BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015 - 2016 Regular Session
SB 272 (Hertzberg)
Version: April 6, 2015
Hearing Date: April 21, 2015
Fiscal: Yes
Urgency: No
TMW
SUBJECT
The California Public Records Act: local agencies: inventory
DESCRIPTION
The California Public Records Act requires state and local
agencies to make public records available for inspection by the
public, with specified exceptions. This bill would require each
local agency to create a catalog of enterprise systems, as
defined, post that catalog on the local agency's Internet Web
site, and make the catalog publicly available upon request in
the office of the clerk of the agency's legislative body.
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.
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
SB 272 (Hertzberg)
Page 2 of ?
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 seeks to further the purpose of those orders by
requiring each local agency to create a catalog of enterprise
systems, post that catalog on the local agency's Internet Web
site, and make the catalog publicly available upon request in
the office of the clerk of the agency's legislative body. This
bill would define "enterprise system" to mean a
multidepartmental system or system that contains information
collected about the public and a system of record, which serves
as an original source of data within the agency.
This bill was heard by the Senate Governance and Finance
Committee on April 15, 2015, and passed out on a vote of 7-0.
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.)
SB 272 (Hertzberg)
Page 3 of ?
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
record requested is exempt from public disclosure. (Gov. Code
Sec. 6254.) 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.
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).)
Existing law requires a public agency to make non-exempt
electronic public records available in any electronic format in
which it holds the information or, if requested, in an
electronic format used by the agency to create copies for its
own or other agency's use. (Gov. Code Sec. 6253.9(a)(1).)
Existing law provides that a public agency is not required to
release an electronic record in the electronic form in which it
is held by the agency if its release would jeopardize or
compromise the security or integrity of the original record or
of any proprietary software in which it is maintained. (Gov.
Code Sec. 6253.9(f).)
This bill would require each local agency to create a catalog of
enterprise systems and make the catalog publicly available upon
request in the office of the clerk of the agency's legislative
body.
This bill would require that catalog to be posted in a prominent
location on the local agency's Internet Web site, if the agency
has an Internet Web site.
This bill would require the catalog to disclose a list of the
SB 272 (Hertzberg)
Page 4 of ?
enterprise systems utilized by the agency and, for each system,
including all of the following information:
current system vendor;
current system product;
a brief statement of the system's purpose;
a general description of categories, modules, or layers of
data;
the department that serves as the system's primary custodian;
how frequently system data is collected; and
how frequently system data is updated.
This bill would prohibit an interpretation of this bill that
would limit a person's right to inspect public records.
This bill would provide the following definitions:
"enterprise system" means a system that is both of the
following:
o a multidepartmental system or a system that contains
information collected about the public; and
o a system of record; and
"system of record" means a system that serves as an original
source of data within an agency.
This bill would make various related legislative findings and
declarations.
COMMENT
1. Stated need for the bill
The author writes:
[There is a l]ack of access regarding data and information
collected by local government. SB 272 requires local agencies
to create a catalog of enterprise systems used to manage data
and information.
2. Requiring public disclosure of local agency enterprise system
catalog
Existing law, the California Public Records Act (CPRA), requires
a public agency to make non-exempt electronic public records
available in any electronic format in which it holds the
information or, if requested, in an electronic format used by
the agency to create copies for its own or other agency's use.
SB 272 (Hertzberg)
Page 5 of ?
(Gov. Code Sec. 6253.9(a)(1).) This bill would require a local
agency to catalog its enterprise system, which is the overall
combination of computer hardware and software that a business
uses to organize and run its operations, and make that catalog
publicly available in the office of the local agency's clerk and
on the agency's Internet Web site, if the agency has an Internet
Web site.
The author states that for many Californians, the only contact
with government is through local public agencies, which provide
various services to their communities. The author argues that,
because of the volume and diversity of information local
agencies collect across the state, open data efforts at the
local level are important to improving the relationship people
have with government.
The California Manufacturers & Technology Association (CMTA), in
support, states that making comparisons across jurisdictions or
over time, avoiding double counting, and sorting through
information can be difficult, or even impossible under the
current public disclosure framework. CMTA argues that
lawmakers, the public, and academics need good, reliable data
from public agencies, but not all public information is
collected, stored, or accessible in open and consistent formats.
The American Federation of State, County and Municipal
Employees, AFL-CIO, in support, states that the inventories
required by this bill would include who maintains the
information and how often the data is collected and would allow
both the local government and the public to better understand
how local government serves all Californians. The San Francisco
Technology Democrats argue that "harnessing the power of locally
generated data would help spur economic growth, help tackle
major infrastructure issues, empower local agencies through
properly gathered and clearly understood data, and better equip
oversight entities to make informed decisions, and inspire
confidence in those they serve." The Firearms Policy Coalition,
in support, notes that the public's access to public records is
not only necessary to a strong democracy, but is an enshrined
public right, and encourages similar reforms that would apply to
state agencies and the Legislative Open Records Act.
Notably, the federal government has already instructed federal
agencies to provide public access to electronic agency
SB 272 (Hertzberg)
Page 6 of ?
information in an open format. In an effort to increase
government agency accountability and promote informed public
participation, the United States Director of the Office of
Management and Budget issued an Open Government Directive
(Directive) to federal public agencies responding to public
requests under the Freedom of Information Act. (See 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.)
The Directive 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. at p. 2.) The Directive defines "open
format" to mean "one that is platform independent, machine
readable, and made available to the public without restrictions
that would impede the re-use of that information."
To that end, this bill would require an enterprise system
catalog to be posted in a prominent location on the local
agency's Internet Web site, if the agency has an Internet Web
site. That catalog would include a list of the enterprise
systems utilized by the local agency as follows:
current system vendor;
current system product;
a brief statement of the system's purpose;
a general description of categories, modules, or layers of
data;
the department that serves as the system's primary custodian;
how frequently system data is collected; and
how frequently system data is updated.
The Sunlight Foundation, in support, argues that "[p]ublic
provision of this information is critical for improving the use
of valuable public data [because] . . . better public knowledge
of the data that governments hold is at the very core of
achieving open government in the 21st century. The Sunlight
Foundation routinely emphasizes that open data means more than
just accessing data the government has already chosen to publish
- it also means knowing what information the government is aware
it holds, what data the government isn't releasing, and how the
government is prioritizing publication of its data assets.
3. Concerns raised
SB 272 (Hertzberg)
Page 7 of ?
The Urban Counties Caucus and Rural County Representatives of
California have expressed concern that: (1) there are no
definitions of the terminology used in the bill specific to
various computer systems including modules and layers of data;
(2) there are no specific timelines for compliance and no
mention of what this information will be used for in the future;
(3) because of the recent passage of Proposition 42, local
agencies will not be reimbursed for the mandates in this bill,
which will bill costly to counties, especially those with
multiple systems in the many programs and services they provide;
(4) this bill will be time consuming and it is unclear what
benefit this information would provide to the general public;
and (5) there are security concerns with providing the name of
the vendor and the product version because many of the county
software applications are connected to the Internet to provide
on-line services to residents and could, therefore, be
vulnerable to malicious hacking.
Support : American Federation of State, County and Municipal
Employees, AFL-CIO; Associated Builders and Contractors of
California; California Business Roundtable; California
Broadcasters Association; California Manufacturers & Technology
Association; California Professional Firefighters; Firearms
Policy Coalition; National Federation of Independent Business;
San Diego Regional Data Library; San Francisco Technology
Democrats; Sunlight Foundation; Urban Strategies Council
Opposition : None Known
HISTORY
Source : Author
Related Pending Legislation :
SB 573 (Pan, 2015), among other things, would create the
statewide open data portal, as defined, to provide public access
to data sets from agencies within the state. The bill would
require any data published on the statewide open data portal or
other open data portal operated by an agency to comply with all
state and federal privacy laws and regulations, and make the
statewide open data portal available, at no cost, to local
agencies interested in using the statewide open data portal to
SB 272 (Hertzberg)
Page 8 of ?
publish its own data. SB 573 is set for hearing on April 28,
2015, in the Senate Governmental Organization Committee.
AB 1215 (Ting, 2015), among other things, would enact the
California Open Data Act and require state agencies to make
public data, as defined, available on an Internet Web portal and
authorize a local government to adopt that standard. AB 1215
would require each state agency, on or before July 1, 2016, to
submit a strategic plan and a strategic enterprise application
plan, as specified, to the Chief Data Officer and to post the
reports on the Internet Web portal. AB 1215 would also require
specified legal policies for public data to be posted on the
Internet Web portal. AB 1215 is currently in the Assembly
Privacy and Consumer Protection Committee.
AB 169 (Maienschein, 2015) would require a local agency, except
a school district, that chooses to post a public record on its
Internet Web site to post the public record in a format that
meets specified requirements, including, among others, that the
format is able to be retrieved, downloaded, indexed, and
searched by a commonly used Internet search application. AB 169
is currently in the Assembly Appropriations Committee.
Prior Legislation : 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 : Senate Governance and Finance Committee (Ayes 7,
Noes 0)
**************