BILL ANALYSIS Ó
AB 1707
Page 1
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
AB 1707
Page 2
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
AB 1707
Page 3
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.
AB 1707
Page 4
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.
AB 1707
Page 5
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"
AB 1707
Page 6
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.
AB 1707
Page 7
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
AB 1707
Page 8
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
AB 1707
Page 9
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
AB 1707
Page 10
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
AB 1707
Page 11
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
AB 1707
Page 12
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
AB 1707
Page 13
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
AB 1707
Page 14
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
AB 1707
Page 15
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