BILL ANALYSIS Ó AB 2853 Page 1 Date of Hearing: April 12, 2016 ASSEMBLY COMMITTEE ON JUDICIARY Mark Stone, Chair AB 2853 (Gatto) - As Amended March 18, 2016 As Proposed to be Amended SUBJECT: Public records KEY ISSUE: should a public agency that posts a public record on its internet website be authorized to direct a person requesting such a record to the internet website, so long as the agency provides copies of the records, for an appropriate fee, to any person who cannot access or reproduce them from the agency's internet website? SYNOPSIS This bill would authorize a public agency that posts any of its public records on its Internet website to refer a person requesting such records to the website. Under the California Public Records Act (CPRA), public agencies must reply to a public records request within ten days, which entails not only physically retrieving the records but also reviewing them to determine which, if any, exemptions apply, or if any other statutes prohibit their disclosure. It is much more efficient, both for the agency and the requester, to post records that have already been deemed disclosable online and refer any requests to AB 2853 Page 2 those online records, rather than require an agency to physically retrieve and make disclosure determinations for each new request. Where records are clearly disclosable and available in electronic form, it is also much easier for the requester to access and download the records immediately without having to make a formal request - which can only be done during the agency's business hours - and then wait up to ten days for a response. Of special concern to the author, however, are private, for-profit businesses and data brokers that demand that public agencies retrieve, assemble, and copy records, many of which are otherwise available to businesses if they were to expend their own efforts. These businesses typically sell information culled from the records for targeted marketing and related purposes. For reasons discussed in the analysis, this bill will not necessarily address that bigger problem. Nonetheless, this common sense measure will allow an agency, when appropriate, to tell the requester that the records requested are available on the agency's website. If the requester lacks the ability to access the Internet website or reproduce records from the website, then the agency would still be required, as is the case under existing law, to promptly provide copies of records upon payment of a fee representing the direct costs of reproduction. The bill is supported by the League of California Cities, the Association of School Administrators, the Orange County Department of Education, and the Glendale Unified School District. There is no known opposition to this bill. An amendment that the author will take today in this Committee is already reflected in the summary and analysis below. SUMMARY: Authorizes a public agency that posts a public record on its Internet website to refer a person that requests to inspect or obtain the record to the agency's website, as specified, and makes required findings. Specifically, this bill: 1)Allows a public agency to comply with certain disclosure AB 2853 Page 3 requirements under the California Public Records Act (CPRA) by posting any public record on its Internet website and, in response to a request for a public record listed in the Internet website, referring the requester to the Internet website where the public record is posted. However, if after the agency refers the requester to the Internet website, the person requesting the public record asks for a copy of any such public record, due to an inability to access or reproduce the public records from the Internet website, the agency shall within 10 days prepare a copy of the public record, at the requester's expense, and promptly notify the requester of the availability of the public record. 2)Makes findings, as required by the California Constitution, that this change to the CPRA is necessary to protect the public's interest in ensuring both the transparency of, and efficient use of limited resources by, public agencies. EXISTING LAW: 1)Provides that all public records are open to public inspection, unless expressly exempted by a provision of the Public Records Act or another statute. (Government Code Section 6250 et seq.) 2)Provides that public records are open to inspection at all times during the office hours of the state or local agency and every person has a right to inspect any public record, except as provided. Requires, generally, that the agency make the records promptly available to any person upon payment of fees covering direct costs of duplication, or a statutory fee if AB 2853 Page 4 applicable. (Government Code Section 6253 (a)-(b).) 3)Requires an agency, except under unusual circumstances, as defined, to respond to a public record request within ten days from receipt of the request, determine whether the request seeks copies of disclosable public records in the possession of the agency, and to promptly notify the person making the request of the agency's determination and the reasons justifying that determination. If the agency withholds requested records, in whole or in part, it must justify this withholding by demonstrating that the record in question is subject to an express exemption or that the public interest in confidentiality outweighs the public interest in disclosure. (Government Code Section 6253 (c); Section 6255.) 4)Permits, except as otherwise prohibited by law, a state or local agency to adopt requirements for itself that allow for faster, more efficient, or greater access to records than prescribed by the minimum standards set forth in the CPRA. (Government Code Section 6253 (d).) 5)Requires an agency to provide reasonable assistance to the person making the request by helping to identify records and information relevant to the request and suggesting ways to overcome any practical basis for denying access. (Government Code Section 6253.1.) FISCAL EFFECT: As currently in print this bill is keyed fiscal. COMMENTS: This bill responds to what the author sees as an abuse of the California Public Records Act (CPRA) by private AB 2853 Page 5 companies. These companies make public record requests that require public agencies - especially educational agencies and local school districts - to retrieve, assemble, and provide that the private companies then sell to data brokers for targeted marketing purposes or to market their own products. For example, the author has submitted to the Committee a copy of a public record request submitted by a private, for-profit company, Schoolie, Inc., to several school districts and local educational agencies throughout the state. These requests seek detailed information, going back several years, on student demographic and academic achievement, college preparation and placement numbers, the type and quantity of technology used throughout the school district, extracurricular activities offered and levels of participation, special education offerings and enrollments, and many other pieces of information. According to the company's website, it appears that Schoolie, Inc. uses this information to rank and evaluate schools and then sells those rankings and evaluations to interested parents. While this is certainly a legitimate business activity, the author maintains that these private, for-profit businesses are exploiting the CPRA, effectively using school district personnel and resources to find, retrieve, and assemble information to profit the company. Because this information is often available in other places - online and sometimes even on the school district's website - the private company could, and should, the author believes, do this work itself instead of having school districts and other public agencies do it for them. Other companies, according to the author and supporters, do not simply use this information to market their own products, but are engaged in "corporate data mining," that is, selling information culled from the records to any number of data brokers who in turn use it to market an array of products to schools, faculty, parents, and even students. This bill would authorize a public agency that posts any of its public records on its Internet website to refer a person requesting such records to the website. Under CPRA, public agencies must reply to a public record request within ten days, AB 2853 Page 6 which entails not only physically retrieving the records but also reviewing them to determine which, if any, exemptions apply, or if any other statutes prohibit their disclosure. In addition, the agency must make reasonable efforts to help the person making the request identify responsive documents and assist the person in refining the request so as to avoid a denial. The agency must allow the requester to inspect the records during its business hours and, upon request, make copies for the requester for a fee. If the agency withholds any requested documents, or parts thereof, the agency must justify the withholding by demonstrating that the records in question are subject to an express exemption or that the public interest in confidentiality clearly outweighs the public interest in disclosure. If the request was made in writing, the response justifying the denial must also be writing. According to the author, it would be much more efficient and cost-effective - both for the agency and most requesters - to post disclosable records online where a member of the public could access and download the documents without making a formal request and without requiring the agency to run through the required responses to a request. This bill would simply authorize a public agency to refer such requests to those online records, rather than physically retrieving the records and making disclosure determinations for each new request. This solution would also be easier for most requesters, though perhaps not satisfactory to private businesses seeking someone to assemble marketable information. Most members of the public could access and download the records immediately without having to make the request during the agency's business hours and then wait up to ten days for a response. Under existing law, of course, a person who already knows that records are posted online can already access those records without ever even contacting the agency, let alone making a formal public records request. However, where a requester does not know that such records exist online and makes a request, existing law, strictly construed, requires the agency to respond to the request according to prescribed procedures. This common sense measure AB 2853 Page 7 would simply allow the agency, when appropriate, to meet its requirements by telling the requester that those records are available on the agency's website. Those who cannot access or reproduce records from the Internet website could still obtain copies from the agency. Because not all members of the public have access to the Internet - or, if they do, may not be able to print or otherwise reproduce the requested records - this bill would require an agency to provide copies of records if the requester does not have access to the Internet records or cannot reproduce them. Of course, most people today have a computer or other device that can access to the Internet, or, if they do not, Internet access and printing capacity is generally available in public libraries. Nonetheless, there may be any number of reasons why a person could not access and reproduce records from an agency's website. This bill, as proposed to be amended, acknowledges this possibility. After posting records on its Internet website and referring the requester to that site, the agency will still be obligated under this bill to provide copies of the records to any person who cannot access or reproduce the records on the agency's Internet website. This bill makes improvements, but it may have minimal impact on the precipitating problem. To the extent that this bill is aimed at companies that exploit the labor and resources of public agencies for private profit, it may not be as effective as the author and supporters hope. To begin with, the bill only applies to records that are stored on the agency's Internet website, not records that might be readily available elsewhere, including elsewhere on the Internet, where a private company could locate and assemble the information through its own labor. Moreover, a fundamental principle of the CPRA is that the purposes for which records are sought are immaterial to whether AB 2853 Page 8 a request should be granted or denied. While the overriding premise of the CPRA is that people have a right to access public records in order to know how the government is conducting its business, a state agency has no right to inquire into why a person is requesting a particular record. In California, members of the public, including private business entities, can inspect government records for any reason or no reason at all. To the extent that the Legislature has anticipated improper uses and purposes, it has attempted to address the potential problem at the front end by exempting a record from disclosure. But once the determination has been made that a public record is available for public inspection - that is, it is not subject to an express statutory exemption - then that record must be disclosed regardless of the requester's motive. The CPRA's commitment to access is also reflected in a provision that requires the agency to reasonably assist the requester in locating responsive records and tailoring the request to avoid a denial. The problem of private companies abusing the CPRA's admirable openness and facility in order to turn public labor and resources into private profits is a bigger problem that may need a different solution, assuming one could be fashioned that will not unintentionally undermine the purposes of the CPRA. The Legislature should be mindful of burdens that the CPRA places on local government agencies, and not make those burdens any greater than they need to be; but there is no question that a commitment to open access to public records will entail costs and burdens. ARGUMENTS IN SUPPORT: According to the League of California Cities (League), "AB 2853 is a step in the right direction allowing cities to save staff time and recourses on producing documents that are readily accessible to the public." The League contends that cities across California "already struggle to comply with the10-day response period" required by CPRA. Because the volume of public record requests have increased in recent years, the League contends that "many cities large and small have already had to hire additional staff dedicated solely to review documents in association with CPRA requests." The AB 2853 Page 9 League also notes that "Proposition 42 places all of the costs squarely on the shoulders of local public agencies when responding to CPRA requests." The Association of California School Administrators (ACSA) supports this bill because they believe that it will address, at least partly, its concerns about "the increased requests for public information from non-profit companies that include the names of employees with specific job titles, work contact information, salary ranges, and any other information they deem important for them." ACSA claims that these requests are made primarily by companies, both inside and outside of California, who then re-sell this information to others for marketing purposes. ACSA writes that while it supports the CPRA's fundamental premise that "members of the public have a right to access public records," it does not support providing this information "for the obvious express purpose of data mining for marketing purposes." ACSA adds that the "increase in requests has resulted in significant staff time and school resources so that others can make a profit. We believe that school resources must be protected in order to ensure our work of educating our students and providing services to our community." Proposed Author Amendments: The author wishes to take the following amendment in this Committee. This amendment is already reflected in the analysis. - On page 4 strike lines 5-10 and insert a new subdivision (f) which reads: (f) A public agency may comply with subdivision (a) by posting any public record on its Internet Website and, in response to a request for a public record listed in the Internet website, referring the requester to the Internet website where the public record is posted. However, if after the agency refers the AB 2853 Page 10 requester to the Internet website, the person requesting the public record asks for a copy of any such public record, due to an inability to access or reproduce the public records from the Internet website, the agency shall within 10 days prepare a copy of the public record pursuant to subdivision (b) and promptly notify the person of the availability of the public record. Pending and Recent Related Legislation: AB 2843 (Chau) would extend an existing provision of the CPRA that exempts from disclosure the home addresses and home phone numbers of state employees and employees of a school district or county office of education to include the employees personal cell phone number and personal email address. AB 2843 will be heard by this Committee today. AB 2498 (Bonta) would exempt from disclosure under the CPRA the name, home address, and images of a victim of human trafficking, and of the victim's immediate family, as specified. As amended in this Committee specifies that the exemption would not apply to any family members who were perpetrators of human trafficking. Passed out of this Committee on April 5, 2016, on a 10-0 vote and was sent to the Assembly Committee on Privacy and Consumer Protection. AB 2611 (Low), as proposed to be amended, exempts from disclosure, in response to a CPRA request, audio and video recordings that depict death or serious bodily injury in a morbid, sensational, and offensive manner, or that show a peace officer being killed in the line of duty when those recordings are within law enforcement investigative files. AB 2611 will be heard by this Committee today. AB 1520 (Stone) amends a provision of the CPRA that exempts from disclosure certain personal information about customers of local utility agencies to specify that this exemption only applies to AB 2853 Page 11 the personal information residential utility customers, and by implication not to commercial, industrial, or public agency customers. This is a two-year bill awaiting hearing in the Senate Judiciary Committee. SB 272 (Chapter 795, Stats. of 2015) requires local agencies, excluding local educational agencies and school districts, to catalog, and make publicly available under the CPRA, information about their data systems. REGISTERED SUPPORT / OPPOSITION: Support Association of California School Administrators Glendale Unified School District League of California Cities Orange County Department of Education Opposition None on file AB 2853 Page 12 Analysis Prepared by:Thomas Clark / JUD. / (916) 319-2334