BILL NUMBER: AB 2927 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 17, 2006
INTRODUCED BY Assembly Member Leno
FEBRUARY 24, 2006
An act to amend Section 2620 of the Business and
Professions Code, relating to healing arts. An act to
amend Sections 6258 and 6259 of, and to add Sections 6253.3 and
6259.1 to, the Government Code, relating to public records.
LEGISLATIVE COUNSEL'S DIGEST
AB 2927, as amended, Leno Physical therapy.
Public records.
The California Public Records Act requires state and local
agencies to make their records available for public inspection and,
upon request of any person, to provide a copy of any public record
unless the record is exempt from disclosure.
This bill would require any state agency that publishes an
Internet Web site to include on the homepage of that site specified
information about how to contact the agency, how to request records
under the act, a form for submitting online requests for records,
agency officials' statements of economic interests, agency officials'
employment or consulting contracts, the terms of litigation
settlements, copies of records disclosed under the act, and copies of
letters of other communication denying a request for a record. It
would authorize any person to bring an action to enforce the duty of
a state agency to post this information and would provide for
penalties including monetary awards to be paid by agency officers or
employees in specified circumstances.
Existing law, the Physical Therapy Practice Act, licenses and
regulates physical therapists by the Physical Therapy Board of
California, and provides that a violation of the act is a crime.
Existing law defines physical therapy for purposes of the act.
This bill would specify that nothing in the act prohibits an
individual not licensed or registered under the Medical Practice Act
from providing assistance and advice to a consumer regarding physical
fitness, including developing training regimens. The bill would also
require the individual to make certain disclosures to the consumer
regarding any medical conditions the consumer may have, including
that the consumer should consult with the appropriate health care
professional before proceeding with the training. Because a violation
of the bill's provisions would be a crime, the bill would impose a
state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 6253.3 is added to the
Government Code , to read:
6253.3. Every state agency that publishes an Internet Web site
shall include on the homepage of that site, prominently displayed
without scrolling, the words "Public Information Center," which shall
be followed by, or shall link to on another page, all of the
following:
(a) Under the words "Whom to Contact," the name, title, mailing
address, telephone number, and e-mail address of the public
information officer or other person or persons to whom requests for
inspection or copying of records pursuant to the California Public
Records Act, or informal requests for simple factual information,
should be directed.
(b) Under the words "How to Request Records," the written
guidelines authorized or required under subdivision (a), and an HTML
form for submitting online requests under the California Public
Records Act, consisting of all of the following labeled fields:
(1) Today's date.
(2) My name (optional).
(3) My e-mail address (optional).
(4) My postal address (optional).
(5) My telephone number (optional).
(6) I am interested in the following records or information:
(7) Where can I inspect these records
(8) Send me copies of the records without inspection.
(9) Send me a fee estimate before copying.
The HTML form shall be designed to send a copy of the request
immediately and automatically to the e-mail address from which it was
sent.
(c) Within 24 hours after its filing, under the words "Officials'
Economic Interests," the most current statement of economic interests
filed by every officer, employee, or consultant of the agency
required to file such reports under Sections 87200 or 87300.
(d) Within 24 hours after its effective date, under the words
"Officials' Employment or Consulting Contracts," all terms of every
employment, consulting, or other contract for services to which the
agency and any individual are, or have been, parties in the current
calendar year.
(e) Within 24 hours after its effective date, under the words
"Lawsuit Settlements," the full text of every settlement of
litigation, and of every agreement to compensate any person for
foregoing litigation, involving the agency as a party within the
current calendar year.
(f) Under the words "Records Disclosed This Year," a copy of every
record disclosed by the agency without redaction within the current
calendar year or, if the volume of records disclosed pursuant to a
particular request exceeds 10 pages, a copy of the requester's own
description of the records that were produced.
(g) Under the words "Records Withheld This Year," a copy of every
letter or other communication to a requester denying access to all or
part of any record, sent within the current calendar year.
(h) Beginning January 1 of the second year after the effective
date of this subdivision, under the word "Archive," a link to a
term-searchable archive of the items posted under subdivisions (c),
(d), (e), and (f) in preceding years.
(i) Beginning three months from the effective date of this
subdivision, any agency determined by the court to have failed to
comply with the requirements of subdivision (a) or (b), or to have
fallen more than 15 days behind in posting or archiving the
information required under subdivisions (c), (d), (e), (f), (g), and
(h), in addition to any other remedy to bring the agency into
compliance with this subdivision, may be ordered by a court to post,
immediately after the heading "Public Information Center," under the
words "Our Failure to Comply," a copy of the court's findings in such
a compliance action. The duration of such posting shall rest with
the sound discretion of the court, but in no case should be less than
30 days.
SEC. 2. Section 6258 of the Government
Code is amended to read:
6258. Any person 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 any public record or class of public records under this
chapter , or to enforce the d uty of a state
agency to post information in its office and on its Internet Web
site, if any, in compliance with Section 6253.3 . The times
for responsive pleadings and for hearings in these proceedings shall
be set by the judge of the court with the object of securing a
decision as to these matters at the earliest possible time.
SEC. 3. Section 6259 of the Government
Code is amended to read:
6259. (a) Whenever it is made to appear by verified petition to
the superior court of the county where the records or some part
thereof are situated that certain public records are being improperly
withheld from a member of the public, the court shall order the
officer or person charged with withholding the records to disclose
the public record or show cause why he or she should not do so. The
court shall decide the case after examining the record in camera, if
permitted by subdivision (b) of Section 915 of the Evidence Code,
papers filed by the parties and any oral argument and additional
evidence as the court may allow.
(b) If the court finds that the public official's decision to
refuse disclosure is not justified under Section 6254 or 6255, he or
she shall order the public official to make the record public. If the
judge determines that the public official was justified in refusing
to make the record public, he or she shall return the item to the
public official without disclosing its content with an order
supporting the decision refusing disclosure.
(c) In an action filed on or after January 1, 1991, an order of
the court, either directing disclosure by a public official or
supporting the decision of the public official refusing disclosure,
is not a final judgment or order within the meaning of Section 904.1
of the Code of Civil Procedure from which an appeal may be taken, but
shall be immediately reviewable by petition to the appellate court
for the issuance of an extraordinary writ. Upon entry of any order
pursuant to this section, a party shall, in order to obtain review of
the order, file a petition within 20 days after service upon him or
her of a written notice of entry of the order, or within such further
time not exceeding an additional 20 days as the trial court may for
good cause allow. If the notice is served by mail, the period within
which to file the petition shall be increased by five days. A stay of
an order or judgment shall not be granted unless the petitioning
party demonstrates it will otherwise sustain irreparable damage and
probable success on the merits. Any person who fails to obey the
order of the court shall be cited to show cause why he or she is not
in contempt of court.
(d) The court shall award court costs and reasonable attorney fees
to the plaintiff should the plaintiff prevail in litigation filed
pursuant to this section. The costs and fees shall be paid by the
public agency of which the public official is a member or employee
and shall not become a personal liability of the public official. If
the court finds that the plaintiff's case is clearly frivolous, it
shall award court costs and reasonable attorney fees to the public
agency.
(e) (1) If a state or local agency (A) declines to comply with a
request to inspect or copy a record that is publicly accessible
pursuant to this chapter; (B) delays in responding to the request, or
in producing the requested records, for reasons that are unstated to
the requester, or that are unsupported by compelling circumstances,
or that otherwise demonstrate a lack of the diligence required to
make records available promptly, without delay or obstruction,
pursuant to the standards and deadlines of Section 6253; (C) imposes
conditions precedent to access to records that are not authorized by
this chapter, including, but not limited to, the payment of copy fees
in excess of an applicable statutory fee or the direct cost of
duplication pursuant to Section 6253 or 6253.9; or (D) otherwise
frustrates timely and complete access; and the court determines that
the agency acted in bad faith or with knowledge that the request
sought nonexempt records, the court, in its discretion, may make an
award not to exceed one hundred dollars ($100) per day for each day,
as determined by the court, that the agency's action resulted in the
denial of the plaintiff's right to copy or inspect the record or
records in question.
(2) In determining the amount of an award under this subdivision,
the court shall consider all the facts and circumstances surrounding
the agency's decision, including, but not limited to, all of the
following:
(A) Whether the agency unreasonably failed to respond within the
time periods set forth in Section 6253 or otherwise engaged in
conduct that caused undue delay.
(B) Whether the agency's justification for denying the request was
reasonably based upon its perceived obligation to protect the rights
of persons or entities identified in the requested records.
(C) Whether the agency has developed publicly accessible internal
operating procedures or guidelines under Section 6253.4.
(D) Whether the plaintiff acted in good faith in pursuing the
request.
(E) Whether the agency's denial or other conduct inconsistent with
this chapter was based on a reasonable interpretation of the law.
(f) If the court determines that the agency's unlawful denial or
other conduct was not based on a reasonable interpretation of the law
and was unsupported or uniformly contradicted by legal authority
interpreting or applying this chapter, the award shall be the
liability of the person named in the notification of denial pursuant
to subdivision (d) of Section 6253, or if no such notification was
made or the notification failed to name the responsible person, the
liability of the chief executive officer of the agency; or, if the
denial or other conduct inconsistent with this chapter relied on the
advice of counsel, of the attorney providing that advice. Where the
plaintiff makes a preliminary showing that the agency's denial or
other conduct was not based on a reasonable interpretation of the law
and was unsupported or uniformly contradicted by legal authority
interpreting or applying this chapter, legal counsel's advice or
other communication concerning the request at issue shall not be
privileged pursuant to Section 954 of the Evidence Code or any other
provision of law.
(g) An award pursuant to this section shall not exceed a total of
ten thousand dollars ($10,000) for the record or records in question.
The time basis for an award shall not include the period of time
when a request for an opinion is pending with the Attorney General
pursuant to Section 6257 or the period of time when a court is
considering the plaintiff's petition.
SEC. 4. Section 6259.1 is added to the
Government Code , to read:
6259.1. (a) Whenever it is made to appear by verified petition to
the superior court of the county wherein the plaintiff resides that
a state or local agency has failed to comply with the requirements of
Section 6253.3, the court shall order the officer or person charged
with posting the information as required by that section, or if no
such person has been appointed, the senior officer in the agency, to
effectuate compliance forthwith or show cause why he or she should
not do so. The court shall decide the case after examining papers
filed by the parties and any oral argument and additional evidence as
the court may allow.
(b) If the court finds that the agency has failed to comply with
Section 6253.3, he or she shall order the officer or person ordered
to show cause to effectuate compliance forthwith.
(c) Upon entry of any order pursuant to this section, a party
shall, in order to obtain review of the order, file a petition within
20 days after service upon him or her of a written notice of entry
of the order, or within such further time not exceeding an additional
20 days as the trial court may for good cause allow. If the notice
is served by mail, the period within which to file the petition shall
be increased by five days. A stay of an order or judgment shall not
be granted unless the petitioning party demonstrates that it will
otherwise sustain irreparable damage and probable success on the
merits. Any person who fails to obey the order of the court shall be
cited to show cause why he or she is not in contempt of court.
(d) If the plaintiff prevails in an action filed pursuant to this
section, the court shall award court and discovery costs and
reasonable attorney's fees to the plaintiff. For the purposes of this
subdivision, a plaintiff prevails, even in the absence of a judicial
determination in his or her favor, if filing of the action is
followed by the agency's coming into compliance with Section 6253.3,
provided that the plaintiff has made a written demand for compliance,
sent to the agency at least 30 days prior to filing the action,
including an unambiguous statement of the alleged facts of
noncompliance and a warning that an enforcement action may follow.
The costs and fees shall be paid by the state or local agency of
which the public official is a member or employee and shall not
become a personal liability of the public official. If the court
finds that the plaintiff's case is clearly frivolous, it shall award
court costs and reasonable attorney's fees to the agency.
(e) Commencing three months from the effective date of this
subdivision, any agency determined by the court to have failed to
comply with the requirements of subdivision (a) or (b) of Section
6253.3, or to have fallen more than 15 days behind in posting or
archiving the information required by subdivisions (c), (d), (e),
(f), (g), and (h) of Section 6253.3, in addition to any order to
bring the agency into compliance with these provisions, may be
ordered to post on its homepage, immediately after the heading
"Public Information Center," under the words "Our Failure to Comply,"
a copy of the court's findings and order. The duration of this
posting shall rest with the sound discretion of the court, but in no
case may be less than 30 days.
SECTION 1. Section 2620 of the Business and
Professions Code is amended to read:
2620. (a) Physical therapy means the art and science of physical
or corrective rehabilitation or of physical or corrective treatment
of any bodily or mental condition of any person by the use of the
physical, chemical, and other properties of heat, light, water,
electricity, sound, massage, and active, passive, and resistive
exercise, and shall include physical therapy evaluation, treatment
planning, instruction and consultative services. The practice of
physical therapy includes the promotion and maintenance of physical
fitness to enhance the bodily movement related health and wellness of
individuals through the use of physical therapy interventions. The
use of roentgen rays and radioactive materials, for diagnostic and
therapeutic purposes, and the use of electricity for surgical
purposes, including cauterization, are not authorized under the term
"physical therapy" as used in this chapter, and a license issued
pursuant to this chapter does not authorize the diagnosis of disease.
(b) Nothing in this section shall be construed to restrict or
prohibit other healing arts practitioners licensed or registered
under this division from practice within the scope of their license
or registration.
(c) (1) Nothing in this section prohibits an individual not
licensed or registered under this division from providing assistance
and advice to a consumer regarding physical fitness, including
developing training regimens and implementing and maintaining those
regimens.
(2) An individual who provides services pursuant to this
subdivision shall disclose to the consumer that injuries, ailments,
or medical conditions that the consumer may have could affect
implementation and maintenance of the training regimen, and that the
consumer should consult with the appropriate health care professional
before proceeding with the training.
SEC. 2. No reimbursement is required by this
act pursuant to Section 6 of Article XIII B of the California
Constitution because the only costs that may be incurred by a local
agency or school district will be incurred because this act creates a
new crime or infraction, eliminates a crime or infraction, or
changes the penalty for a crime or infraction, within the meaning of
Section 17556 of the Government Code, or changes the definition of a
crime within the meaning of Section 6 of Article XIII B of the
California Constitution.