BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
AB 169 (Maienschein)
Version: April 6, 2015
Hearing Date: June 16, 2015
Fiscal: Yes
Urgency: No
TMW
SUBJECT
Local government: public records: Internet
DESCRIPTION
This bill would require a local agency, except a school
district, that voluntarily posts a public record on its Internet
Web site to post the public record in an open format, as
specified.
BACKGROUND
The California Public Records Act (CPRA), enacted in 1968,
requires public disclosure of public agency documents. The CPRA
gives every person the right to inspect and obtain copies of all
state and local government documents not exempt from disclosure.
(Gov. Code Sec. 6253.) In recognition of the increased
reliance by public agencies on electronic documents, the
Legislature enacted AB 2799 (Shelley, Chapter 982, Statutes of
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
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
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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.)
In 2013, President Obama signed Executive Order No. 13642, which
established the Open Data Policy and required all newly
generated government data to be made available in open,
machine-readable formats in order to "promote continued job
growth, Government efficiency, and the social good that can be
gained from opening Government data to the public." (Exec.
Order No. 13642, 78 Fed.Reg. 28111 (May 9, 2013).)
This bill seeks to further the purpose of those orders by
requiring local agencies, other than school districts, to post
public records in an open format.
CHANGES TO EXISTING LAW
Existing law , the California Constitution, declares the people's
right to transparency in government. ("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....") (Cal. Const., art. I, Sec. 3.)
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 provides that public records are open to inspection
at all times during the office hours of the state or local
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agency and every person has a right to inspect any public
record, except as specified. Any reasonably segregable portion
of a record shall be available for inspection by any person
requesting the record after deletion of the portions that are
exempted by law. (Gov. Code Sec. 6253(a).)
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
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).)
Existing law defines "local agency" to include 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; other
local public agency; or entities that are legislative bodies of
a local agency. (Gov. Code Sec. 6252(a).)
This bill would require a local agency, except a school
district, that voluntarily posts a public record that is
described as "open" on its Internet Web site to post the public
record in an open format that meet all of the following
requirements:
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retrievable, downloadable, indexable, and electronically
searchable by commonly used Internet search applications;
platform independent and machine readable;
available to the public free of charge and without any
restriction that would impede the reuse or redistribution of
the public record; and
retains the data definitions and structure present when the
data was compiled, if applicable.
This bill would make various related legislative findings and
declarations.
COMMENT
1. Stated need for the bill
The author writes:
Key information maintained by local governments, from business
licenses to council agendas and budgets, are frequently kept
in file formats that make them difficult to find or analyze
using contemporary internet tools and other technology. The
current guidelines for posting these documents predate the
Xerox machine and thus are inadequate in the modern era.
The concept of "Open Data" describes data that are freely
available, machine-readable, and formatted according to
national technical standards to facilitate visibility and
re-use of published data. This concept of open data allows
access to standardized data that can be easily retrieved,
downloaded, sorted, searched, analyzed, redistributed and
re-used by individuals, business, researchers, journalists,
developers, and government to process, trend, and innovate
utilizing a single data table or combinations of data tables.
2. Electronic information to be provided in open data format
Existing law, the California Public Records Act (CPRA), 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).) This bill would require a local
agency, except a school district, that voluntarily posts a
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public record that is described as "open" on its Internet Web
site to post the public record in an open format, as specified.
The San Diego Regional Data Library, in support, argues that
"[t]oo many agencies discharge their obligations under the
[CPRA] or local open data mandates by releasing data in formats
that are difficult to use. Occasionally[,] the goal of
releasing in closed formats is to obscure the data, but more
often it is a combination of a lack of understanding of how data
is used combined with organizational inertia. Regardless of the
motivation, the result is that the data release[d] serves the
letter of the law but not the spirit of transparency."
Notably, the federal government has already instructed federal
agencies to provide public access to electronic agency
information in an open format. 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 to "publish
information online in an open format that can be retrieved,
downloaded, indexed, and searched by commonly used web search
applications." (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.) 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."
To that end, this bill would require a local agency, except a
school district, to post a public record in an open format that
meet all of the following requirements:
retrievable, downloadable, indexable, and electronically
searchable by commonly used Internet search applications;
platform independent and machine readable;
available to the public free of charge and without any
restriction that would impede the reuse or redistribution of
the public record; and
retains the data definitions and structure present when the
data was compiled, if applicable.
The Sunlight Foundation, in support, notes the elements listed
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above are broadly recognized to be the core of what it means to
make data open. As such, the Sunlight Foundation argues, this
bill "supports the public provision of good-quality, usable data
through ensuring that whatever contextual information was
originally available with the data remains present in its
public-facing publication."
The California Forward Action Fund (CFAF), also in support,
states that "[u]nderstanding that transparency can foster
accountability, fuel entrepreneurship and improve government
performance, more and more local governments in California are
embracing transparency by making previously inaccessible
government data available online for public scrutiny and use.
But the publication of data alone doesn't inherently make them
useful. Although local agencies are releasing more data than
ever before, a lot is lying fallow because they're often in an
unsearchable file format, such as PDF, making the information
difficult to find and analyze."
Staff notes that this bill would work in conjunction with
existing law that protects the integrity of original public
documents being electronically disclosed. Specifically,
existing law provides that an 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. (Gov. Code Sec.
6253.9(h).) Staff notes that this bill would not require a
local agency to convert into an open format data or records
received from other agencies or sources and does not require a
public agency to update its software or hardware to comply with
requirements in the bill. Rather, the bill would require a
local agency, except a school district, that voluntarily posts a
public record that is described as "open" on its Internet Web
site to post the public record in an open format. As noted by
the CFAF, "by requiring that public records published online by
local agencies be in a format that is searchable, downloadable
and machine-readable and available to the public free of charge,
this bill can help local governments unlock the power of open
data to improve results, reduce costs, and rebuild trust."
However, it is unclear as to what "open" refers in the context
of this bill - it appears from the text that the local agency
would have to label the posted public record as "open" in order
for this bill to apply. Additionally, local agencies may
maintain Internet resources, in general, rather than one
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Internet Web site devoted to providing open formatted public
records. To clarify that the bill would apply to Internet
resources, which may include an Internet Web site, Internet Web
page, or other resource on the Internet that is maintained by a
local agency and provides open data to the public, the author
offers the following amendments:
Author's amendments :
1. On page 2, in line 5, strike "A" and insert "If a local
agency, except a school district, maintains an Internet
Resource, including, but not limited to, an Internet Web
site, Internet Web page, or Internet Web portal, which the
local agency describes or titles as 'open data,' and the"
2. On page 2, in line 5, strike ", except a school
district, that"
3. On page 2, in line 6, strike "that is described as
'open'"
4. On page 2, in line 7, strike "its" and insert "that"
5. On page 2, in line 7, strike "Web site" and insert
"Resource, the local agency"
Support : Associated Builders and Contractors of California;
Building Owners and Managers Association of California;
California Building Industry Association; California Business
Properties Association; California Business Roundtable;
California Forward Action Fund; California League of Food
Processors; California Manufacturing & Technology Association;
California Taxpayers Association; Commercial Real Estate
Development Association, NAIOP of California; Family Business
Association; International Council of Shopping Centers; Los
Angeles County Business Federation; National Federation of
Independent Business; San Diego Regional Data Library; Sunlight
Foundation
Opposition : None Known
HISTORY
Source : Author
Related Pending Legislation :
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SB 573 (Pan, 2015), among other things, would create the
statewide open data portal, as defined, to provide public access
to data sets from agencies within the state. The bill would
require any data published on the statewide open data portal or
other open data portal operated by an agency to comply with all
state and federal privacy laws and regulations, and make the
statewide open data portal available, at no cost, to local
agencies interested in using the statewide open data portal to
publish its own data. SB 573 is currently in the Assembly Rules
Committee awaiting committee referral.
SB 272 (Hertzberg, 2015) would require each local agency to
create a catalog of enterprise systems, as defined, post that
catalog on the local agency's Internet Web site, and make the
catalog publicly available upon request in the office of the
clerk of the agency's legislative body. SB 272 is currently in
the Assembly Judiciary Committee.
AB 1215 (Ting, 2015), among other things, would enact the
California Open Data Act and require state agencies to make
public data, as defined, available on an Internet Web portal and
authorize a local government to adopt that standard. AB 1215
would require each state agency, on or before July 1, 2016, to
submit a strategic plan and a strategic enterprise application
plan, as specified, to the Chief Data Officer and to post the
reports on the Internet Web portal. AB 1215 would also require
specified legal policies for public data to be posted on the
Internet Web portal. AB 1215 is currently under submission in
the Assembly Appropriations Committee.
Prior Legislation :
SB 1002 (Yee, 2012) would have enacted the California Open Data
Standard and required a state or local agency to make electronic
data or an electronic document available to the public in an
open format, as defined. That provision was subsequently
removed to instead require the State Chief Information Officer
to conduct a study to determine the feasibility of providing
electronic records in an open format. SB 1002 was vetoed by
Governor Brown because he believed that another legislative
report on electronic public records was unnecessary.
AB 2799 (Shelley, Chapter 982, Statutes of 2000) See Background.
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Prior Vote :
Assembly Floor (Ayes 77, Noes 0)
Assembly Appropriations Committee (Ayes 17, Noes 0)
Assembly Local Government Committee (Ayes 9, Noes 0)
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