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) **************