BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
AB 1520 (Committee on Judiciary)
Version: July 2, 2015
Hearing Date: July 14, 2015
Fiscal: Yes
Urgency: No
TMW
SUBJECT
Public Records: exemptions: residential utility customers
DESCRIPTION
This bill, under the California Public Records Act, would
clarify the exemption from public disclosure for specified
personal information of residential utility customers.
BACKGROUND
The California Public Records Act (CPRA) requires state and
local agencies to make public records available for inspection
by the public, with specified exceptions. The CPRA provides for
the confidentiality and non-disclosure of numerous classes of
information, including the residential address of an individual
in a record maintained by the Department of Housing and
Community Development, the residence or mailing address of any
person in any record of the Department of Motor Vehicles, and
the name, credit history, utility usage data, home address, or
telephone number of utility customers of local agencies. These
confidentiality provisions were enacted to protect individual
privacy in the wake of several instances of criminal activity
against individuals whose residential information was disclosed
by public agencies. (AB 1779 (Roos, Chapter 1213, Statutes of
1989); SB 448 (Sher, Chapter 276, Statutes of 1997).)
However, recent news articles charge that SB 448 was actually a
measure to weaken the CPRA. According to one article:
In the midst of a historic drought, Californians have no way
AB 1520 (Committee on Judiciary)
Page 2 of ?
of knowing who's guzzling the most water. For the source of
this legislation, look no further than Silicon Valley, where
the [C]ity of Palo Alto decided it needed to do more to
protect the privacy of the tech elite. "Palo Alto, even then,
was home to a number of very high-profile tech-related
residents," said Ariel Calonne, who was the city attorney at
the time. "We had fairly extensive databases that covered a
lot of sensitive information for a lot of noteworthy people,
and that became a concern for our utility managers."
In the name of privacy and security, the [C]ity of Palo Alto
backed legislation sponsored by Byron Sher, the local [S]tate
[S]enator. It allowed utilities to keep secret their
customers' "utility usage data" - that is, how much water and
power they were using. Other supporters included the
California Municipal Utilities Association and the League of
California Cities.
At the time, the Public Records Act required agencies that
operated utilities to make customers' bills public upon
request. During a 1991 drought, the press exposed California
water wasters by relying on data from water utilities. The
Los Angeles Times found that the top 100 water users in San
Diego gulped down 3,000 gallons or more a day, while the
average household used 349 gallons. Atop the list of the
biggest users: The San Diego Union-Tribune's publisher, Helen
Copley, who pumped an average of 10,203 gallons a day on her
9.5-acre La Jolla estate, which was tended by 10 full-time
gardeners. Dozens of those top water users complained that
publicizing their water use would expose them to security
concerns or ridicule, the L.A. Times reported.
In lobbying to change the law, proponents of the Sher measure
noted that utility bills include ratepayers' home addresses.
They argued that it was dangerous to make that information
public, citing the 1989 shooting of actress Rebecca Schaeffer,
who was killed by a stalker who got her address from
Department of Motor Vehicles records. The Legislature
restricted access after that.
State agencies routinely redact personal information in
releasing public records to address security concerns. But
proponents of the measure also argued that because private
utilities like PG&E did not have to release utility usage
data, public ones shouldn't have to either.
AB 1520 (Committee on Judiciary)
Page 3 of ?
Last year, the nonprofit First Amendment Coalition sued to get
water usage data for major business customers of the Coachella
Valley Water District in the Palm Springs area, where golf
courses are prodigious water users. Peter Scheer, the
coalition's executive director, argued that the 1997 law was
intended to protect the privacy only of people, not
corporations. Earlier this month, a judge ruled that
corporate water bills also should remain secret, saying that
while businesses don't have the same privacy rights as people,
the law nevertheless applies to all customers.
Under present law, there are a few exceptions that allow for
some limited public scrutiny of water bills. Last year, The
Center for Investigative Reporting used the public-official
exemption to reveal the water use of officials who weren't
living up to their own calls for conservation. Many water
agencies redacted the home addresses of the officials but
provided copies of their bills. The law also allows the
agencies to disclose customers' water use if they have
violated "utility usage policies." As water agencies restrict
use in response to Gov. Jerry Brown's recently announced
mandatory water cuts, scofflaws could find themselves in the
public eye. But only if the agencies feel like sharing that
information. (K. Mieszkowski, L. Williams, To Shield Tech
Executives, California's Biggest Water Users are Secret (Apr.
16, 2015)
[as of June 28,
2015].)
A Sacramento Bee article also noted that "[s]ome cities and
water agencies used to make usage data public, including the
Desert Water Agency and Coachella Valley Water District in
Southern California, which have some of the state's highest
per-capita water use. But after The Desert Sun newspaper in
March 2014 published who was pumping the most groundwater, both
agencies stopped. The First Amendment Coalition sued the
agencies to obtain usage data for major businesses. Desert
Water settled and agreed to make the numbers available; they
show that golf resorts and country clubs are among the biggest
users. Coachella Valley, however, refused - and won in court
last month." (Editorial Board, California Water Use Numbers
Should Flow Freely (Apr. 28, 2015) The Sacramento Bee
AB 1520 (Committee on Judiciary)
Page 4 of ?
[as of June 28, 2015].)
This bill seeks to expand disclosure by clarifying that the
confidentiality provisions under the CPRA for utility customers
pertain to residential customers of a local agency.
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 provides individuals an express right to privacy
specifically designed to "prevent government ... from collecting
and stockpiling unnecessary information about us and misusing
information gathered for one purpose in order to serve another
purpose." (Cal. Const., art. I., Sec. 1; White v. Davis (1975)
13 Cal.3d 757, 774.)
Existing law , the California Public Records Act (CPRA), governs
the public 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. (Gov. Code Sec. 6254 et seq.)
Existing law defines state agency, for purposes of the CPRA, to
include every state office, department, division, bureau, board,
and commission or other state body or agency, except for the
Legislature and the Judiciary. (Gov. Code Sec. 6252.)
Existing law exempts from public disclosure records that are the
residence address of any person contained in the Department of
Housing and Community Development, if the person has requested
confidentiality of that information, as specified, and the
AB 1520 (Committee on Judiciary)
Page 5 of ?
residence or mailing address of any person in any record of the
Department of Motor Vehicles. (Gov. Code Sec. 6254.1.)
Existing law exempts from public disclosure the name, credit
history, utility usage data, home address, and telephone number
of utility customers of local agencies, except that disclosure
of name, utility usage data, and the home address of utility
customers of local agencies shall be made available upon request
as follows:
to an agent or authorized family member of the person to whom
the information pertains;
to an officer or employee of another governmental agency when
necessary for the performance of its official duties;
upon court order or the request of a law enforcement agency
relative to an ongoing investigation;
upon determination by the local agency that the utility
customer who is the subject of the request has used utility
services in a manner inconsistent with applicable local
utility usage policies;
upon determination by the local agency that the utility
customer who is the subject of the request is an elected or
appointed official with authority to determine the utility
usage policies of the local agency, provided that the home
address of an appointed official shall not be disclosed
without his or her consent; and
upon determination by the local agency that the public
interest in disclosure of the information clearly outweighs
the public interest in nondisclosure. (Gov. Code Sec.
6254.16.)
Existing law exempts from public disclosure corporate financial
records and corporate proprietary information, including trade
secrets (Gov. Code Secs. 6254, 6254(k), 6254.15, 6276.44),
employee personal information (Gov. Code Secs. 6254(c), 6254.3,
6276.34, 6276.36), and information affecting public safety or
security (Gov. Code Secs. 6253.9, 6254(aa), (ab), 6254.19,
6254.23).
Existing law provides that information held by the CPUC, which
is deemed confidential under Public Utilities Code Section 583,
is not required to be disclosed. (Gov. Code Secs. 6276,
6276.36.)
Existing law provides that no information, unless specifically
required, furnished to the CPUC by a public utility, business
AB 1520 (Committee on Judiciary)
Page 6 of ?
that is a subsidiary or affiliate of a public utility, or
corporation that holds a controlling interest in a public
utility, shall be publicly available unless ordered to be public
by the CPUC in the course of a hearing or proceeding. (Pub.
Util. Code Sec. 583.) Any present or former employee of the
CPUC who divulges any confidential public utility information
provided to the CPUC is guilty of a misdemeanor. (Id.)
Existing law provides that any person may institute proceedings
for injunctive or declarative relief or writ of mandate in any
court of competent jurisdiction to enforce his or her right to
inspect or to receive a copy of any public record or class of
public records, and authorizes an award of court costs and
reasonable attorney fees to the plaintiff should the plaintiff
prevail in litigation, and those costs and fees are required to
be paid by the public agency, as specified (Gov. Code Secs.
6258, 6259(d)). The test for determining whether a record may
be withheld from public access is whether the public's interest
in disclosure is outweighed by the public's interest in
withholding disclosure of the record. (Gov. Code Sec. 6255.)
This bill would clarify that the public disclosure exemption for
the name, credit history, utility usage data, home address, and
telephone number of utility customers of local agencies applies
to residential customers.
This bill would provide legislative findings and declarations
that this bill furthers the purposes of the California
Constitution as it relates to the right of public access to the
meetings of local public bodies or the writings of local public
officials and local agencies, it is in the public's interest to
know the usage rates of industrial, institutional, and
commercial water and energy users, and, unlike residential
utility users, the privacy interests of industrial,
institutional, and commercial users are not sufficient to
justify granting an exemption from the public disclosure
requirements, in this context.
This bill would also make other technical and conforming
changes.
COMMENT
1. Stated need for the bill
AB 1520 (Committee on Judiciary)
Page 7 of ?
The author writes:
The four year drought in California has, among other things,
led to calls for water conservation reductions, especially for
urban users. Efforts by newspapers and others to determine
the largest water users within a district or city, in order to
determine whether they were meeting conservation goals, have
been stymied by Government Code Section 6254.16.
However, when Government Code Section 6254.16 was added to the
[California Public Records Act (CPRA)] in 1997, it was
primarily concerned about the privacy rights of individual,
residential users (see below). Commercial, industrial, and
institutional users do not have the same privacy concerns. AB
1520 would continue to protect the legitimate privacy
interests of residential users while serving the public's
interest in determining whether the largest users are meeting
conservation goals. Although the drought is the primary
impetus for this bill, it should be noted that this bill would
apply to all utilities, not just water.
2. Clarifying confidentiality of utility consumer's information
Under existing law, a utility consumer's name, credit history,
utility usage data, home address, and telephone number are
exempted from public disclosure under the CPRA. (Gov. Code Sec.
6254.16.) This information is required to be disclosed only in
the following circumstances:
to the utility customer's agent or authorized family member;
to an officer or employee of another governmental agency when
necessary for the performance of its official duties;
upon court order or the request of a law enforcement agency
relative to an ongoing investigation;
upon determination by the local agency that the utility
customer has used utility services in a manner inconsistent
with applicable local utility usage policies;
upon determination by the local agency that the utility
customer is an elected or appointed official with authority to
determine the utility usage policies of the local agency,
provided that the home address of an appointed official is not
disclosed without his or her consent; and
upon determination by the local agency that the public
interest in disclosure of the information clearly outweighs
the public interest in nondisclosure. (Gov. Code Sec.
6254.16.)
AB 1520 (Committee on Judiciary)
Page 8 of ?
Following below average precipitation since 2007, and record
high temperatures and record dry conditions last year,
California is in an unprecedented drought in which nearly all of
California has been affected. In January of this year, Governor
Brown declared a drought State of Emergency and directed state
officials to take all necessary actions to prepare for water
shortages. (California Drought, [as of
June 28, 2016].) The drought has called into question who is
using the most water in California. According to the author,
"[n]otwithstanding [Government Code] Section 6254.16, until
fairly recently some cities and water agencies used to make
usage data available. After all, the [California Public Records
Act (CPRA)] does not prohibit disclosure; it merely states
nothing requires the agency to disclose the information.
Agencies may disclose it if they like. However, as the drought
has prompted new requests for information, many cities and
agencies have stopped disclosing this information and they cite
Section 6254.16 as justification. For example, the Desert Water
Agency and Coachella Water District stopped providing this data
after a local newspaper, in March of 2014, published a list of
the top users. After the First Amendment Coalition filed a
lawsuit in August of 2014 to obtain usage data for large
consumers, the Desert Water Agency settled and made the data
available. . . . However, the Coachella Water District refused
to settle and eventually won in court, based on the exemption
provided in Government Code Section 9254.16." [Emphasis in
original.]
Recent allegations have been made that the legislation enacting
the current CPRA exemption for utility customer usage data
claimed to be about protecting individual privacy in the wake of
several tragedies involving the use of personal information
disclosed by public agencies, but in reality, according to
several news articles, the exemption was aimed at protecting
high-profile Californians using significant amounts of water
during the California drought in the early 1990s. Now, public
water districts are using the exemption to deny public access to
water usage of companies, such as golf courses, in order to
determine which entities are the biggest water wasters.
The First Amendment Coalition, in support, argues that "[t]he
public is entitled to know - indeed, the public has a need to
know - water usage data of commercial and other institutional
users. Access to this information is the only way for the
AB 1520 (Committee on Judiciary)
Page 9 of ?
public to assess the effectiveness of government water
conservation policies. The severe [drought] afflicting
California only underscores the importance of this access."
Further, the California Newspapers Association, Inc., in
support, asserts that this bill "would provide the public with a
better understanding of whether the policies of local agencies
are effective in achieving state mandated cut-backs and whether
enforcement is selective or is fairly applied."
This bill would clarify that the CPRA exemption for utility
customer information, including the usage, home address, and
telephone number of the customer, only applies to residential
customers. In this way, this CPRA exemption would no longer
apply to commercial utility customers.
3. Oppositions' concerns
The opposition, a coalition of business groups, asserts that
this bill "inappropriately makes industrial, institutional, and
commercial water and energy use public information. It is an
attempt to shame business under the guise of ensuring that large
users are meeting conservation goals." Further, the opposition
argues that current utility usage information privacy
protections serve an important purpose and protect commercial
users from their competitors gaining information and knowledge
regarding energy and water usage, which could be used by
competitors to determine production capacity and other
production information. The opposition argues that this usage
information serves no public purpose other than to exploit
business operations and to shame businesses who may be
considered unfavorable to some and provide an avenue for
protest. On this point in particular, the California
Manufacturers & Technology Association states that "[t]his bill
seeks to take advantage of the current and significant drought
that plagues California to eliminate a privacy right of
[commercial, industrial, and institutional (CII)] utility
customers they currently rely on to help protect information
regarding their processes from becoming public and available to
competitors who may be able to use utility data to gain
confidential information [which undermines] the privacy
interests of California manufacturers who are subject to
competition from out-of-state manufacturers who will not be
subject to similar data disclosures. California manufacturers
are particularly sensitive to the release of CII utility data in
light of the current drought as some may seek to use this
AB 1520 (Committee on Judiciary)
Page 10 of ?
information to publicly shame a company . . . [which, as]
evidenced by recent media reports, we already see this taking
place across California without context, forcing companies to
expend valuable resources to repair their reputation unjustly
disparaged by those seeking to push water conservation burdens
onto others."
The opposition further asserts that "current law also levels the
playing field between customers of private investor owned
utilities and utility customers of local agencies. In 1997, SB
448 (Sher) determined that utility usage information from local
agencies was not public information. Yet, this bill is
deliberately trying to overturn that, picking and choosing which
information should remain private. Most large commercial,
industrial, and institutional users of water and energy pay
based on volume they use. Under existing regulations, local
water districts, for example, are able to determine if
conservation goals have been met. If the conservation goal is
not met, the local agency can impose fines of up to $10,000 per
violation, and $500 per day thereafter for every day the
violation continues to enforce compliance." The opposition
states that it is also unclear how this bill, by making
commercial utility usage information public, would help reduce
water usage or energy consumption.
The California Municipal Utilities Association, in opposition,
states that "[u]nder existing law, private utilities are not
required to share their utility customer information upon public
request. Under SB 448 (Sher, Chp. 276, Statutes 1997), public
safety concerns and the issue of 'parity' between privacy rights
that apply only to private utility customers versus no such
protections for utility customers of a public agency prompted
the Legislature to ensure privacy protections are equal for all
utility customers. The current law provides essential limited
protections on the public's right to access individual customer
information, striking a balance between the right to public
information and the right for both residential and commercial
customer's usage information to be withheld. In lieu of the six
exceptions [under the CPRA], it is unclear why 'names, credit
histories, usage data, home addresses, or telephone numbers'
should only apply to residential customers when such protections
benefit all customers."
The Sacramento Municipal Utility District, in opposition, notes
that "investor-owned utilities are not subject to the [CPRA].
AB 1520 (Committee on Judiciary)
Page 11 of ?
Consequently, investor[-]owned utilities (70 [percent] of the
State) are able to protect the confidentiality of proprietary
business and customer information. This law would effectively
mean that commercial or industrial customers in our service
territory have less of a privacy interest in their commercial
data than their competitors located in the service territory of
an investor[-]owned utility."
In response, the author states that the coalition's argument
that the usage data would be improperly used by competitors is
essentially a trade secret argument, for which there is already
an exemption from disclosure under the CPRA. With respect to
the coalition's arguments, the author also writes: "They claim
that this would create an 'uneven playing field' because
investor-owned utilities (IOU) like PG&E are not 'exempted' from
[C]PRA request. . . . Actually, IOUs are not 'exempted' from the
[C]PRA; as a private enterprise they are not covered by [C]PRA
at all, so there is no need for an exemption. [C]PRA only
covers government entities. Also, IOUs are regulated by the
PUC, and PUC records are subject to [C]PRA."
As for the coalition's assertion that this bill would be an
effort to shame businesses, the author states that "[t]his is
partly true. But it is also a way for people, the press, and
policy-makers to get a handle on who the major users are, so as
to encourage and/or make policies accordingly." Regarding the
coalition's claim that the public has no interest in usage data
because the local agency can impose fines on users who violate
existing limits, the author asserts that "[i]t's true that the
local agency can impose a fine on a violator. In fact, if the
agency has determined that a user has violated a policy,
subdivision (d) of [Government Code] Section 6254.16 says that
the information is not exempt and should be disclosed. But
whether or not an agency has taken an action against a user, the
public still has a legitimate interest in usage data. After
all, the public may want to ensure that the agency is
appropriately taking against violators or failing to do so."
The author also states that "rebuttals to all of the above
include[:] (1) before 1997 this information was not exempted
and there is no evidence of any harm that resulted from it; (2)
even after 1997, some water districts and other agencies
voluntarily disclosed this information ([C]PRA exemptions, after
all, say that 'nothing requires' disclosures of these items, but
an agency may still disclose and many did until recently); (3)
AB 1520 (Committee on Judiciary)
Page 12 of ?
the legislative history for this section shows that it was
concerned with privacy of individuals. But for commercial
enterprises, there is no comparable privacy or confidentiality
interest - except perhaps trade secrets, which are already
exempted."
Support : California Newspaper Publishers Association;
Californians Aware; California Coastal Protection Network;
California League of Conservation Voters; Clean Water Action;
Community Water Center; Environmental Justice Coalition for
Water; Environmental Working Group; First Amendment Coalition;
Natural Resources Defense Council; Sierra Club California;
TreePeople
Opposition : African American Farmers of California;
Agricultural Council of California; American Pistachio Growers;
American Planning Association; Association of California Egg
Farmers; Automotive Specialty Products Alliance; Building Owners
and Managers Association of California; California Association
of Nurseries and Garden Centers; California Business Properties
Association; California Chamber of Commerce; California Citrus
Mutual; California Construction and Industrial Materials
Association; California Cotton Ginners Association; California
Cotton Growers Association; California Farm Bureau Federation;
California Fresh Fruit Association; California Grain and Feed
Association; California League of Food Processors; California
Manufacturers and Technology Association; California Municipal
Utilities Association; California Paint Council; California
Restaurant Association; California Seed Association; California
Tomato Growers Association; California Warehouse Association;
Consumer Specialty Products Association; Grocery Manufacturers
of America; Independent Energy Producers; International Council
of Shopping Centers; NAIOP - Commercial Real Estate Development
Association; National Federation of Independent Business;
National Hmong American Farmers; Nisei Farmers League; Pacific
Coast Rendering Association; Sacramento Municipal Utility
District; Western Plant Health Association; Wine Institute
HISTORY
Source : Author
Related Pending Legislation : SB 20 (Pavley, 2015) would repeal
existing law makes confidential reports of completion of water
AB 1520 (Committee on Judiciary)
Page 13 of ?
wells, and, instead, require the Department of Water Resources
to make the reports available to the public. SB 20 is currently
in the Assembly Water, Parks and Wildlife Committee.
Prior Legislation :
SB 448 (Sher, Chapter 276, Statutes of 1997) See Background.
AB 1779 (Roos, Chapter 1213, Statutes of 1989) See Background.
Prior Vote : Prior votes not relevant
**************