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