BILL ANALYSIS SENATE RULES COMMITTEE SB 143 Office of Senate Floor Analyses 1020 N Street, Suite 524 (916) 445-6614 Fax: (916) 327-4478 . THIRD READING . Bill No: SB 143 Author: Kopp (I) Amended: 1/20/98 Vote: 21 . SENATE JUDICIARY COMMITTEE : 7-0, 1/13/98 AYES: Burton, Haynes, Lee, Lockyer, O'Connell, Sher, Wright NOT VOTING: Calderon, Leslie SENATE APPROPRIATIONS COMMITTEE : 7-1, 1/16/98 AYES: Johnston, Alpert, Dills, Karnette, Kelley, Lee, McPherson NOES: Johnson NOT VOTING: Burton, Calderon, Leslie, Mountjoy, Vasconcellos . SUBJECT : Public records SOURCE : California Newspaper Publishers Association . DIGEST : 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. ANALYSIS : 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. 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." 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." 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. 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. 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. 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. Prior Legislation SB 74 (Kopp) of 1997; Senate vote 37-0. Vetoed by the Governor (see message below). SB 323 (Kopp) of 1996; Senate vote 22-5. Vetoed by the Governor. AB 179 (Bowen) of 1997, Senate vote 26-7. Vetoed by the Governor. The Governor vetoed the bill with the following message: "This bill would amend the California Public Records Act to require state agencies to provide 'a copy of an electronic record in the form requested, unless, in light of surrounding circumstances, it is not reasonable to do so....' It does not change the public's right of access to government documents, but only restricts the agency's discretion as to the form of the document made available. "Government agencies receive hundreds of Public Records Act requests every month. They are most often not from ordinary citizens, but from political candidates or special interest groups searching for information. Government employees spend thousands of hours each year responding to the requests-segregating the requested documents from exempt documents, such as those which invade other citizens' personal privacy. Taxpayers pay for the time expended searching for and segregating these records. However, state agencies are presently permitted to determine the form in which computer data is provided. "This bill creates a new inflexible mandate by requiring the agency to provide the electronic data in the form requested, unless it is 'unreasonable' to do so, without ever defining the breadth of that exemption, thereby leaving it open to litigation. A request that an electronic record be provided in a particular form may require additional expense, burden, and time to segregate the public data from the exempt data, but the bill provides no guidance whether or to what extent that additional burden makes it 'unreasonable.' "Agencies should make available to the public all documents to which public access is granted. But we need not add costs and rigidity to these obligations by specifying the form in which it will be done." FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes Local: Yes SUPPORT : (Verified 1/27/98) California Newspaper Publishers Association (source) California State Association of Counties Santa Clara County ARGUMENTS IN SUPPORT : 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 this bill 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. RJG:ctl 1/27/98 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END ****