BILL ANALYSIS SENATE RULES COMMITTEE SB 143 Office of Senate Floor Analyses 1020 N Street, Suite 524 (916) 445-6614 Fax: (916) 327-4478 . UNFINISHED BUSINESS . Bill No: SB 143 Author: Kopp (I) Amended: 7/21/98 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 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 . 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 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 **** END ****