BILL ANALYSIS
SENATE RULES COMMITTEE SB 143
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UNFINISHED BUSINESS
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Bill No: SB 143
Author: Kopp (I)
Amended: 7/21/98
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
SENATE FLOOR : 30-5, 1/28/98
AYES: Alpert, Ayala, Burton, Calderon, Costa, Dills,
Greene, Hayden, Haynes, Hughes, Johannessen, Johnston,
Karnette, Kelley, Kopp, Lee, Lockyer, McPherson,
O'Connell, Peace, Polanco, Rainey, Rosenthal, Schiff,
Sher, Solis, Thompson, Vasconcellos, Watson, Wright
NOES: Brulte, Johnson, Knight, Monteith, Mountjoy
NOT VOTING: Craven, Hurtt, Leslie, Lewis, Maddy
ASSEMBLY FLOOR : 76-0, 8/17/98 - See last page for vote
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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
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.
Assembly Amendments delete the requirement that agencies
shall provide a copy of an electronic record in the form
requested. Instead, the bill would return to what existing
law already permits; that computer data shall be provided
in a form determined by the agency. This amendment was
taken because of the opposition voiced by numerous state
agencies, boards, departments, and offices who claimed that
this bill would have created a new inflexible mandate by
requiring a state 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.
SB 143 would have previously provided that any person who
has submitted and been denied a written request for a
public record may institute proceedings for injunctive or
declarative relief or writ of mandate in any court of
competent jurisdiction to enforce his or her right to
inspect or to receive a copy of that public record or class
of public records. On July 21, 1998, SB 143 was amended to
delete this provision, due to concerns raised from the
sponsor, the California Newspaper Publishers Association.
The sponsor was concerned that this provision would
unnecessarily double the waiting period for requesters of
public records.
Deletes the following from the list of records or
information not to be disclosed:
1. Alzheimer's Disease Demonstration Project,
confidentiality of patient information, Section 1311.2,
Health and Safety Code.
2. Conservatee, status report of, confidentiality of,
Section 2520.1, Probate Code.
3. Developmentally disabled person, release of confidential
client information by regional center, Section 4744,
Welfare and Institutions Code.
4. Developmentally disabled, regional center, closed
meeting on individual client, Sections 4663 and 4665,
Welfare and Institutions Code.
5. Developmentally disabled, regional center, client
confidentiality, Section 4630, Welfare and Institutions
Code.
6. Frail elderly and functionally impaired adults receiving
services to prevent institutionalization,
confidentiality of medical records, Section 9390.5,
Welfare and Institutions Code.
7. Highway carriers, disclosure of information by
commission employee, Section 3709, Public Utilities
Code.
8. Homeless youth emergency service pilot projects,
collection of data, Section 13702, Welfare and
Institutions Code.
9. Nonprofit Hospital Service Plan, conversion, disclosure
statement, confidentiality of, Section 11056, Insurance
Code.
10.Nonprofit hospital service plans, reviews, Section
11512.09, Insurance Code.
11.Physicians and surgeons, information about,
confidentiality of, Section 920, Business and
Professions Code.
12.Premarital examination, confidentiality of, Section 594,
Family Code.
13.Seriously mentally disordered, pilot agencies provided
integrated services to, confidentiality of records of
recipients, Section 5815, Welfare and Institutions Code.
14.Student, release of student records by public college or
university, limitations on, Section 6743, Education
Code.
15.Student, civil action against public college or
university, production of student records,
confidentiality of contents, Section 67137.5, Education
Code.
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.
Specifically, this bill:
1. Creates an index of public records within the Act itself
that are exempt from disclosure under current law that
are contained in various other codes. States
legislative intent to assist members of the public and
state and local agencies in identifying exemptions to
the Act, and states legislative intent that any new
exemptions be listed in the Act.
2. States that an elected member or officer of any state or
local agency is entitled to access to public records of
that agency on the same basis as any other person, and
states this is declaratory of existing law.
3. Adds the Department of Toxic Substance Control (DTSC)
and the Office of Environmental Health Hazard Assessment
(OEHHA) to the list of state and local bodies required
to establish written guidelines for accessibility of
records.
4. Clarifies that an agency has 10 days to determine
whether a requested record is disclosable, and allows
for an extension of 14 days, instead of 10 working days
in current law.
5. Redefines, for the purposes of the Act, "local agency"
to include nonprofit entities that are legislative
bodies of a local agency, as defined, and defines, for
purposes of the Act, "public agency" as any state or
local agency.
6. Recodifies and consolidates various provisions of the
Act.
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 : (Unable to reverify at time of writing)
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.
ASSEMBLY FLOOR :
AYES: Ackerman, Aguiar, Alby, Alquist, Aroner, Ashburn,
Baca, Battin, Baugh, Bordonaro, Bowen, Bowler, Brewer,
Brown, Bustamante, Campbell, Cardenas, Cardoza, Cedillo,
Cunneen, Davis, Ducheny, Escutia, Figueroa, Firestone,
Floyd, Frusetta, Gallegos, Goldsmith, Granlund, Havice,
Hertzberg, Honda, House, Kaloogian, Keeley, Knox, Kuehl,
Kuykendall, Leach, Lempert, Leonard, Machado, Margett,
Martinez, Mazzoni, McClintock, Migden, Miller, Morrissey,
Murray, Olberg, Oller, Ortiz, Pacheco, Papan, Perata,
Poochigian, Prenter, Pringle, Richter, Runner, Scott,
Shelley, Strom-Martin, Sweeney, Thompson, Thomson,
Torlakson, Vincent, Washington, Wayne, Wildman, Woods,
Wright, Villaraigosa
NOT VOTING: Baldwin, Morrow, Napolitano, Takasugi
RJG:ctl/jk 8/18/98 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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