BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
AB 2853 (Gatto)
Version: April 13, 2016
Hearing Date: June 14, 2016
Fiscal: Yes
Urgency: No
NR
SUBJECT
Public records
DESCRIPTION
The California Public Records Act requires state and local
agencies to make their records available for public inspection
and to make copies available upon request unless the records are
exempt from disclosure, as specified.
This bill would authorize a public agency that posts a public
record on its Internet Web site to first refer a person that
requests to inspect or obtain a copy of the public record to the
public agency's Internet Web site where the public record is
posted.
BACKGROUND
The California Public Records Act (CPRA), enacted in 1968,
requires public disclosure of public agency documents. The CPRA
gives every person the right to inspect and obtain copies of all
state and local government documents not exempt from disclosure.
(Gov. Code Sec. 6253.) In recognition of the increased
reliance by public agencies on electronic documents, the
Legislature enacted AB 2799 (Shelley, Ch. 982, Stats. 2000),
which, among other things, required public agencies, upon
request, to disclose electronic records in an electronic format
in which the agency held information or in a format that had
been used by the agency to create copies for its own use or for
other public agencies.
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Since 2000, computer technology has advanced to provide open
format software whereby electronic documents created and
maintained by public agencies can be searched, indexed, and
redacted electronically. In 2009, in order to increase
government agency accountability, promote informed public
participation, and create economic opportunity through expanding
access to information online in open formats, the United States
Director of the Office of Management and Budget issued an Open
Government Directive to federal government agencies. (Peter R.
Orszag, Director, Executive Office of the President, Office of
Management and Budget, Memorandum for the Heads of Executive
Departments and Agencies, Open Government Directive, Dec. 8,
2009, p. 2.) This Directive provided guidelines to public
agencies responding to public requests under the Freedom of
Information Act and instructed federal government agencies to
"publish information online in an open format that can be
retrieved, downloaded, indexed, and searched by commonly used
web search applications." (Id.)
In 2013, President Obama signed Executive Order No. 13642, which
established the Open Data Policy and required all newly
generated government data to be made available in open,
machine-readable formats in order to "promote continued job
growth, Government efficiency, and the social good that can be
gained from opening Government data to the public." (Exec.
Order No. 13642, 78 Fed.Reg. 28111 (May 9, 2013).) This bill
would expressly authorize, under state law, a public agency's
ability to comply with the CPRA by posting any public record on
its Internet Web site and, in response to a request for a public
record listed on the Internet Web site, referring the person to
that Internet Web site where the public record is posted.
CHANGES TO EXISTING LAW
Existing law , the California Constitution, declares the people's
right to transparency in government. ("The people have the
right of access to information concerning the conduct of the
people's business, and therefore, the meetings of public bodies
and the writings of public officials and agencies shall be open
to public scrutiny....") (Cal. Const., art. I, Sec. 3.)
Existing law , the California Public Records Act (CPRA), governs
the disclosure of information collected and maintained by public
agencies. (Gov. Code Sec. 6250 et seq.) Generally, all public
records are accessible to the public upon request, unless the
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record requested is exempt from public disclosure. There are 30
general categories of documents or information that are exempt
from disclosure, essentially due to the character of the
information, and unless it is shown that the public's interest
in disclosure outweighs the public's interest in non-disclosure
of the information, the exempt information may be withheld by
the public agency with custody of the information. (Gov. Code
Sec. 6254.)
Existing law 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.
(Gov. Code Sec. 6253 (d).)
Existing law 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. (Gov. Code
Sec. 6253.1.)
Existing law 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 specified. Any reasonably segregable portion
of a record shall be available for inspection by any person
requesting the record after deletion of the portions that are
exempted by law. (Gov. Code Sec. 6253(a).)
This bill would provide that a public agency may comply with the
requirement immediately above by posting any public record on
its Internet Web site and, in response to a request for a public
record listed on the Internet Web site, referring the person to
that Internet Web site where the public record is posted.
This bill would require, if after the agency refers the person
to the Internet Web site, the person requesting the record
requests a copy of the record due to an inability to access or
reproduce the public record from the Internet Web site, the
agency shall, within 10 days, prepare a copy of the public
record, and promptly notify the person of the availability of
the public record.
This bill would make findings, as required by the Constitution
of California, indicating that this bill is necessary to protect
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the public's interest in ensuring both the transparency of, and
efficient use of limited resources by, public agencies.
COMMENT
1.Stated need for the bill
According to the author:
This bill responds an to abuse of the California Public
Records Act (CPRA) by private companies. These companies make
public record requests that require public agencies -
especially educational agencies and local school districts -
to retrieve, assemble, and provide records that the private
companies then sell to data brokers for targeted marketing
purposes or to market their own products. [?] While this is
certainly a legitimate business activity, 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, do this work itself
instead of having school districts and other public agencies
do it for them. Other companies 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.
2.Will create efficiencies for members of the public and
agencies with regard to CPRA requests
Under the California Public Records Act (CPRA), public agencies
must reply to a public record request within ten days. This
involves physically retrieving the records and reviewing them to
determine if any exemptions apply or if any other statutes
prohibit their disclosure. In addition, the agency must make
reasonable efforts to help the requester identify responsive
documents and assist him or her 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, the agency must justify the withholding and
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demonstrate that the record is subject to an exemption or that
the private 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 in
writing.
This bill would simplify the process for requesting disclosable
records by expressly authorizing agencies to post information on
the agency's Internet Web site, and would further authorize the
agencies to direct a person who is requesting information that
is posted online to the agency's Web site. In support, the City
of Fountain Valley writes, "cities across California already
struggle to comply with the 10 day response period associated
with the CPRA. Due to the increased volume of such requests,
many cities large and small have already had to hire additional
staff dedicated solely to review documents in association with
CPRA requests." The author argues that this bill will make the
CPRA process more efficient and cost effective for public
agencies and requesters by allowing members of the public to
access information without making a formal request and saving
agencies the time and cost associated with the requirements
associated with responding to requests for information that is
clearly not subject to an exemption.
The American Civil Liberties Union, in opposition, writes, "this
legislation could potentially limit the ability of vulnerable
populations to access records. Many people still do not have
access to computers, the Internet, or printers due to economic
hardship. Some requestors may also be prohibited from accessing
computers due to imprisonment or terms of probation. For these
individuals, a link to a website would be no better than denying
them records. Additionally, many people with certain medical
conditions would benefit from a paper copy. A person with a
visual impairment may have an easier time finding someone to
read to them from a paper record rather than arranging time to
share a computer. Individuals with learning disabilities, such
as dyslexia, are able to process text best if they can make
notes on the record."
Recognizing that not all individuals have access to a computer
or the Internet, this bill would require that the agency, within
10 days, prepare a copy of the public record for person who
requested such a copy due to an inability to access or reproduce
the record from the Internet Web site. The following technical
amendments would further clarify that the 10-day period begins
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when the initial request is made, and that regardless of whether
information was posted online, agencies must still make their
records physically available during office hours.
Author's amendments:
(f) is amended to read: In addition to maintaining records for
public inspection during the office hours of the state or
local agency, a state or local public agency may comply with
subdivision (a) by posting any public record on its Internet
Web site and, in response to a request for a public record
listed on the Internet Web site, directing the person to the
location on the Internet Web site where the public record is
posted. However, if after the agency directs the person to the
Internet Web site, the person requesting the record requests a
copy of the record due to an inability to access or reproduce
the public record from the Internet Web site, the agency shall
promptly provide a copy of the public record pursuant to
subdivision (b) .
In support, the California Special Districts Association writes:
AB 2853 provides an additional transparency tool to local
agencies. By allowing local agencies to meet the requirements
of the [C]PRA by posting records on their website, AB 2853
promotes open government while reducing the costs on agencies
associated with [C]PRA compliance. AB 2853 takes a common
sense approach to providing members of the public with the
public documents they are requesting, promotes greater
transparency, and preserves valuable local agency resources
that can be dedicated to proving additional services to the
public.
3.Will arguably not affect practice author seeks to curb
The CPRA 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?"
(Gov. Code Sec. 6253(a).) Further, the CPRA defines a "person"
to include any natural person, corporation, partnership, limited
liability company, firm, or association, and "member of the
public" to mean any person, except a member, agent, officer, or
employee of a federal, state, or local agency acting within the
scope of his or her membership, agency, office, or employment.
(Gov. Code Sec. 6252.) Thus, in enacting the CPRA, the
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Legislature clearly intended that private, for profit companies
also have access to public information.
The author argues that this bill is aimed at curbing the
behavior of for private, for-profit companies who are exploiting
the CPRA for corporate data mining, or "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." The author points to Schoolie,
Inc., a private, for-profit company that made requests to
several school districts and local educational agencies
throughout the state. These requests sought 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,
among many other types of information. The author writes,
"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, 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."
At the time of this writing, Schoolie, Inc., while providing
detailed information about California schools online, does not
appear to be selling any product, subscription, or service via
its Internet Web site. In addition, the data presented by
Schoolie, Inc., appears to be more comprehensive than what an
individual would likely collect and analyze on his or her own,
and thus, may be very helpful to consumers seeking to make an
educated decision. Thus, the example the author points to as the
motivation, a private company collecting and analyzing public
records for profit, is arguably not outside the scope of the
CPRA, and may have been intended by its creators. In addition,
this bill would not preclude a for-profit business from making
records requests, nor would it authorize an agency to deny a
request from a for-profit company if that information is
disclosable under existing laws.
However, the question raised by the author as to whether
comprehensive record requests by for-profit companies is
ultimately an abuse of public resources may very well be
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addressed by this bill to the extent that it would expressly
authorize agencies to largely circumvent the onerous response
process by posting disclosable records online which can be
accessed by individuals as well as businesses.
Support : Association of California School Administrators;
Association of California Water Agencies; California Special
Districts Association; City of Fountain Valley; City of
Lakewood; Glendale Unified School District ; League of
California Cities; Orange County Department of Education;
Riverside County Superintendent of Schools; Ventura Council of
Governments
Opposition : American Civil Liberties Union of California;
Electronic Frontier Foundation;
HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation :
SB 272 (Ch. 795, Stats. 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.
SB 1002 (Yee, 2012) would have enacted the California Open Data
Standard and required a state or local agency to make electronic
data or an electronic document available to the public in an
open format, as defined. That provision was subsequently
removed to instead require the State Chief Information Officer
to conduct a study to determine the feasibility of providing
electronic records in an open format. SB 1002 was vetoed by
Governor Brown because he believed that another legislative
report on electronic public records was unnecessary.
Prior Vote :
Assembly Floor (Ayes 78, Noes 0)
Assembly Appropriations Committee (Ayes 20, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
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