such a
record is limited to the cost of producing that record in an
electronic format. However, if the request for an electronic
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record requires data compilation, extraction, or programming to
produce the record, the person requesting a copy bears the full
cost of producing such a record, including the cost to construct
a record, and the cost of programming and computer services
necessary to produce a copy of the record. SB 570 would prohibit
a public agency from charging for copies of electronic records
available in PDF, or records that consist of data extracted from
a database, if new programming is not required to extract the
data.
By requiring state agencies to accept forms of payment for small
transactions that are not cost-effective, and eliminating the
ability of agencies to recover some costs associated with
fulfilling public records requests, this bill would result in a
loss of revenues to various state agencies that currently
offsets the administrative costs associated with those duties.
The magnitude of this loss is unknown. While it is likely that
losses for many state agencies would be minor, aggregate losses
for all state agencies combined could be significant.
Article XIII B, section 6, of the California Constitution
requires the state to reimburse local agencies for all costs
mandated by the state, including direct and indirect costs. The
Commission on State Mandates (Commission) issued a Statement of
Decision on May 11, 2011 (Case No.: 02-TC-10 and 02-TC-51),
determining that a number of provisions in the Public Records
Act impose reimbursable state-mandated programs on local
agencies. The Commission has not yet issues Parameters and
Guidelines, which provides guidance to local agencies seeking
reimbursement, or adopted a statewide cost estimate, which gives
the Legislature an estimate of the projected annual General Fund
costs associated with the mandate.
SB 570 would require local agencies to accept credit card or
other electronic forms of payment for charges related to public
records requests of 20 pages or less. Unlike state agencies,
there is no requirement in existing law that local agencies
accept credit cards or other electronic means for payments. As
a result, any local agencies that don't currently accept
electronic forms of payment would be required to contract with a
vendor for services, purchase equipment, and develop procedures
and protocols for providing this service. In addition, those
agencies that currently provide for electronic payment, but
limit acceptance of credit cards to payments of a certain size,
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would be subject to the same costs as state agencies related to
transactions that are not cost-effective. The bill would also
prohibit local agencies from charging for copies of certain
electronic records, as specified above. Considering previous
actions by the Commission on State Mandates, relative to
findings that certain activities required by the Public Records
Act constitute reimbursable state mandates, the provisions of
this bill are likely to create a "higher level of service" that
is subject to state reimbursement. General Fund costs
associated with these requirements are unknown, but likely
significant. Staff notes that the bill would apply to 58
counties, 472 cities, approximately 1,000 school districts, and
over 3,400 special districts. If 25% of these agencies each
incur $1,000 in costs in a year, which is the minimum threshold
to qualify for reimbursement, annual General Fund obligations
would be $1.25 million annually.
Staff notes that the Governor's 2013-14 Budget proposes to
suspend or defer a number of mandates, including the Public
Records Act mandates that were recently identified in the
above-mentioned Statement of Decision. When a mandate is
suspended, there is no obligation that local agencies comply
with the statutory requirements. The 2013-14 Budget proposes to
suspend over $400 million in existing state mandated local
programs, as well over $100 million in newly adopted mandates,
including the Public Records Act mandate. In addition, the
state owes local governments $900 million for mandate payments
that existed prior to 2004, which aren't projected to be repaid
from the General Fund until 2021. The requirements of SB 570
would also be subject to suspension, if the Commission
determines that local costs incurred as a result of the bill are
reimbursable.
Author amendments delete the provision to require payment by
credit card for requests of 20 or fewer pages of records.