BILL ANALYSIS
AB 2927
Page 1
ASSEMBLY THIRD READING
AB 2927 (Leno)
As Amended May 30, 2006
Majority vote
GOVERNMENTAL ORGANIZATION 12-0APPROPRIATIONS
(vote not available)
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|Ayes:|Jerome Horton, | | |
| |Strickland, Bermudez, | | |
| |Calderon, Chavez, Coto, | | |
| |Levine, Liu, Mountjoy, | | |
| |Negrete McLeod, Torrico, | | |
| |Yee | | |
|-----+--------------------------+-----+--------------------------|
| | | | |
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SUMMARY : Requires that any state agency with an Internet Site
include on its homepage a link to a site that provides specific
information about how an individual can make a public records
act request to that department and a form for submitting online
requests. It also requires the departments to post specific
information, such as employment and consulting contracts and any
lawsuit settlements as described. 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 (PRA), 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 as
described.
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
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conditions on access to records not authorized by PRA.
4)Specifies that the total award shall not exceed $10,000.
EXISTING LAW :
1)Provides under the California Constitution (Article 1, Section
3) 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.
2)The following state laws regulate the public's access to
government information:
a)States that 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.
b)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."
c)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.
d)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.
e)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 :
1)On similar previous legislation the Attorney General's office
estimated their costs for the increased actions that may be
brought against agencies that fail to comply with public
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records requests in a timely manner to be approximately $1
million.
2)Development of a uniform public records act site link for all
agency home-pages could cost up to $25,000 for up-front
development and each agency's personalization of the
information.
3)Unknown, probably insignificant, costs due to an increase in
the number of public records act requests received by agencies
now that those requests could be made online.
COMMENTS :
1) According to the author's office: "Although the
California Public Records Act (CPRA, Government Code
Section 6250 et seq.) 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
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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]
2) Background: The PRA, 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.
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.
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3) 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 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.
4) 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."
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"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."
5) 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.
6) Related legislation: The PRA enforcement provisions of
this were contained in three prior bills that were approved
by the Legislature, but vetoed by Governor Gray Davis:
SB 48 (Sher) of 1999, which was vetoed, would have
established a procedure in PRA 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
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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, which was vetoed, would have
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
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General Opinions 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 refuse to 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 of 2002, which was vetoed, would
have 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
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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 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
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Analysis Prepared by : Eric Johnson / G. O. / (916) 319-2531
FN: 0014989