BILL ANALYSIS Ó
AB 2853
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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
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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
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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
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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
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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,
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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
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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
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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
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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
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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
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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
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Analysis Prepared by:Thomas Clark / JUD. / (916) 319-2334