BILL ANALYSIS                                                                                                                                                                                                    



SENATE RULES COMMITTEE                            SB 143  
Office of Senate Floor Analyses
1020 N Street, Suite 524
(916) 445-6614         Fax: (916) 327-4478
                                                              
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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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