BILL ANALYSIS                                                                                                                                                                                                    



SENATE RULES COMMITTEE                            SB 143  
Office of Senate Floor Analyses
1020 N Street, Suite 524
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                        THIRD READING
                                                              
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Bill No:  SB 143
Author:   Kopp (I)
Amended:  1/20/98
Vote:     21
                                                              
                                                             
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  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
                                                              
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SUBJECT  :    Public records

  SOURCE  :     California Newspaper Publishers Association
                                                              
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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
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