BILL ANALYSIS
SENATE RULES COMMITTEE SB 143
Office of Senate Floor Analyses
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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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