BILL ANALYSIS                                                                                                                                                                                                    



                                                                       


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          |SENATE RULES COMMITTEE            |                  AB 2799|
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                                 THIRD READING 
                                        

          Bill No:  AB 2799
          Author:   Shelley (D), et al
          Amended:  7/6/00 in Senate
          Vote:     21

            
           SENATE JUDICIARY COMMITTEE  :  5-0, 6/29/00
          AYES:  Escutia, Morrow, O'Connell, Peace, Schiff

           SENATE APPROPRIATIONS COMMITTEE  :  Senate Rule 28.8

           ASSEMBLY FLOOR  :  70-4, 5/25/00 - See last page for vote
           

           SUBJECT  :    Public records:  disclosure

           SOURCE  :     California Newspaper Publishers Association

           
           DIGEST  :    This bill revises various provisions in the  
          Public Records Act (PRA) in order to make available public  
          records, not otherwise exempt from disclosure, in an  
          electronic format, if the information or record is kept in  
          electronic format by a public agency.  It  specifies what  
          costs the requester would bear for obtaining copies of  
          records in an electronic format.

          The bill adds, to the unusual circumstances that would  
          permit an extension of time to respond to a request for  
          public records, the need of the agency to compile data,  
          write programming language, or construct a computer report  
          to extract data.  The bill requires that a response to a  
          request for public records that includes a denial, in whole  
          or in part, shall be in writing, and provides that the  
                                                           CONTINUED





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          Public Records Act shall not be construed to permit an  
          agency to delay or obstruct inspection or copying of public  
          records.

           ANALYSIS  :    The Public Records Act allows an agency to  
          provide computer data in any form determined by the agency.  
           The Act directs a public agency, upon request for  
          inspection or for a copy of the records, to respond to a  
          request within 10 days after receipt of the request.  In  
          unusual circumstances, which are specified in the Act, this  
          timeline for responding may be extended in writing for 14  
          days. [Government Code Section 6253.]

          This bill would:

          1. Require a public agency to make disclosable information  
             available in any electronic format in which it holds the  
             information, unless release of the information would  
             compromise the integrity of the record or any  
             proprietary software in which it is maintained;

          2. Add, in the definition of "unusual circumstances" for  
             which the time limit for responding to a request for a  
             copy of records may be extended up to 14 days after the  
             initial 10 days, the need for the agency to compile  
             data, to write programming language or a computer  
             program, or to construct a computer report to extract  
             data;

          3. Require a public agency to respond in writing to a  
             written request for public records, including a denial  
             of the request in whole or in part, and requiring that  
             the names and titles of the persons responsible for the  
             denial be stated therein;

          4. Provide that nothing in the Act shall be construed to  
             permit the agency to delay or obstruct the inspection or  
             copying of public records;

          5. Provide that a requester bear the costs of programming  
             and computer services necessary to produce a record not  
             otherwise readily produced, as specified;

          6. Delete the provision in current law that computer data  







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             that is a public record shall be provided in a form  
             determined by the agency.

          This bill is a blend of two bills that were passed by the  
          Legislature last year, AB 1099 (Shelley), and SB 1065  
          (Bowen).  

          AB 1099 passed the Senate (and was chaptered) but contained  
          provisions unrelated to electronic records.  SB 1065 was  
          vetoed by the Governor, who stated in his veto message that  
          he believes the bill to be well-intentioned, but  "the  
          State's information technology resources should be directed  
          towards making sure that its computer systems are year 2000  
          compliant. The author was unwilling to add language which  
          would ensure the completion of this task before the  
          implementation of the provisions of this bill."  Most of SB  
          1065 was incorporated into AB 2799.    

          AB 2799 contains those provisions of both bills that were  
          received without much opposition.  It is sponsored by the  
          California Newspaper Publishers Association, and is one of  
          several bills moving through both houses that relate to  
          public records or to the use of electronic records by  
          public agencies.

           Information in electronic form to be provided in same form
           
          This bill would require a public agency that has  
          information constituting a public record in an electronic  
          format to make that information available in an electronic  
          format upon request.  Additionally, 

          1. the agency is required to provide information in any  
             electronic format in which it holds the information; and

          2. the agency is required to provide a copy of an  
             electronic record in the format requested if it is the  
             format that had been used by the agency to create copies  
             for its own use or for other agencies.

           Conditions on providing records in electronic format
           
          The bill would make conditional the requirement that a  
          public agency comply with a request for public records held  







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          in an electronic format. These conditions are:

          1. An agency would not be required to reconstruct a record  
             in an electronic format if the agency no longer has the  
             record available in an electronic format.

          2. An agency would not be permitted to make information  
             available only in an electronic format. 

            Even though this bill is intended to make records  
            available to the public in electronic format if kept by  
            an agency in that form, an agency may not, under this  
            bill, frustrate the public's access to information by  
            then converting the non-electronically formatted records  
            into electronic format.  As prevalent as electronic data  
            processing is now, there are still those who may not have  
            access to computer equipment to read computer disks or  
            CDs.  Thus, if public information is requested in a form  
            other than in an electronic format, a public agency must  
            provide such record in the non-electronic format.

            This bill requires a public agency to provide information  
            in electronic format only if requested by a member of the  
            public.  If the record is available in electronic format  
            as well as in printed form, the public agency is required  
            to tell the requester that the information is available  
            in electronic format.

          3. An agency would not be required to release an electronic  
             record in electronic form if its release would  
             jeopardize or compromise the security or integrity of  
             the original record or of any proprietary software in  
             which it is maintained.

            This limitation was added to the bill in order to  
            alleviate concerns that electronic records, though  
            created with taxpayer money, may have been produced using  
            software designed specifically for the agency.  This bill  
            would give the agency the flexibility to refuse to  
            release a requested record in electronic format, if such  
            a release would mean that the software would also have to  
            be released.  Even without the software problem, though,  
            an electronic record containing the data may be  
            deciphered and the software program reconstructed (see  







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            below).

            The agency also may refuse to provide the information in  
            electronic format if the electronic record, when  
            transmitted or provided to a requester, could be altered  
            and then retransmitted, thus rendering the original  
            record vulnerable.  

            These two concerns were registered by opponents of SB  
            1065 last year.  Thus, AB 2799 includes a provision that  
            gives the public agency the option not to provide the  
            information if disclosing it would jeopardize the  
            integrity or security of the system.

          4. Any agency would not be required to provide public  
             access to its records where access is otherwise  
             restricted by statute.

            These records would be, among others, personal  
            information on holders of driver's licenses, and other  
            information protected by federal and state privacy  
            statutes.  

            The Governor's veto message of SB 1065 stated that many  
            of the state's computer systems do not yet have the  
            capacity to implement the provisions of the bill, and  
            that he is concerned that SB 1065 would not be able to  
            protect "the confidentiality of citizens whose personal  
            information is maintained by the state departments  
            including the Employment Development Department, the  
            Department of Motor Vehicles, the Department of Health  
            Services, and the California Highway Patrol."

           Costs of reproduction of records: what requester pays for
           
          This bill would specify the copying costs that a requester  
          would pay:

          1. If the record duplicated is an electronic record in a  
             format used by the agency to make its own copies or  
             copies for other agencies, the cost of duplication would  
             be the cost of producing a copy in an electronic format.

          2. If the public agency would be required to produce a copy  







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             of an electronic record and the record is one that is  
             produced by the public agency at otherwise regularly  
             scheduled intervals, or if the request would require  
             data compilation, extraction, or programming to produce  
             the record, the cost of producing a copy of the record,  
             including the cost to construct a record, and the cost  
             of programming and computer services necessary to  
             produce the record.

           Target records to be duplicated
           
          This bill would target voluminous documents as those public  
          records to which the public should have access in the  
          electronic format, and those public records such as the  
          city budget, environmental impact reports, or minutes from  
          a Board of Supervisors' meeting as documents that should be  
          available on disk or the Internet.  Especially because  
          these documents were created a taxpayer expense in the  
          first place, it is argued, a person seeking copies should  
          not be gouged by the public agency for the cost of a person  
          standing in front of a copy machine to duplicate the record  
          when the record could quickly be copied onto a disk or  
          accessed on the Internet.  Thus, the bill provides that the  
          cost of duplicating a record in electronic format would be  
          the direct cost of producing that record in electronic  
          format, i.e., the cost of copying the CD or copying records  
          stored in a computer into disks.  

          Where the records do not lend themselves to electronic  
          format, this bill would not impose a duty on the public  
          agency to convert the records into electronic format (just  
          as the agency would not be permitted to make records  
          available only in electronic format).  For example,   
          environmental impact reports, which are voluminous,  
          normally contain maps and other fold-out attachments.   
          Until these documents are actually produced by the public  
          agency or their contractors in electronic format, there  
          would be no obligation for the agency to provide the  
          reports in disk or CD form.

          However, if at some point in time these voluminous records  
          do become available in electronic form, it is possible that  
          public agencies will just have to create websites for  
          posting all disclosable records accessible to the public.







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           Public agency may not delay or obstruct access to public  
          records
           
          This bill would provide that "Nothing in this chapter shall  
          be construed to permit an agency  to delay  or obstruct the  
          inspection or copying of public records?"  [Government Code  
          Section 6253(d).]

          Thus, any delay experienced by an agency in responding to a  
          request could be interpreted as a violation of the Public  
          Records Act.  Under existing law, the court is required to  
          award reasonable attorney's fees and court costs to a  
          person who prevails in litigation filed under the PRA.  But  
          this award would be available only if the requester can  
          prove that the agency "obstructed" the availability of the  
          requested records for inspection or copying.  Because of  
          the change this bill would make to the referenced  
          provision, it may invite litigation at every delay in  
          production of records requested.

          Proponents of this change, however, point to the fact that  
          when this section was last amended, the word "delay" was  
          replaced with the word "obstruct."  The return of the word  
          "delay" to this section, they say, would remove any doubt  
          that the prior substitution of "obstruct" for "delay" in  
          subdivision (d) of Section 6253 was not intended to weaken  
          the PRA's mandate that agencies act in good faith to  
          promptly disclose public records requested under the Act.

          An example used by proponent, counsel to The Orange County  
          Register, is the requested records from the University of  
          California, Irvine, for the Register's investigation and  
          report on the abuses at the University's fertility clinic  
          (for which the Register earned a Pulitzer Prize).  The  
          Register apparently utilized the PRA to obtain public  
          records that were critical to the reporting.  Repeated  
          requests met with repeated months of delay, "even where the  
          University readily conceded that the records are not exempt  
          from disclosure."  Proponent indicated, however, that the  
          Register "is not so na?ve as to believe that this amendment  
          will solve the serious problem of administrative delay in  
          responding to CPRA requests?"








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           "Unusual circumstance" would extend time to respond  
           
          Existing law provides for an extension of the public  
          agency's deadline for responding to a request from 10 days  
          to no more than 14 days more, if certain "unusual  
          circumstances exist, such as the need to search for and  
          collect data from field facilities separate from the office  
          processing the request or the need for consultation with  
          another agency that has a substantial interest in the  
          determination of the request.

          This bill would add to these "unusual circumstances," the  
          need to compile data, write programming language or a  
          computer program, or to construct a computer report to  
          extract data.  This provision recognizes that sometimes the  
          information or data requested is not in a central location  
          nor easily accessible to the agency itself, and thus would  
          take time to produce or copy.

           Denial of request must be in writing
           
          Existing law requires an agency to justify the withholding  
          of its record by demonstrating that the record requested is  
          exempt under the PRA, or that on the facts of the  
          particular case, the public interest served by not  
          disclosing the information outweighs the public interest  
          served by disclosure of the record.  The PRA provision does  
          not require this justification or denial of the request to  
          be in writing.

          This bill would expressly state that a response to a  
          written request for inspection or copying of public records  
          that includes a determination that the request is denied,  
          in whole or in part, must be in writing. 

           Related Pending Legislation  : 

          SB 2027 (Sher) would also amend the Public Records Act as  
          it relates to a person's right to litigate in the event of  
          a denial of the person's request. The bill is now in the  
          Assembly Judiciary Committee.

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  Yes    
          Local:  Yes







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           SUPPORT  :   (Verified  8/14/00)

          California Newspaper Publishers Associaiton (source)
          Orange County Register
          State Franchise Tax Board
          1st Amendment Coalition

           OPPOSITION  :    (Verified  8/14/00)

          County of Orange

           ARGUMENTS IN SUPPORT  :    According to the author's office,  
          with the advent of the electronic age, more and more people  
          want to be able to access information in an electronic  
          format.  Apparently, there is not current authority under  
          which a person seeking electronically available records  
          could obtain such records in that format.  This means that  
          if an agency makes a CD or disk copies of the records, a  
          member of the public could not obtain records in that  
          format-the public would have to buy copies made out of the  
          printouts from the records.  The expense of copying these  
          records in paper format, especially when the records are  
          voluminous, makes those public records practically  
          inaccessible to the public, according to the author and the  
          proponents.

          The author also states that the current provision in the  
          PRA that gives a public agency the discretion to determine  
          in which form the information requested should be provided  
          works so that the agency can effectively frustrate the  
          request by providing a copy of the requested record in a  
          form different from the request, which could sometimes  
          render the information useless.

          The sponsor of this bill, the California Newspaper  
          Publishers Association (CNPA) also contends that the 10-day  
          period that a public agency has to respond to a request for  
          inspection or copying of public records is not intended to  
          delay access to records.  It is intended instead, when  
          there is a legitimate dispute over whether the records  
          requested are covered by an exemption, to provide time for  
          the agency to provide the information or provide the  
          written grounds for a denial.  What many state agencies do,  







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          the sponsor says, is to use the 10 days as a "grace period"  
          for providing the information, during which time many a  
          requester (members of the public) often gives up and never  
          acquires the record.

           ARGUMENTS IN OPPOSITION  :    The County of Orange, contends  
          that the county, like many others, already provide  
          information to the public on public records and how to  
          access them, 24 hours a day through the Internet.  "Without  
          reasonable regulations," the county argues, "County staff  
          could be required to spend considerable time copying and  
          editing records, determining if they are appropriate for  
          public disclosure and responding with written  
          justifications if the requests are denied."

           ASSEMBLY FLOOR  :
          AYES:  Aanestad, Alquist, Aroner, Baldwin, Bates, Battin,  
            Bock, Briggs, Calderon, Campbell, Cardenas, Cardoza,  
            Cedillo, Corbett, Correa, Cox, Cunneen, Davis, Dickerson,  
            Ducheny, Dutra, Firebaugh, Florez, Floyd, Gallegos,  
            Granlund, Havice, Honda, House, Jackson, Keeley, Knox,  
            Kuehl, Leach, Lempert, Leonard, Longville, Lowenthal,  
            Machado, Maddox, Maldonado, Mazzoni, McClintock, Migden,  
            Nakano, Olberg, Robert Pacheco, Rod Pacheco, Papan,  
            Pescetti, Reyes, Romero, Runner, Scott, Shelley,  
            Steinberg, Strickland, Strom-Martin, Thompson, Thomson,  
            Torlakson, Vincent, Washington, Wayne, Wesson, Wiggins,  
            Wildman, Wright, Zettel, Hertzberg
          NOES:  Ackerman, Ashburn, Brewer, Kaloogian


          RJG:jk  8/16/00   Senate Floor Analyses 

                         SUPPORT/OPPOSITION:  SEE ABOVE

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