BILL ANALYSIS
AB 2927
Page 1
Date of Hearing: April 19, 2006
ASSEMBLY COMMITTEE ON GOVERNMENTAL ORGANIZATION
Jerome Horton, Chair
AB 2927 (Leno) - As Amended: April 18, 2006
SUBJECT : Public records.
SUMMARY : Requires 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 California Public Records 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.
Specifically, this bill :
1)Requires 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 California Public Records 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.
2)Authorizes 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.
3)Specifies that a court may award up to $100 for each day that
a state or local agency denied or delayed a person's legal
privilege to copy or inspect public records, or placed
conditions on access to records not authorized by the
California Public Records Act (CPRA).
4)Specifies that the total award shall not exceed $10,000.
5)Specifies that if a court finds that an agency's denial "or
other conduct" was not based on a reasonable interpretation of
the law, "or uniformly contradicted by legal authority
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interpreting or applying" public disclosure law, the award
shall be the liability of the person responsible for the
denial, or the chief executive officer of the agency if no
particular person was responsible, or an attorney if the
denial was based on the attorney's advice.
EXISTING LAW :
The California Constitution (Article 1, Section 3) provides that
the people have the right to instruct their representatives,
petition government for redress of grievances, and assemble
freely to consult for the common good.
The following state laws regulate the public's access to
government information:
1)The California Public Records Act (PRA) establishes the right
of every person to inspect and obtain copies of all state and
local government documents and records not exempt from
disclosure. The PRA requires specified state and local
agencies to establish written guidelines for accessibility of
records, to post these guidelines at their offices, and to
make them available free of charge to any person requesting
that agency's records.
2)The Ralph M. Brown Act (Brown Act) which governs meetings of
legislative bodies of local agencies (e.g. boards of
supervisors, city councils, school boards) is virtually
identical to the Bagley-Keene Act and requires local
legislative bodies to hold meetings in open forum after public
notice of agenda items. The Brown Act also recognizes the
need, under limited circumstances, for these bodies to meet in
private in order to carry out their responsibilities in the
best interests of the public and provides for specified
exceptions. Both acts (Brown Act & Bagley-Keene) provide that
the covered entities "exist to aid in the conduct of the
people's business" and that their actions "be taken openly and
that their deliberations be conducted openly."
3)The Bagley-Keene Open Meeting Act (Bagley-Keene) requires all
meetings of a state body to be open and public and grants the
right to attend such meetings to all persons, with certain
exceptions. The Bagley-Keene requires these public meetings
to be noticed with an agenda that contains the items of
business that may be acted upon at the meeting. The
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Bagley-Keene defines a state body to mean every state board,
commission, or similar multimember body of the state that is
created by statute or required by law to conduct official
meetings and every commission created by executive order. In
addition, the Bagley-Keene excludes from that definition
certain bodies of the Judiciary and Legislature, among other
things.
4)The Legislative Open Records Act (LORA) provides that the
public may inspect legislative records, as defined, and
mandates that committee and floor analyses records be
permanently preserved either in the appropriate committee
office or with the State Archives. The LORA declares that
"access to information concerning the conduct of the people's
business by the Legislature is a fundamental and necessary
right of every citizen in this state." The LORA provides for
"nondisclosure" of certain records, including, (1) records
pertaining to pending litigation; (2) preliminary drafts,
notes, or legislative memoranda, except as specified; (3)
personnel, medical, or similar files; (4) communications from
private citizens; (5) records in the custody of or maintained
by the Legislative Counsel; (6) correspondence of and to
individual Legislators and their staff; (7) records of
complaints to or investigations conducted by, or records of
security procedures of, the Legislature; and, (8) records
maintained by the majority and minority caucuses.
5)The Grunsky-Burton Open Meeting Act (Grunsky-Burton) provides
that meetings of a house of the Legislature or a committee
shall be open and public and all persons shall be permitted to
attend the meetings. The Grunsky-Burton permits the
Legislature or a committee thereof to hold closed meetings
solely for any of the following purposes: (1) to consider
certain personnel matters; (2) to consider matters affecting
safety and security; (3) to confer with legal counsel
regarding any litigation matter; and, (4) a caucus of the
Members of the Senate, the Members of the Assembly, or the
Members of both houses.
FISCAL EFFECT : Unknown.
COMMENTS :
According to the Author's Office . "Although the California
Public Records Act (CPRA, Government Code Section 6250 et seq.)
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was enacted in 1968 to ensure the public's right to know how
state and local governments are functioning, a January 2006
audit by CalAware reveals that most state agencies are not
complying with the spirit or substance of this important law.
"The poor compliance stands in stark contrast to the will of
California voters who amended the California Constitution in
2004 with the passage of Proposition 59, elevating the public's
right to open government to a constitutionally protected right:
"'The people have the right of access to information concerning
the conduct of the public's business, and, therefore the
meetings of public bodies and the writings of public officials
and agencies shall be open to public scrutiny.' [California
Constitution, Article 1, Section 3(b)(1)]
"Security concerns fueled by a post-9/11 world and the growing
crime of identity theft also have been cited as contributing
factors to making government less responsive than ever to the
public's right to know basic public information.
"This bill seeks to ensure that the public knows how to go about
making a public records request pursuant to CPRA by requiring
state agencies with websites to post this information. In
addition, this bill includes penalties for failure to comply
with CPRA?"
"[F]or records to subject to disclosure, such as the information
on which the CalAware audit was based, public records are to be
made available 'promptly' - a person need not wait for 10 days.
In fact, the CPRA emphasizes that nothing 'shall be construed to
permit an agency to delay or obstruct the inspection or copying
of public records.' [Government Code Section 6253(b) through
(d)] Additionally, courts have found that the request need not
be in writing [Los Angeles Times v. Alameda Corridor
Transportation Authority (2001) 88 Cal. App. 4th 1381]
Background :
The CPRA, fashioned after the federal Freedom of Information Act
(FOIA), defines a "public record" as any recording in any form
of communication or representation, relating to the conduct of
the public's business, that is prepared, own ed, used or
retained by any governmental agency in the State, regardless of
its form or physical characteristics.
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Any person, company, corporation, firm, partnership or
association has the right to inspect public records during
normal business hours or to receive a copy of a record by paying
the cost of duplication, except when the record is exempted from
disclosure by state or federal law. Government representatives
violate the law when they ask who a person is, require
identification or inquire why the information is requested.
Governmental agencies are not allowed to delay the inspection of
public records and, in all circumstances, must respond to a CPRA
request within 10 calendar days. However, for records known to
be disclosable, such as the information on which the CalAware
audit was based, public records are to be made available
"promptly"-a person need not wait for 10 days. In fact, the
CPRA emphasizes that nothing "shall be construed to permit an
agency to delay or obstruct the inspection or copying of public
records." Government Code Section 6253(b) through (d).
Additionally, courts have found that the request need not be in
writing (Los Angeles Times v. Alameda Corridor Transportation
Authority (2001) 88 Cal.App.4th 1381.
CalAware Audit . All initial contacts in this 31-agency audit
were performed over three days: January 17, 19, and 20, 2006.
Agencies that refused to accept the requests for records during
the first visit to their main office were sent follow-up written
requests, mailed on January 24, 2006.
Records Access Guidelines. 32 agencies were selected
for the audit because Government Code Section 6253.4
identifies each of these agencies by name as being required
to "establish written guidelines for accessibility of
records. A copy of these guidelines shall be posted in a
conspicuous place at the offices of these bodies, and a
copy of the guidelines shall be available upon request free
of charge to any person requesting the body's records."
(The Department of Youth Authority subsequently merged with
the Department of Corrections.) Audit Expectation: Posted
for public in agency's main office.
Form 700 Statements of Economic Interests. Part 1 of
the audit requested immediate access to viewing a Form 700
and to receive a copy of the agency's "guidelines for
accessibility of records." Audit Expectation: Provided
within 1 hour of request.
Employment Contracts. Part 2 of the audit requested
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copies of an employment contract or similar document(s)
reflecting the total compensation of the state agency's
top-ranking employee. Audit Expectation: Provided within
10 days.
Litigation Settlements. The courts have concluded that
litigation settlement agreements entered into by California
public agencies are public records open to inspection.
(Register Division of Freedom Newspapers, Inc. v. County of
Orange, 158 Cal.App.3d 893, 901, 4th Dist., 1984) Part 2
of the audit also requested a recent litigation settlement
agreement. Audit Expectation: Provided within 10 days.
Notable Findings.
"The most striking discovery was that 90% of the state agencies
failed to post, in their main office, a copy of the Guidelines
for Accessibility of Public Records."
"When asked to present the FPPC Form 700 for the agency's
top-ranking employee, 74% of the agencies could not produce the
Form within one hour."
"Employees at 71% of the state agencies wanted to know some
information from the Auditor (his name, who he was working for,
or why he wanted to view the record) before allowing him to see
the Form 700."
"When requested to provide a copy of the document showing the
total annual compensation of that state agency's top-ranking
employee, only 29% could supply that record within 10 days."
"Similarly, only 29% could supply a copy of that agency's most
recent Litigation Settlement Agreement, where more than $100,000
was paid to the plaintiff(s), within 10 days."
Executive Order S-03-06 . In response to the published reports
of the CalAware audit of CPRA compliance by state agencies,
Governor Schwarzenegger issued Executive Order S-03-06 on March
29, 2006, which requires state agencies, boards and commissions
to review and post CPRA request guidelines in a conspicuous
public place at all office locations and to identify and
designate staff to handle the requests and ensure appropriate
training in CPRA compliance for designated staff members.
Related Legislation . The CPRA enforcement provisions of AB 2927
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were contained in three prior bills that were approved by the
Legislature, but vetoed by Governor Gray Davis:
SB 48 (Sher) of 1999 established a procedure in the California
Public Records Act for appealing a public agency denial of a
written request to disclose public records. Passed 78-0 on the
Assembly Floor, and passed 40-0 on the Senate Floor. Veto
message:
I am signing Assembly Bill No. 427 which clarifies that no state
agency, commissioner, or officer, shall employ legal counsel
other than the Attorney General, or one of his assistants or
deputies, in any matter in which they are interested, or a party
to, as a result of office or official duties.
Therefore, under SB 48, should the Attorney General issue an
opinion adverse to a state agency or department which ultimately
leads to litigation, the Attorney General may not be able to
represent an agency that it has already opined against.
SB 48 creates an Attorney General appeals process that will lead
to inherent conflicts of interest between the Attorney General
and his major clients, the state agencies and departments.
Consequently, this bill could result in uneven legal
representation and increased use of costly outside counsel by
the agency or department.
Finally, the costs to comply with this bill would be borne by
the General Fund and would likely be significant. Therefore, I
am vetoing this bill.
SB 2027 (Sher) of 2000 created a procedure for appealing to the
Attorney General a denial by a public agency of a written
request for disclosure of public records (in addition to a court
action, available under current law). Allows a court to award
up to $100 per day (maximum of $10,000) when the public agency's
action resulted in the denial of plaintiff's right to access the
requested records. Allows a public agency against whom the
Attorney General has rendered an adverse opinion to engage
outside counsel in defense of a lawsuit resulting from the
denial of access to public records, and expressly state that the
Attorney General is not precluded from representing the public
agency on other matters. The Attorney General would be immune
from suit or discovery in any suit for any action taken as a
result of review under this bill. All Attorney General Opinions
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issued under this review procedure would be published annually
in a special volume of opinions, made available on the Internet
and sold for reasonable cost of publication and distribution.
Passed 75-1 on the Assembly Floor with one Republican voting
against, and passed 32-2 on the Senate Floor with two
Republicans voting against. Veto message:
While proponents of this bill contend that a weakness of the
Public Records Act is the
lack of recourse when state agencies refuseto comply, this bill
does not address that issue. Instead the bill sets up a
bureaucratic reporting mechanism, involving the preparation,
posting and mailing of AG opinions on the merits of a state
agency's decision to withhold requested information. The costs
to comply with this bill would be borne by the General Fund and
would likely be significant. Therefore, I am vetoing this bill.
I do, however, believe that state agencies should be fully
responsive to legitimate public record requests. Accordingly, I
am directing my Secretary of State and Consumer Affairs, Aileen
Adams to conduct a review of all state agencies' performance in
responding to PRA requests and to make recommendations on
appropriate procedures to ensure a timely response.
AB 822 (Shelley) of 2002 establishes new procedures for
individuals seeking to view or copy public documents or
appealing a public agency's denial of such a request. Passed
38-0 on the Senate Floor, and passed 80-0 on the Assembly Floor.
Veto message:
Because the Attorney General is the attorney for most State
agencies and advises agencies on responding to such requests, AB
822 would create an inherent conflict of interest. I vetoed
similar proposals in 1999 and 2000. AB 822 suffers the same
problems.
Additionally, the proponents of AB 822 fail to establish the
need for such procedures. In response to similar legislation in
2000, SB 2027, I directed the State and Consumer Services Agency
to review the performance of all State departments in responding
to Public Record Act requests. The Agency's review found that
State departments are responding timely and there is very little
litigation challenging their responses.
The State and Consumer Services Agency's review thus found no
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need for the disruptive and costly procedures proposed by AB
822.
However, the Agency made several recommendations to improve the
State's response to Public Record Act requests, such as
establishing uniform guidelines for reviewing requests and
providing updated responding timely and there is very little
litigation challenging their responses.
The State and Consumer Services Agency's review thus found no
need for the disruptive and costly procedures proposed by AB
822. However, the Agency made several recommendations to
improve the State's response to Public Record Act requests, such
as establishing uniform guidelines for reviewing requests and
providing updated
REGISTERED SUPPORT / OPPOSITION :
Support
Californians Aware (CalAware)
The California Newspaper Publishers Association (CNPA)
Solano County Taxpayers Association
Four letters from the general public
Opposition
None on file.
Analysis Prepared by : Eric Johnson / G. O. / (916) 319-2531