BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     SB 441


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          Date of Hearing:  June 28, 2016


                           ASSEMBLY COMMITTEE ON JUDICIARY


                                  Mark Stone, Chair


          SB  
          441 (Wolk) - As Amended June 22, 2016


          SENATE VOTE:  Not Relevant


          SUBJECT:  California Public Records Act:  exemptions


          KEY ISSUE:  Should the public records act be amended to exempt  
          identification numbers or other unique codes that a public  
          agency uses to identify a vendor or contractor, so as to protect  
          against fraudulent uses of those numbers or codes? 


                                      SYNOPSIS


          This bill would amend the California Public Records Act (CPRA)  
          to exempt from disclosure the unique identification numbers or  
          alphanumeric codes that a public agency uses to identify a  
          public contractor or vendor for billing, payment, or other  
          internal administrative purposes.  The bill, as amended in the  
          Assembly, is a response to an e-mail scam perpetrated against  
          the City of Dixon.  That scam resulted in the diversion of city  
          payments of up to $1.3 million from the intended contractor's  
          bank account into an account established in another bank by the  
          scammers.  According to an investigation of the incident, the  
          city received an email containing the logo of the contractor  








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          that had performed work.  The e-mail purported to provide the  
          city with new payment instructions.  A subsequent investigation  
          showed that the message was sent from an e-mail address that was  
          quite similar to an e-mail address of the actual contractor.   
          The city assumed the message was legitimate and directed its  
          next payment as instructed, only to discover that the contractor  
          never received payment and had never sent an e-mail with  
          instructions to change the payment method.  The city assumed the  
          e-mail was legitimate, in part, because it contained the unique  
          identification code that the city used to identify the  
          contractor for remitting and tracking payments.  It is unclear  
          whether or not the scammers obtained the identification number  
          from a public records request, but that was surely a  
          possibility.  This bill, therefore, would amend the CPRA to  
          specify that a public agency is not required to disclose any  
          identification number, alphanumeric character, or other unique  
          code that the agency uses to identify a vendor or contractor.   
          Recent amendments, taken by the author to address concerns  
          raised by the California Newspaper Publishers Association, would  
          specify that the exemption would not apply if the code is used  
          in a public bidding or an audit involving the public agency.   
          This seems a very reasonable compromise that balances the  
          competing interests of public access to government records with  
          the need to protect public agencies against fraud.  While the  
          public certainly has an interest in knowing the identity of  
          vendors and contractors that receive public funds, and the  
          amount of those contracts, there is no significant interest in  
          knowing the otherwise random numbers or alphanumeric codes that  
          the agency uses for internal administrative purposes.  Because  
          this bill was amended in the Assembly to address a different  
          topic, the Senate votes are irrelevant.  The bill is sponsored  
          by the City of Dixon and supported by the League of California  
          Cities.  There is no opposition to this bill.


          SUMMARY:  Exempts from disclosure under the CPRA any unique  
          identification number or code that a public agency uses to  
          identify a vendor or contractor, except as specified.   
          Specifically, this bill:  








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          1)Provides that nothing in the CPRA requires the disclosure of  
            an identification number, alphanumeric character, or other  
            unique identifying code that a public agency uses to identify  
            a vendor or contractor, or an affiliate of a vendor or  
            contractor, unless the identification number, alphanumeric  
            character, or other unique identifying code is used in a  
            public bidding or an audit involving the public agency. 


          2)Finds and declares, as required by the California  
            Constitution, that this limitation on the public's right of  
            access to public records is necessary to protect the public  
            interest by balancing the right of the public to access  
            relevant information about contractors, vendors, and their  
            affiliates used by public agencies, while at the same time  
            preventing the misuse of identification information that may  
            be used to defraud local agencies. 


          EXISTING LAW provides, under the California Public Records Act  
          (CPRA), that all public records shall be open to inspection at  
          all times during the business hours of any state or local public  
          agency and that every person has a right to inspect or copy any  
          public record, unless the public record is expressly exempted  
          from disclosure or the public interest in disclosing the public  
          record is clearly outweighed by the public interest in not  
          disclosing the public record.  (Government Code Section 6250 et  
          seq.) 


          FISCAL EFFECT:  As currently in print this bill is keyed fiscal.  



          COMMENTS:  According to the author, this bill, as amended in the  
          Assembly, is a response to an e-mail scam perpetrated against  
          the City of Dixon.  That incident resulted in payments of up to  








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          $1.3 million in public funds being diverted from an intended  
          contractor's bank account into an account established in a  
          different bank by the scammers.  Like most people and entities,  
          public or private, the City of Dixon increasingly pays its bills  
          electronically through an "Automated Clearing House" (ACH).   
          According to an independent investigation, the city received an  
          email containing the logo of the contractor that had performed  
          work for the city.  The e-mail purported to inform the city that  
          ACH payments should go to another account maintained by the  
          contractor and provided the city with new payment instructions  
          and account numbers.  A subsequent investigation showed that the  
          message was sent from an e-mail address that was quite similar  
          to e-mail address of the actual contractor.  The city assumed  
          that the message was legitimate and directed its next ACH  
          payment as instructed, only to discover that the contractor  
          never received payment and had never sent an e-mail with  
          instructions to change the payment method.  The city assumed the  
          e-mail was legitimate, in part, because it contained the unique  
          identification code that the city used to identify the  
          contractor for billing and other internal administrative  
          purposes. It is unclear whether or not the scammers obtained the  
          identification number from a public records request, but that  
          was surely a possibility.  The author hopes that this bill will  
          reduce the opportunity for such fraudulent diversions.


          According to the author and supporters, the use of such  
          identification numbers in conjunction with an ACH payment system  
          allows public agencies to quickly identify and effectively track  
          and remit payments.  Unfortunately, these numbers are found in  
          the enumeration of claims published in a city council agenda  
          packet.  These packets are in turn available upon request, yet  
          there is no exemption in the CPRA that would permit withholding  
          or redacting these numbers from a public records request.  This  
          bill, therefore, would amend the CPRA to specify that a public  
          agency is not required to disclose any identification number,  
          alphanumeric character, or other unique code that the agency  
          uses to identify a vendor or contractor.   









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          Recent amendments, taken by the author to address concerns  
          raised the California Newspaper Publishers Association, would  
          specify that the exemption would not apply if the code is used  
          in a public bidding or an audit involving the public agency.   
          That is, the number would only be withheld from a public records  
          request where the number is otherwise only created by the public  
          agency and used for strictly internal purposes.  This seems to  
          be a reasonable compromise that balances the competing interests  
          of public access to government records and information, while at  
          the same time protecting public agencies against fraud.  While  
          the public certainly has an interest in knowing the identity of  
          vendors and contractors that receive public funds, there is no  
          significant interest in knowing the otherwise random numbers or  
          alphanumeric codes that the agency uses for internal  
          administrative purposes.  


          Arguments in Support:  According to the sponsor, the City of  
          Dixon, vendor identification numbers are "unique identifiers  
          created and used by public agencies statewide to provide a  
          uniform system to quickly identify vendors and effectively track  
          and remit payments. [Yet currently] there is no specific  
          exemption in the [CPRA] to prevent the disclosure of vendor  
          identification numbers."  The City of Dixon believes that SB 441  
          appropriately "seeks to reduce the risk of a public agency  
          falling victim to the type of fraud that the City faced earlier  
          this year. The fraud attempt underscores how easy it is for  
          criminals to obtain information meant for internal use and  
          utilize it to carry out similar scams against public entities."   
          The City of Dixon concludes that "SB 441 balances the public's  
          right to government transparency with the duty to protect public  
          funds." 


          The League of California Cities writes that "this measure  
          addresses concerns arising from documented attempts to defraud  
          local agencies and appropriately considers the public interest  
          served by not disclosing unique vendor identification numbers.   








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          Unique vendor numbers serve only to allow city staff to  
          correctly and efficiently issue and track payments.  Under this  
          measure, public disclosure of vendors and amounts paid will  
          still be available," but at the same time "the measure will help  
          deter and prevent attempts to defraud local agencies."  


          REGISTERED SUPPORT / OPPOSITION:




          Support


          City of Dixon (sponsor)


          League of California Cities 




          Opposition


          None on file 




          Analysis Prepared by:Thomas Clark / JUD. / (916)  
          319-2334














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