BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
John L. Burton, Chairman
1997-98 Regular Session
SB 143 S
Senator Kopp B
As Amended January 5, 1998
Hearing Date: January 13, 1998 1
Government Code 4
AH:cjt 3
SUBJECT
Public Records
DESCRIPTION
This bill would require state and local government agencies
to provide electronic files that are public records in the
format sought by the requester and would permit a higher
fee to be charged when electronic records are requested for
a commercial purpose. It would require a public records
request to have been made in writing before court
proceedings to contest a denial may be instituted. It
would include in the California Public Records Act
corporations or other entities created by government
agencies to carry out public purposes, and it would specify
that an elected official has the same right of access to
public records as a "member of the public." It would
consolidate in the Public Records Act exemptions that are
scattered throughout other codes.
BACKGROUND
The California Public Records Act was enacted in 1968 and
generally provides the public the right to inspect and
obtain copies of documents and records retained by state
and local government agencies, with certain exemptions.
The definition of public records includes those maintained
in computer format. However, agencies may select the form
in which such electronic records are provided, which has
allowed agencies, in some instances, to thwart requests by
providing data in an unusable format.
Agencies may only charge the direct cost of duplication.
They may not charge for retrieving, reviewing, or redacting
records.
This bill is the product of negotiations conducted by the
Task Force on Electronic Access to Public Records, which
was organized by the Senate Select Committee on
Procurement, Expenditures and Information Technology.
Identical language in SB 74 (Kopp) was vetoed last year by
the Governor.
CHANGES TO EXISTING LAW
1.Existing law , the California Public Records Act,
establishes the public's right to inspect and receive
copies of the records of state and local agencies, with
certain exemptions, "regardless of physical form or
characteristic."
This bill would require public agencies to provide
electronic records in the form requested provided the
agency uses that form, unless, "in light of surrounding
circumstances, it is not reasonable to do so."
2.Existing law limits the amount an agency may charge for
providing a document to the direct cost of duplication or
a statutory fee, if applicable.
This bill would permit a higher fee to be charged for
providing electronic records when the records are
requested for commercial purposes, which is defined as
any use that, "furthers the commercial, trade, or profit
interests of the requester."
3.Existing law provides that any person may institute court
proceedings for injunctive or declaratory relief when an
agency denies or fails to respond to a request for a
public record.
This bill would require the request to have been made in
writing before such court proceedings may be instituted.
4.Existing law requires open and public meetings of the
governing board of a private corporation or other entity
created by a government agency that carries out delegated
public authority or that receives public funds.
This bill would include such entities in the Public Records
Act, thereby requiring that their records also be public
documents.
5.Existing law provides a number of exemptions for
specified documents and records from the Public Records
Act.
This bill would consolidate these exemptions, which are
contained in various codes, within the Public Records Act
and would state legislative intent that any new
exemptions also be included in the same section.
6.Existing law defines, "member of the public" having the
right of access to public records as "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."
This bill would provide that, notwithstanding this
definition, an elected official of any state agency is a
"member of the public" entitled to access to public
records. It would provide that this section is
declaratory of existing law.
COMMENTS
1.Sponsor's statement of purpose
The sponsor, the California Newspaper Publishers
Association, states that the bill is intended to bring
the California Public Records Act into line with the
widespread government practice of maintaining documents
and records in computer databases rather than on paper
documents, a practice not contemplated when the Act was
passed in 1968. According to the sponsor, California is
behind the federal government and other states in
providing this public right.
The California State Association of Counties states that it
supports SB 143 because it would permit government
agencies, for the first time, to charge requesters of
public records who intend to use the documents for
commercial purposes the actual cost of retrieving and
reproducing electronic copies.
2.Governor's veto
Governor Wilson vetoed identical legislation October 12,
1997. In his veto message, he said that SB 74 would
create "a new inflexible mandate" and that it provides no
guidance on when it is not "reasonable" to provide an
electronic record in a particular form.
3.Additional conforming amendment
This bill would include in the Public Records Act private
corporations and other entities created by a government
agencies that carry out delegated public authority or
that receive public funds, such as economic development
corporations. They are already covered by the open
meeting law, the Brown Act (Gov. Code Sec. 54952c).
The Brown Act also requires public meetings for a
non-profit corporation that operates a hospital or other
medical facility owned by a local hospital district
leased after January 1, 1994 (Gov. Code Sec. 54952d).
And recent legislation, SB 1350 (Burton), required any
corporation that operates a state-owned hospital worth
$50 million or more to be subject to both open meetings
and public records requirements.
SHOULD THIS BILL BE AMENDED TO REQUIRE THE OPERATORS OF
PUBLICLY-OWNED DISTRICT HOSPITALS TO ALSO COMPLY WITH THE
PUBLIC RECORDS ACT?
Support: California State Association of Counties
Santa Clara County
Opposition:None on File
HISTORY
Source:California Newspaper Publishers Association
Prior Legislation:SB 74 (Kopp), vetoed 10-12-97
SB 323 (Kopp), vetoed 9-29-96
AB 179 (Bowen), vetoed 10-12-97
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