BILL NUMBER: AB 2927 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 7, 2006
AMENDED IN SENATE JUNE 22, 2006
AMENDED IN ASSEMBLY MAY 26, 2006
AMENDED IN ASSEMBLY APRIL 17, 2006
INTRODUCED BY Assembly Member Leno
FEBRUARY 24, 2006
An act to amend Sections 6254, 6258, and 6259
of, and to add Sections 6253.3 , 6257, and 6259.1 to, the
Government Code, relating to public records.
LEGISLATIVE COUNSEL'S DIGEST
AB 2927, as amended, Leno 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 that is not exempt from disclosure under the act 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 in which
the agency is a named party, copies of records disclosed under the
act, and copies of letters of other communication denying a request
for a record with the requester's personal information redacted. 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 the agency.
Existing law requires state and local law enforcement agencies to
make public certain information, except to the extent that disclosure
of a particular item of information would endanger the safety of a
person involved in an investigation or would endanger the successful
completion of the investigation or a related investigation.
This bill would also require state and local law enforcement
agencies to make public specified information of every individual who
has been held in custody for the purpose of booking. The imposition
of this new requirement on local agencies 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, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
The bill would also authorize a person to request the Attorney
General to review a state or local agency's denial of a written
request to inspect or receive a copy of a public record and would
require the Attorney General to issue a written decision within 20
working days of the date the written request and written response or
lack of response of an agency is received by the Attorney General.
The bill would require the Attorney General to maintain copies of the
opinions issued pursuant to these provisions, to publish the
opinions annually in a special volume, and make them available on the
Internet.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes no .
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 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) of Section
6253.4, 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 10 calendar days 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 who is required to file such reports under Sections 87200
or 87300, and who is exempt from civil service or who is employed in
a career executive assignment position.
(d) Within 10 calendar days after its signing or other binding
event, under the words "Officials' Employment or Consulting
Contracts," a copy or all terms of every employment, consulting, or
other contract for an individual's services to which the agency and
any individual are parties. The copy or terms of the contract shall
be accessible for as long as the contract is in effect and shall
include any signing bonus, housing loan or allowance, relocation
allowance, transportation allowance, or other economic benefit of any
kind.
(e) Within 10 calendar days after its effective date, under the
words "Lawsuit Settlements," the full text of every settlement of
civil litigation in which the agency is a named party, and of every
agreement to compensate any person for foregoing litigation,
involving a payment by the agency of fifty thousand dollars ($50,000)
or more to an adverse 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, except publications and mass-produced materials, 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 disclosed.
(g) Under the words "Records Withheld This Year," a copy of every
request, letter, or other communication from, and the agency's reply
to, a requester denying access to all or part of any record, sent
within the current calendar year. The agency shall redact the name
and personal identifying information of the requester.
(h) Beginning January 1 of the second year after the effective
date of this subdivision, under the word "Archive," a link to a
text-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.
(j) Nothing in this section shall be construed to require a state
agency to display any information on its Internet Web site that is
exempt from disclosure pursuant to this chapter.
SEC. 2. Section 6254 of the Government Code is
amended to read:
6254. Except as provided in Sections 6254.7 and 6254.13, nothing
in this chapter shall be construed to require disclosure of records
that are any of the following:
(a) Preliminary drafts, notes, or interagency or intra-agency
memoranda that are not retained by the public agency in the ordinary
course of business, provided that the public interest in withholding
those records clearly outweighs the public interest in disclosure.
(b) Records pertaining to pending litigation to which the public
agency is a party, or to claims made pursuant to Division 3.6
(commencing with Section 810), until the pending litigation or claim
has been finally adjudicated or otherwise settled.
(c) Personnel, medical, or similar files, the disclosure of which
would constitute an unwarranted invasion of personal privacy.
(d) Contained in or related to any of the following:
(1) Applications filed with any state agency responsible for the
regulation or supervision of the issuance of securities or of
financial institutions, including, but not limited to, banks, savings
and loan associations, industrial loan companies, credit unions, and
insurance companies.
(2) Examination, operating, or condition reports prepared by, on
behalf of, or for the use of, any state agency referred to in
paragraph (1).
(3) Preliminary drafts, notes, or interagency or intra-agency
communications prepared by, on behalf of, or for the use of, any
state agency referred to in paragraph (1).
(4) Information received in confidence by any state agency
referred to in paragraph (1).
(e) Geological and geophysical data, plant production data, and
similar information relating to utility systems development, or
market or crop reports, that are obtained in confidence from any
person.
(f) Records of complaints to, or investigations conducted by, or
records of intelligence information or security procedures of, the
office of the Attorney General and the Department of Justice, and any
state or local police agency, or any investigatory or security files
compiled by any other state or local police agency, or any
investigatory or security files compiled by any other state or local
agency for correctional, law enforcement, or licensing purposes,
except that state and local law enforcement agencies shall disclose
the names and addresses of persons involved in, or witnesses other
than confidential informants to, the incident, the description of any
property involved, the date, time, and location of the incident, all
diagrams, statements of the parties involved in the incident, the
statements of all witnesses, other than confidential informants, to
the victims of an incident, or an authorized representative thereof,
an insurance carrier against which a claim has been or might be made,
and any person suffering bodily injury or property damage or loss,
as the result of the incident caused by arson, burglary, fire,
explosion, larceny, robbery, carjacking, vandalism, vehicle theft, or
a crime as defined by subdivision (b) of Section 13951, unless the
disclosure would endanger the safety of a witness or other person
involved in the investigation, or unless disclosure would endanger
the successful completion of the investigation or a related
investigation. However, nothing in this division shall require the
disclosure of that portion of those investigative files that reflect
the analysis or conclusions of the investigating officer.
Customer lists provided to a state or local police agency by an
alarm or security company at the request of the agency shall be
construed to be records subject to this subdivision.
Notwithstanding any other provision of this subdivision, state and
local law enforcement agencies shall make public the following
information, except to the extent that disclosure of a particular
item of information would endanger the safety of a person involved in
an investigation or would endanger the successful completion of the
investigation or a related investigation:
(1) The full name and occupation of every individual arrested by
the agency or the agency that has or had custody of the individual
for the purpose of booking, the individual's physical description
including date of birth, color of eyes and hair, sex, height and
weight, the time and date of arrest, the time and date of booking,
the location of the arrest, the factual circumstances surrounding the
arrest, the amount of bail set, the time and manner of release or
the location where the individual is currently being held, and all
charges the individual is being held upon, including any outstanding
warrants from other jurisdictions and parole or probation holds.
(2) Subject to the restrictions imposed by Section 841.5 of the
Penal Code, the time, substance, and location of all complaints or
requests for assistance received by the agency and the time and
nature of the response thereto, including, to the extent the
information regarding crimes alleged or committed or any other
incident investigated is recorded, the time, date, and location of
occurrence, the time and date of the report, the name and age of the
victim, the factual circumstances surrounding the crime or incident,
and a general description of any injuries, property, or weapons
involved. The name of a victim of any crime defined by Section 220,
261, 261.5, 262, 264, 264.1, 273a, 273d, 273.5, 286, 288, 288a, 289,
422.6, 422.7, 422.75, or 646.9 of the Penal Code may be withheld at
the victim's request, or at the request of the victim's parent or
guardian if the victim is a minor. When a person is the victim of
more than one crime, information disclosing that the person is a
victim of a crime defined by Section 220, 261, 261.5, 262, 264,
264.1, 273a, 273d, 286, 288, 288a, 289, 422.6, 422.7, 422.75, or
646.9 of the Penal Code may be deleted at the request of the victim,
or the victim's parent or guardian if the victim is a minor, in
making the report of the crime, or of any crime or incident
accompanying the crime, available to the public in compliance with
the requirements of this paragraph.
(3) Subject to the restrictions of Section 841.5 of the Penal Code
and this subdivision, the current address of every individual
arrested by the agency or the agency that has or had custody of the
individual for the purpose of booking, and the current address of the
victim of a crime, where the requester declares under penalty of
perjury that the request is made for a scholarly, journalistic,
political, or governmental purpose, or that the request is made for
investigation purposes by a licensed private investigator as
described in Chapter 11.3 (commencing with Section 7512) of Division
3 of the Business and Professions Code, except that the address of
the victim of any crime defined by Section 220, 261, 261.5, 262, 264,
264.1, 273a, 273d, 273.5, 286, 288, 288a, 289, 422.6, 422.7, 422.75,
or 646.9 of the Penal Code shall remain confidential. Address
information obtained pursuant to this paragraph may not be used
directly or indirectly, or furnished to another, to sell a product or
service to any individual or group of individuals, and the requester
shall execute a declaration to that effect under penalty of perjury.
Nothing in this paragraph shall be construed to prohibit or limit a
scholarly, journalistic, political, or government use of address
information obtained pursuant to this paragraph.
(g) Test questions, scoring keys, and other examination data used
to administer a licensing examination, examination for employment, or
academic examination, except as provided for in Chapter 3
(commencing with Section 99150) of Part 65 of the Education Code.
(h) The contents of real estate appraisals or engineering or
feasibility estimates and evaluations made for or by the state or
local agency relative to the acquisition of property, or to
prospective public supply and construction contracts, until all of
the property has been acquired or all of the contract agreement
obtained. However, the law of eminent domain shall not be affected by
this provision.
(i) Information required from any taxpayer in connection with the
collection of local taxes that is received in confidence and the
disclosure of the information to other persons would result in unfair
competitive disadvantage to the person supplying the information.
(j) Library circulation records kept for the purpose of
identifying the borrower of items available in libraries, and library
and museum materials made or acquired and presented solely for
reference or exhibition purposes. The exemption in this subdivision
shall not apply to records of fines imposed on the borrowers.
(k) Records, the disclosure of which is exempted or prohibited
pursuant to federal or state law, including, but not limited to,
provisions of the Evidence Code relating to privilege.
(l) Correspondence of and to the Governor or employees of the
Governor's office or in the custody of or maintained by the Governor'
s Legal Affairs Secretary, provided that public records shall not be
transferred to the custody of the Governor's Legal Affairs Secretary
to evade the disclosure provisions of this chapter.
(m) In the custody of or maintained by the Legislative Counsel,
except those records in the public database maintained by the
Legislative Counsel that are described in Section 10248.
(n) Statements of personal worth or personal financial data
required by a licensing agency and filed by an applicant with the
licensing agency to establish his or her personal qualification for
the license, certificate, or permit applied for.
(o) Financial data contained in applications for financing under
Division 27 (commencing with Section 44500) of the Health and Safety
Code, where an authorized officer of the California Pollution Control
Financing Authority determines that disclosure of the financial data
would be competitively injurious to the applicant and the data is
required in order to obtain guarantees from the United States Small
Business Administration. The California Pollution Control Financing
Authority shall adopt rules for review of individual requests for
confidentiality under this section and for making available to the
public those portions of an application that are subject to
disclosure under this chapter.
(p) Records of state agencies related to activities governed by
Chapter 10.3 (commencing with Section 3512), Chapter 10.5 (commencing
with Section 3525), and Chapter 12 (commencing with Section 3560) of
Division 4 of Title 1, that reveal a state agency's deliberative
processes, impressions, evaluations, opinions, recommendations,
meeting minutes, research, work products, theories, or strategy, or
that provide instruction, advice, or training to employees who do not
have full collective bargaining and representation rights under
these chapters. Nothing in this subdivision shall be construed to
limit the disclosure duties of a state agency with respect to any
other records relating to the activities governed by the employee
relations acts referred to in this subdivision.
(q) Records of state agencies related to activities governed by
Article 2.6 (commencing with Section 14081), Article 2.8 (commencing
with Section 14087.5), and Article 2.91 (commencing with Section
14089) of Chapter 7 of Part 3 of Division 9 of the Welfare and
Institutions Code, that reveal the special negotiator's deliberative
processes, discussions, communications, or any other portion of the
negotiations with providers of health care services, impressions,
opinions, recommendations, meeting minutes, research, work product,
theories, or strategy, or that provide instruction, advice, or
training to employees.
Except for the portion of a contract containing the rates of
payment, contracts for inpatient services entered into pursuant to
these articles, on or after April 1, 1984, shall be open to
inspection one year after they are fully executed. In the event that
a contract for inpatient services that is entered into prior to April
1, 1984, is amended on or after April 1, 1984, the amendment, except
for any portion containing the rates of payment, shall be open to
inspection one year after it is fully executed. If the California
Medical Assistance Commission enters into contracts with health care
providers for other than inpatient hospital services, those contracts
shall be open to inspection one year after they are fully executed.
Three years after a contract or amendment is open to inspection
under this subdivision, the portion of the contract or amendment
containing the rates of payment shall be open to inspection.
Notwithstanding any other provision of law, the entire contract or
amendment shall be open to inspection by the Joint Legislative Audit
Committee and the Legislative Analyst's Office. The committee and
that office shall maintain the confidentiality of the contracts and
amendments until the time a contract or amendment is fully open to
inspection by the public.
(r) Records of Native American graves, cemeteries, and sacred
places and records of Native American places, features, and objects
described in Sections 5097.9 and 5097.993 of the Public Resources
Code maintained by, or in the possession of, the Native American
Heritage Commission, another state agency, or a local agency.
(s) A final accreditation report of the Joint Commission on
Accreditation of Hospitals that has been transmitted to the State
Department of Health Services pursuant to subdivision (b) of Section
1282 of the Health and Safety Code.
(t) Records of a local hospital district, formed pursuant to
Division 23 (commencing with Section 32000) of the Health and Safety
Code, or the records of a municipal hospital, formed pursuant to
Article 7 (commencing with Section 37600) or Article 8 (commencing
with Section 37650) of Chapter 5 of Division 3 of Title 4 of this
code, that relate to any contract with an insurer or nonprofit
hospital service plan for inpatient or outpatient services for
alternative rates pursuant to Section 10133 or 11512 of the Insurance
Code. However, the record shall be open to inspection within one
year after the contract is fully executed.
(u) (1) Information contained in applications for licenses to
carry firearms issued pursuant to Section 12050 of the Penal Code by
the sheriff of a county or the chief or other head of a municipal
police department that indicates when or where the applicant is
vulnerable to attack or that concerns the applicant's medical or
psychological history or that of members of his or her family.
(2) The home address and telephone number of peace officers,
judges, court commissioners, and magistrates that are set forth in
applications for licenses to carry firearms issued pursuant to
Section 12050 of the Penal Code by the sheriff of a county or the
chief or other head of a municipal police department.
(3) The home address and telephone number of peace officers,
judges, court commissioners, and magistrates that are set forth in
licenses to carry firearms issued pursuant to Section 12050 of the
Penal Code by the sheriff of a county or the chief or other head of a
municipal police department.
(v) (1) Records of the Major Risk Medical Insurance Program
related to activities governed by Part 6.3 (commencing with Section
12695) and Part 6.5 (commencing with Section 12700) of Division 2 of
the Insurance Code, and that reveal the deliberative processes,
discussions, communications, or any other portion of the negotiations
with health plans, or the impressions, opinions, recommendations,
meeting minutes, research, work product, theories, or strategy of the
board or its staff, or records that provide instructions, advice, or
training to employees.
(2) (A) Except for the portion of a contract that contains the
rates of payment, contracts for health coverage entered into pursuant
to Part 6.3 (commencing with Section 12695) or Part 6.5 (commencing
with Section 12700) of Division 2 of the Insurance Code, on or after
July 1, 1991, shall be open to inspection one year after they have
been fully executed.
(B) In the event that a contract for health coverage that is
entered into prior to July 1, 1991, is amended on or after July 1,
1991, the amendment, except for any portion containing the rates of
payment, shall be open to inspection one year after the amendment has
been fully executed.
(3) Three years after a contract or amendment is open to
inspection pursuant to this subdivision, the portion of the contract
or amendment containing the rates of payment shall be open to
inspection.
(4) Notwithstanding any other provision of law, the entire
contract or amendments to a contract shall be open to inspection by
the Joint Legislative Audit Committee. The committee shall maintain
the confidentiality of the contracts and amendments thereto, until
the contract or amendments to a contract is open to inspection
pursuant to paragraph (3).
(w) (1) Records of the Major Risk Medical Insurance Program
related to activities governed by Chapter 14 (commencing with Section
10700) of Part 2 of Division 2 of the Insurance Code, and that
reveal the deliberative processes, discussions, communications, or
any other portion of the negotiations with health plans, or the
impressions, opinions, recommendations, meeting minutes, research,
work product, theories, or strategy of the board or its staff, or
records that provide instructions, advice, or training to employees.
(2) Except for the portion of a contract that contains the rates
of payment, contracts for health coverage entered into pursuant to
Chapter 14 (commencing with Section 10700) of Part 2 of Division 2 of
the Insurance Code, on or after January 1, 1993, shall be open to
inspection one year after they have been fully executed.
(3) Notwithstanding any other provision of law, the entire
contract or amendments to a contract shall be open to inspection by
the Joint Legislative Audit Committee. The committee shall maintain
the confidentiality of the contracts and amendments thereto, until
the contract or amendments to a contract is open to inspection
pursuant to paragraph (2).
(x) Financial data contained in applications for registration, or
registration renewal, as a service contractor filed with the Director
of the Department of Consumer Affairs pursuant to Chapter 20
(commencing with Section 9800) of Division 3 of the Business and
Professions Code, for the purpose of establishing the service
contractor's net worth, or financial data regarding the funded
accounts held in escrow for service contracts held in force in this
state by a service contractor.
(y) (1) Records of the Managed Risk Medical Insurance Board
related to activities governed by Part 6.2 (commencing with Section
12693) or Part 6.4 (commencing with Section 12699.50) of Division 2
of the Insurance Code, and that reveal the deliberative processes,
discussions, communications, or any other portion of the negotiations
with health plans, or the impressions, opinions, recommendations,
meeting minutes, research, work product,
theories, or strategy of the board or its staff,
or records that provide instructions, advice, or training to
employees.
(2) (A) Except for the portion of a contract that contains the
rates of payment, contracts entered into pursuant to Part 6.2
(commencing with Section 12693) or Part 6.4 (commencing with Section
12699.50) of Division 2 of the Insurance Code, on or after January 1,
1998, shall be open to inspection one year after they have been
fully executed.
(B) In the event that a contract entered into pursuant to Part 6.2
(commencing with Section 12693) or Part 6.4 (commencing with Section
12699.50) of Division 2 of the Insurance Code is amended, the
amendment shall be open to inspection one year after the amendment
has been fully executed.
(3) Three years after a contract or amendment is open to
inspection pursuant to this subdivision, the portion of the contract
or amendment containing the rates of payment shall be open to
inspection.
(4) Notwithstanding any other provision of law, the entire
contract or amendments to a contract shall be open to inspection by
the Joint Legislative Audit Committee. The committee shall maintain
the confidentiality of the contracts and amendments thereto until the
contract or amendments to a contract are open to inspection pursuant
to paragraph (2) or (3).
(5) The exemption from disclosure provided pursuant to this
subdivision for the contracts, deliberative processes, discussions,
communications, negotiations with health plans, impressions,
opinions, recommendations, meeting minutes, research, work product,
theories, or strategy of the board or its staff shall also apply to
the contracts, deliberative processes, discussions, communications,
negotiations with health plans, impressions, opinions,
recommendations, meeting minutes, research, work product, theories,
or strategy of applicants pursuant to Part 6.4 (commencing with
Section 12699.50) of Division 2 of the Insurance Code.
(z) Records obtained pursuant to paragraph (2) of subdivision (c)
of Section 2891.1 of the Public Utilities Code.
(aa) A document prepared by or for a state or local agency that
assesses its vulnerability to terrorist attack or other criminal acts
intended to disrupt the public agency's operations and that is for
distribution or consideration in a closed session.
(bb) Critical infrastructure information, as defined in Section
131(3) of Title 6 of the United States Code, that is voluntarily
submitted to the California Office of Homeland Security for use by
that office, including the identity of the person who or entity that
voluntarily submitted the information. As used in this subdivision,
"voluntarily submitted" means submitted in the absence of the office
exercising any legal authority to compel access to or submission of
critical infrastructure information. This subdivision shall not
affect the status of information in the possession of any other state
or local governmental agency.
(cc) All information provided to the Secretary of State by a
person for the purpose of registration in the Advance Health Care
Directive Registry, except that those records shall be released at
the request of a health care provider, a public guardian, or the
registrant's legal representative.
Nothing in this section prevents any agency from opening its
records concerning the administration of the agency to public
inspection, unless disclosure is otherwise prohibited by law.
Nothing in this section prevents any health facility from
disclosing to a certified bargaining agent relevant financing
information pursuant to Section 8 of the National Labor Relations
Act.
SEC. 2. Section 6257 is added to the
Government Code , to read:
6257. (a) A person may request the Attorney General to review a
state or local agency's denial of a written request to inspect or
receive a copy of a public record by delivering a copy of the request
and the written response by the agency denying, in whole or in part,
the request to the office of the Attorney General within 20 days of
receipt of the agency's written denial. In the case of the failure of
an agency to provide any response under Section 6253 to a public
records request within the time limits specified by this chapter, the
person may seek review by the Attorney General by providing a copy
of the request and the circumstances under which it was sent to the
agency no less than 20 days and no more than 40 days after the
request was delivered or mailed to the agency. The Attorney General
may grant relief from the 40-day time limit upon a showing by the
person seeking relief that he or she refrained from requesting review
within the 40-day time limit because the person reasonably relied
upon representations of the agency that a response would be
forthcoming.
The person seeking review shall demonstrate by means of written
proof of service or other credible and reliable means that a copy of
his or her request for review has been delivered to the denying
agency. Within 20 working days of receipt of the request for review
that complies with the requirements of this subdivision, the Attorney
General shall issue a written opinion stating whether the agency's
response or lack of response complied with provisions of this
chapter.
(b) For good cause, the Attorney General may extend by 30 working
days the time to issue an opinion under this section by sending
written notice to the complaining party and a copy to the denying
agency stating the reasons for the extension and the day on which a
decision is expected to be issued. As used in this section, "good
cause" means any of the following:
(1) The need to obtain additional information from the agency or
the requester.
(2) The need to conduct research on issues of first impression.
(3) An unmanageable workload.
(4) Unanticipated absence of staff assigned to a particular
request, or similar unavoidable circumstance.
(c) The Attorney General may solicit additional information or
explanation from the denying agency, including copies of the records
claimed to be exempt, or a detailed explanation of the content of the
information in those records. The denying agency may, within 10
working days from the date of receipt of the request pursuant to
subdivision (a), submit any additional information or explanation it
deems relevant. However, the records or other information for which
an exemption is claimed shall not be provided except in response to a
request by the Attorney General and shall not be disclosed by the
Attorney General. The Attorney General shall return or destroy
nondisclosable records received under this subdivision upon
completion of the review and shall not use the records for any other
purpose. The agency need not provide records or information but
failure to do so without adequate justification under the
circumstances of the case may be considered in assessing the
sufficiency of the agency's written denial under review.
(d) If the Attorney General or the Department of Justice is the
agency that is the subject of the public records request, the request
for review under this section shall be treated as a request for
reconsideration and, where possible, shall be reviewed by members of
the Attorney General's office not involved in the original decision.
(e) Upon completion of the opinion pursuant to this section, the
Attorney General shall immediately mail a copy of it to the person
requesting review and to the state or local agency that denied access
to the record in question.
(f) The Attorney General shall maintain copies of opinions issued
pursuant to this section at each of his or her legal offices for
purposes of public inspection. The Attorney General shall cause to be
published annually a special volume of opinions issued under this
section and shall make the opinions available on the Internet. The
Attorney General may charge a fee for the sale of the volumes not to
exceed the reasonable cost of publication and distribution.
(g) Notwithstanding any other provision of law, except where the
records of the Attorney General or the Department of Justice are at
issue, neither the Attorney General, nor the Department of Justice,
nor any of its staff shall be subject to suit or to discovery in any
suit for any action taken as a result of review under this section.
(h) An opinion issued under this section does not affect the right
of a person to enforce his or her right to inspect or to receive a
copy of any public record through an action pursuant to Sections 6258
and 6259. A person shall not be required to exhaust the
administrative remedies available in this section prior to filing a
legal action. If a person elects to bring an action under Sections
6258 and 6259, the Attorney General shall not proceed under this
section. If a person elects to seek review under this section, no
legal action may be brought against the agency whose decision is the
subject of the opinion until 10 days after the issuance and mailing
of the opinion. A person may withdraw, by written notice, his or her
request for review under this section if the withdrawal notice is
received by the Attorney General prior to the issuance of an opinion.
(i) (1) Representation of a state agency by the Attorney General
involving advice as to a request for inspection or copies of public
records may provide a basis for that agency to claim an
attorney-client relationship that would preclude the Attorney General
from providing an opinion under this section regarding that request.
(2) A state agency against which an action is brought pursuant to
Sections 6258 and 6259, after a receipt of an adverse opinion under
this section, is authorized to retain counsel, other than the
Attorney General, who shall be compensated at the same rate that the
Attorney General would charge for legal services for the defense of
that action.
(3) Except as provided in this section, the Attorney General's
review under this section does not preclude the Attorney General's
representation of the affected state agency on any matter.
(j) The time limits for the Attorney General to respond pursuant
to subdivisions (a) and (b) are directory not mandatory.
(k) This section shall not apply to a request for public records
made to a state agency by a party to a pending proceeding involving
the state agency or an employee of the state agency, or a pending
investigation by the state agency, if the Attorney General has
provided or is providing legal advice or representation to the state
agency with regard to the proceeding or investigation.
SEC. 3. 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 duty 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. 4. 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) An award pursuant to this section shall not exceed a total of
ten thousand dollars ($10,000) for the record or records in question.
SEC. 5. 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 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. 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.
SEC. 6. If the Commission on State Mandates
determines that this act contains costs mandated by the state,
reimbursement to local agencies and school districts for those costs
shall be made pursuant to Part 7 (commencing with Section 17500) of
Division 4 of Title 2 of the Government Code.