BILL ANALYSIS
------------------------------------------------------------
|SENATE RULES COMMITTEE | AB 2799|
|Office of Senate Floor Analyses | |
|1020 N Street, Suite 524 | |
|(916) 445-6614 Fax: (916) | |
|327-4478 | |
------------------------------------------------------------
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
AB 2799
Page
2
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
AB 2799
Page
3
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
AB 2799
Page
4
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
AB 2799
Page
5
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
AB 2799
Page
6
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.
AB 2799
Page
7
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?"
AB 2799
Page
8
"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
AB 2799
Page
9
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,
AB 2799
Page
10
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
**** END ****