BILL ANALYSIS                                                                                                                                                                                                    



                                                                    AB 1707


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          Date of Hearing:  March 29, 2016


                           ASSEMBLY COMMITTEE ON JUDICIARY


                                  Mark Stone, Chair


          AB 1707  
          (Linder) - As Amended March 28, 2016


          SUBJECT:  Public records: response to request


          KEY ISSUE:  Should a government Agency's written denial of a  
          request for public RECORDS identify the types of records  
          withheld, and the specific exemptions that justify withholding  
          them? 


                                      SYNOPSIS


          Under the California Public Records Act (PRA), all public  
          records are open to public inspection unless a statutory  
          exemption provides otherwise.  When an agency withholds  
          requested records from public inspection, existing law requires  
          it to justify the withholding by "demonstrating" that the record  
          withheld is exempt under an express provision of the PRA.   
          According to the author, however, agencies often fail to  
          adequately "demonstrate" why records are withheld.  For example,  
          according to a recent report in the Fresno Bee, a school  
          district denied a request by simply stating that the records  
          requested were exempt under "one or more of the following  
          exemptions," and then proceeded to list five code sections from  
          the Government Code.  The author believes that in order to truly  
          "demonstrate" that a record is subject to an exemption, as  








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          existing law requires, the agency must do more than just list  
          applicable code sections; it must make some linkage between the  
          records or types of records withheld and the specific exemption  
          that applies to those records.  Without this linkage, persons or  
          entities making a PRA request will not know which exemptions  
          applied to which requested records, or why.  This bill,  
          therefore, would require the agency's written response to  
          identify at least the type or types of records withheld, and the  
          specific exemption that applies to each type.  The bill is  
          supported by the ACLU, the California Newspaper Publishers  
          Association, and the Electronic Frontier Foundation, among  
          others.  The bill is opposed by several individual cities and  
          counties, the associations that represent them, and other public  
          agencies.  Opponents claim that this measure will impose  
          significant costs and burdens on local agencies.  However,  
          several of the letters of opposition respond to the bill as  
          introduced or to earlier proposed amendments.  It is unclear to  
          what extent the recent amendments address all of the opposition  
          concerns, but they would seem to go a long way in that  
          direction.  The bill will move to the Assembly Committee on  
          Local Government should it advance out of this Committee. 


          SUMMARY:  Requires that a public agency's written denial of a  
          request for public records to provide a more specific  
          explanation when it withholds requested public records.   
          Specifically, this bill:  


          1)Provides that when a public agency withholds a record  
            requested pursuant to the Public Records Act, the written  
            response demonstrating that the record in question is exempt  
            under an express provision of the Public Records Act shall  
            identify the type or types of record withheld and the specific  
            exemption that justifies withholding that type of record. 


          2)Finds and declares that because people have the right of  
            access to information concerning the conduct of the people's  








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            business, requiring local agencies to identify which statutory  
            exemption applies to the type or types of record withheld  
            furthers the purpose the California Public Records Act. 


          EXISTING LAW:  


          1)Requires state and local agencies to make public records  
            available for inspection, unless an exemption from disclosure  
            applies.  (Government Code Section 5250 et seq.) 


          2)Requires an agency to justify withholding any record that is  
            responsive to a public records request by demonstrating that  
            the record in question is exempt under express provisions of  
            the Public Records Act or that on the facts of the particular  
            case the public interest served by not disclosing the record  
            clearly outweighs the public interest served by disclosure of  
            the record.   Specifies that a response to a written request  
            for inspection or copies of public records that includes a  
            determination that the request is denied, in whole or in part,  
            shall be in writing.  (Government Code Section 6255 (a)-(b).) 


          FISCAL EFFECT:  Unknown


          COMMENTS:  This bill seeks to strike a reasonable balance  
          between the public's right to inspect public records against the  
          ability of public agencies to withhold exempt documents without  
          imposing unreasonable and costly burdens on those public  
          agencies.  Under the California Public Records Act (PRA), all  
          public records are open to public inspection unless an express  
          statutory exemption provides otherwise.  When a public agency  
          withholds requested records from public inspection, existing law  
          requires the agency to justify its decision by "demonstrating"  
          that the record is exempt under an express provision of the PRA.  
            








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          The author and supporters of this bill, however, suggest that  
          the public agencies too often fail to adequately "demonstrate"  
          why records were withheld.  For example, according to a recent  
          report in the Fresno Bee, a school district denied the  
          newspaper's PRA request by asserting that the records requested  
          were exempt under "one or more of the following exemptions," and  
          then listed five Government code sections and subdivisions.   
          (Fresno Bee, March 5, 2016.)  Supporters of this bill -  
          including the California Newspaper Publishers Association  
          (CNPA), whose members must often make public record requests -  
          contend that this kind of response is all too common.  The  
          author believes that in order to truly "demonstrate" that a  
          record is subject to an exemption, as existing law requires, the  
          agency must do more than merely list applicable code sections;  
          it must make some linkage between the records or types of  
          records withheld and the specific exemption that applies to  
          those records.  Otherwise, the persons or entities making PRA  
          requests will not know which exemptions apply to which requested  
          records, or why.  This leaves the requester with little or no  
          information about how to refine a future request or,  
          alternatively, decide whether to seek a writ of mandate,  
          compelling the agency to provide the responsive records. 


          This bill, therefore, would flesh out the existing requirement  
          that an agency must "justify" a withholding by "demonstrating"  
          that the record in question is subject to an express exemption.  
          Under this bill, the agency would be required, in its written  
          response, to identify the type or types of records withheld, and  
          the specific exemption that applies to each type.  Such an  
          approach seems fully consistent with the implied intent of  
          existing law, for it is difficult to imagine how an agency could  
          "demonstrate" why a record was withheld if did not, at the very  
          least, identify which exemptions applied to the types of records  
          requested but withheld.  










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          Bills as Amended Does Not Require a "Log" or "List" of  
          Responsive Documents:  The primary contention of the opponents  
          of this bill is that it would require agencies to expend much  
          more time, effort, and money responding to PRA requests and less  
          time performing its essential public duties.  To a certain  
          extent, this criticism has been mitigated, at least in part and  
          for some opponents, by recent amendments.  As introduced, this  
          bill would have required an agency to identify each record (and  
          presumably each document) with a "title" and to list the  
          corresponding exemption that applied next to that "title."  This  
          approach did indeed seem impractical in many ways.  Not only  
          would it have been needlessly time consuming - especially where  
          an entire group or type of record was subject to the same  
          exemption - the very "title" of the document could have revealed  
          exempt information.  To be sure, agency staff responding to a  
          request could modify the "title" so as to redact or otherwise  
          shield exempted information, but this would be very time  
          consuming and of minimal public benefit.  In addition, not all  
          records or documents have obvious "titles," which would  
          effectively require agency staff to create a title.  Finally,  
          and perhaps most significantly, the requirement that an agency  
          list all document "titles" with corresponding exemptions would  
          seem to require the agency to create the equivalent of the  
          "privilege log" that is sometimes required in responses  
          discovery requests.  With one recently enacted exception,  
          however, the provisions of the PRA do not require an agency to  
          create records; the PRA only requires the agency to make  
          existing records in its possession available for inspection and  
          copying.  In 2001, the California Supreme Court held that the  
          existing language of the PRA does not require an agency to  
          create any kind of "log" or "list" of responsive but exempt  
          records.  The Court suggested that the Legislature could amend  
          the PRA to require such a list, but opined that as a policy  
          matter such a requirement "would be burdensome and of scant  
          public benefit."  (Haynie v. Superior Court (2001) 26 Cal. 4th  
          1061, 1074-1075.) 


          In response to opposition concerns about the "title" and "list"  








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          requirement, concerns which mirrored the Court's dictum in  
          Haynie, the author agreed to remove the "title" and "list"  
          requirement.  As recently amended, the bill simply requires that  
          the agency, in its written response, to identify the records or  
          types of records withheld and the specific exemption that  
          applies to each type.  That is, an agency could no longer list  
          statutory exemptions and say that "one or more" of the listed  
          exemptions applied to the records requested but withheld.  Under  
          this bill, an agency would need to state which exemptions  
          applied to which records or types of records requested.  This  
          would not require an agency to create a "log" listing every  
          record alongside a corresponding exemption.  It would, however,  
          require the agency to show which exemptions applied to which  
          types of records withheld.  For example: an agency could explain  
          that certain types of contracts requested were subject to the  
          trade secret exemption; or that the types of personnel records  
          requested were subject to the medical information exemption; or  
          that the correspondence requested was subject to the pending  
          litigation exemption, and so on.  This kind of written response  
          seems fully consistent with the intent of existing law, which  
          already requires an agency to "demonstrate" why records in  
          question were withheld, not merely list code sections that apply  
          to the request as a whole.  That the PRA already implicitly  
          requires more than a form letter (i.e. a response that  
          identifies the responsive documents at least by type) is also  
          suggested by the requirement in current that the agency make  
          reasonable efforts to assist the requester in refining his or  
          her request in order to identify responsive and disclosable  
          records.  (Government Code Section 6253.1.)  Without identifying  
          the records and the exemptions that apply to those records, the  
          agency would not have all of the information it would need to  
          help the requester formulate a successful request for records.   
          Clearly, the intent of the PRA is not only to make records  
          available for public inspection, but to assist persons in  
          finding relevant records and avoiding denials.  It is difficult  
          to imagine how a person could refine a request (with the  
          assistance of the agency) if he or she did not know precisely  
          why a prior request for specific documents was denied. 









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          Recent Amendments Appear to Strike Reasonable Balance:  As  
          recently amended, this bill seeks an appropriate balance to a  
          difficult practical problem.  On the one hand, it seems  
          unreasonably burdensome to require an agency to create a list  
          identifying each responsive record that has been withheld with  
          the specific exemption that applies placed next to the record.   
          On the other hand, it seems equally unreasonable, and  
          inconsistent with the purpose of the PRA, for an agency's  
          written response to consist of a form letter that merely lists  
          the statutory exemptions that may apply to the request as a  
          whole, without making any effort to break down the request and  
          explain which exemption applies to which types of responsive  
          records.  


          Without question, the PRA imposes burdens on public agencies by  
          requiring them to make all public records open to inspection,  
          unless the record is subject to an express exemption.  This not  
          only requires agency staff to locate and retrieve responsive  
          documents, it requires them to assess whether the records are  
          subject to an exemption, which may not always be obvious.  The  
          PRA even requires the agency, within reason, to assist the  
          requester in making a relevant and successful request.   
          Moreover, in the provision amended by this bill, the PRA  
          requires the agency to justify any withholding by  
          "demonstrating" that the record withheld is subject to an  
          express exemption.  These duties impose burdens and costs, and  
          the Legislature should be mindful of not adding to these burdens  
          and costs unless doing so serves an important public benefit.   
          Yet in enacting the PRA, the Legislature has already determined  
          that access to public records is an essential feature of a  
          democracy, even if it comes with some burdens and costs.  


          ARGUMENTS IN SUPPORT:  According to the author, it is sometimes  
          necessary and appropriate for a public agency to deny a public  
          records request when the records in question contain information  
          that is subject to a statutory exemption.  However, the author  








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          also believes that, in the event of a denial, the agency should  
          adequately explain why the request was denied.  Yet too often,  
          the author contends, "denial notifications only contain a list  
          of exemptions that may apply to the documents requested.  The  
          list does not include information detailing the types of  
          documents being withheld, or the exemptions that apply.  Under  
          the current system, an applicant is unable to examine for him or  
          herself whether the document should indeed be exempt."   


          ACLU supports this bill because it supports government  
          transparency.  As an organization that is "concerned with fair  
          and responsive government," the ACLU "frequently utilizes the  
          PRA to gather important information about public entities."   
          ACLU claims that government agencies "frequently respond to a  
          PRA request with a form letter listing various exemptions from  
          disclosure for all requested documents without stating whether  
          responsive documents exist, what they are, or which exemption  
          allegedly applies."  ACLU believes that "AB 1707 would give a  
          requester the information necessary to determine whether an  
          agency has records responsive to the request, and appropriately  
          advise the requester whether a legitimate exemption authorizes  
          withholding the records."  Finally, ACLU adds that the  
          clarification afforded by AB 1707 "is consistent with the design  
          and purpose of the PRA, would avoid unjustified obstructions,  
          and would eliminate costly and would eliminate costly litigation  
          in an already overburdened court system."   


          The California Newspaper Publishers Association (CNPA) similarly  
          stresses that, even though current law requires agencies to  
          identify specific exemptions that justify withholding a specific  
          record, the agencies often respond to a PRA request with a form  
          letter that lists various exemptions that the agency "believes  
          applies to the entire cache of requested records without  
          identifying which exemption applies to which record."  CNPA  
          claims that such a response "subverts the purpose of the act -  
          to give the people meaningful access to public records - and  
          forces the requester to go to court to learn why certain records  








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          were denied and which exemption applies."  In this respect,  
          CNPA, like many of the other supporters, suggests that in the  
          long run this bill may lessen the burden on agencies,  
          requesters, and courts by allowing requesters to get necessary  
          information without going to court to challenge a denial. 


          The Electronic Frontier Foundation (EFF) supports this bill for  
          substantially the same reasons as those noted above; it  
          additionally observes that AB 1707 will move the state closer to  
          what is required under the federal Freedom of Information Act  
          (FOIA), after which the CPRA is modeled.  Under federal law,  
          according to EFF, "it has become general practice to cite  
          specific exemptions for each redaction made in a public record."  
           EFF counters the arguments made by government agencies about  
          the added costs and burdens by suggesting that "the bill may  
          conserve recourses as well.  If a member of the public chooses  
          to challenge a CPRA request denial in court, this bill would  
          allow the requester to narrow the challenge to specific  
          documents, thus limiting the scope of litigation for both the  
          government and the requester." 


          ARGUMENTS IN OPPOSITION:  Several individual cities in  
          California, as well as the League of California cities, oppose  
          this bill because, they contend, it will pose "significant  
          operational challenges, increased costs and a potential for  
          increased litigation for cities already struggling to comply  
          with the California Public Records Act (CPRA)."  As noted above  
          in the analysis, most of the letters received by the Committee  
          appear to be in response to the bill as introduced or to a set  
          of earlier proposed amendments that are significantly different  
          than the most recent amendments.  Nonetheless, whatever form  
          additional requirements may take, the cities remind us that any  
          additional requirements will impose burdens and costs on already  
          limited resources.  Many of the letters submitted by the cities  
          point out that they "already struggle to comply with the 10-day  
          response period associated with the CPRA."  Moreover, cities  
          contend that in recent years the volume of requests have  








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          increased, so much so that "many cities large and small have  
          already had to hire additional staff dedicated solely to review  
          documents in association with CPRA requests."  Other objections  
          by the cities that submitted letters of opposition address the  
          provision, no longer in the bill, that would have required the  
          agency to supply a "log" or "list" of responsive titles as part  
          of the denial response.  The bill is also opposed by counties,  
          county associations, and miscellaneous local, regional, and  
          state entities for substantially the same reasons as those put  
          forth by the cities. 


          REGISTERED SUPPORT / OPPOSITION:




          Support


          ACLU


          California Newspaper Publishers Association


          Electronic Frontier Foundation  


          Firearms Policy Coalition 


          San Diegans for Open Government


          Socrata  


          Sierra Club








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          Opposition


          Association of California Water Agencies 


          California Association of Clerks and Election Officials 


          California Association of Counties 


          City Clerks Association of California 


          City of Burbank 


          City of Belvedere


          City of Chico 


          City of Chino 


          City of Chino Hills  










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          City of Coachella 


          City of Colton


          City of Corona 


          City of Costa Mesa  


          City of Cypress


          City of Danville 


          City of Desert Hot Springs 


          City of Downey  


          City of Dublin 


          City of Eastvale


          City of Glendora 


          City of Indian Wells 


          City of Laguna Hills  










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          City of Lakeport 


          City of Lakewood 


          City of La Quinta 


          City of Los Alamitos 


          City of Los Altos


          City of Martinez


          City of Menifee  


          City of Murrieta


          City of Napa 


          City of Newark 


          City of Newport Beach 


          City of Norco 


          City of Norwalk 










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          City of Ontario 


          City of Pinole 


          City of Poway


          City of Rancho Cucamonga 


          City of Riverbank 


          City of Rocklin 


          City of Roseville  


          City of Salinas 


          City of San Dimas 


          City of San Marino 


          City of Santa Maria


          City of Santa Monica  


          City of South Lake Tahoe 










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          City of Temecula 


          City of Torrance 


          City of Union City 


          League of California Cities 


          Sacramento Municipal Utility District (SMUD)


          San Joaquin Board of Supervisors 


          One Individual 




          Analysis Prepared by:Thomas Clark / JUD. / (916) 319-2334