BILL ANALYSIS                                                                                                                                                                                                    





                             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  








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          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.)







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           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  







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          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.   







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          (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  







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          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  







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          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  







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          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)

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