BILL ANALYSIS
AB 2927
Page 1
GOVERNOR'S VETO
AB 2927 (Leno)
As Amended August 24, 2006
2/3 vote
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|ASSEMBLY: |80-0 |(May 31, 2006) |SENATE: |40-0 |(August 29, |
| | | | | |2006) |
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|ASSEMBLY: |78-0 |(August 30, | | | |
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SUMMARY : Requires 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
California Public Records Act (CPRA) about how to contact the
agency, how to request records under the act, and a form for
submitting online requests for records. In addition, 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 the agency, with
specified provisions to become operative on January 1, 2008.
Specifically, this bill :
1)Requires as of January 1, 2008, 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, and a form for submitting
online requests for records, as described.
2)Provides that the homepage of that site, shall prominently
displayed without scrolling, the words "Public Records
Center," which shall be followed by, or shall link to, on
another page, both of the following:
a) Under the words "Whom to Contact," the title, mailing
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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 CPRA, or informal requests for simple factual
information, should be directed; and,
b) Under the words "How to Request Records," the written
guidelines authorized or required as described, and an HTML
form for submitting online requests under PRA, consisting
labeled fields, as specified.
1)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 the
agency, with specified provisions to become operative on
January 1, 2008.
2)Authorizes 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, as specified.
3)Requires the Attorney General to maintain copies of the
opinions issued pursuant to these provisions, to publish the
opinions annually in a special volume, and to make them
available on the Internet, as described.
4)Permits, in situations where a plaintiff has successfully sued
for enforcement of the PRA, a court award to a plaintiff of up
to $100 for each day that the plaintiff was not permitted to
access the public record, up to a total of $10,000, if the
court finds the agency took the following actions in bad faith
or with the knowledge that the requested record was not exempt
from disclosure under the PRA, as specified.
5)Requires the Department of Justice (DOJ) to convene an
advisory task force with a specified membership, to consider
specified issues with respect to a statutory standard
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governing the posting of certain activities under the act, and
to report its findings and recommendations to the Governor and
the Legislature no later than September 30, 2007, as
specified.
The Senate amendments :
1)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, as described.
2)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, as specified.
3)Require the Department of Justice to convene an advisory task
force with a specified membership, to consider specified
issues with respect to a statutory standard governing the
posting of certain activities under the act, and to report its
findings and recommendations to the Governor and the
Legislature no later than September 30, 2007, as described.
4)Delete requirement relating to 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.
5)Provide that a state agency, against which an action is
brought, as specified, after a receipt of an adverse opinion,
is authorized to retain counsel other than the Attorney
General.
6)Make technical changes.
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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 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
Bagley-Keene defines a state body to mean every state board,
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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, "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.
f)Provides that a state agency against which an action is
brought, after an adverse opinion, is authorized to retain
counsel, other than the Attorney General, who shall be
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compensated at the same rate that the Attorney General would
change for legal services for the defense of that action.
AS PASSED BY THE ASSEMBLY , this bill required 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 PRA 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.
FISCAL EFFECT : According to the Senate Appropriations Committee
analysis, Attorney General staff estimates that, including
state agencies, boards, commissions, and more than 530 county
and city entities, AB 2927 gives that office public records
oversight over an estimated 7,000 governmental entities in
California. If each of these entities were to generate one
denial of request for a public record per year, the resulting
workload would be 135 cases per week. While it is unknown how
many public records requests will be denied and, of these
denials, how many persons will seek written opinions from the AG
as a result of AB 2927's provisions, AG staff projects a need
for 5 deputy attorney general staff and accompanying secretarial
support at an annual cost of approximately $1.2 million to
ensure the office will be able to comply with the bill's
requirements and timelines.
Costs for DOJ to convene the required advisory task force and
report to the Governor and Legislature should be minor and
absorbable.
DGS estimates costs for state agencies to comply with these
requirements by the date required should be absorbable within
most state agencies' existing resources.
COMMENTS :
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
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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 PRA
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 PRA
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: In January 2006, the bill's sponsor,
Californians Aware (CalAware), conducted a performance audit
regarding the compliance of state agencies, boards, and
commissions with the requirements of the PRA. The author states
that this audit revealed an average score of "F" for the state
agencies that were audited. Of the 31 agencies audited,
CalAware states that 90 percent failed to post written
guidelines for making public records requests, two-thirds did
not provide a copy of their written guidelines at their main
offices when a visitor requested a copy, more than half failed
to provide a copy of the requested record within the ten-day
statutory deadline, and some of those that timely complied
charged an improper fee. CalAware also notes that employees at
71 percent of the audited agencies asked the requestor, in
violation of the PRA, to state his or her name, who he or she
was working for, or why he or she was requesting the
information.
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Purpose of the bill : The author states, "Although the PRA,
(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. Governor
Schwarzenegger responded to the CalAware audit by issuing
Executive Order S-03-06 on March 29, 2006, which required state
agencies, boards, and commissions to review and post PRA request
guidelines in a conspicuous public place at all office
locations, to identify and designate staff to handle PRA
requests, and to ensure appropriate training of designated staff
on the rudiments of the PRA.
"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)]
"This bill seeks to ensure that the public knows how to go about
making a public records request pursuant to PRA by requiring any
state agencies to post this information. In addition, this bill
includes penalties for failure to comply with PRA?"
In this bill, the author seeks to reintroduce the enforcement
and review provisions previously contained in SB 48 (Sher,
1999), SB 2027 (Sher, 2000), and AB 822 (Shelley, 2002), arguing
that the recent CalAware performance audit demonstrates that
agency compliance with the PRA under existing legal restrictions
and requirements is inadequate. The author also seeks to "bring
the PRA into the 21st century" by requiring the posting of
specified PRA request information on agency Web sites.
Related legislation : The PRA enforcement provisions of this
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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, 1999), vetoed by Governor Davis, would have
permitted a person to seek written review from the AG when an
agency declined to comply with a PRA request. The bill would
also have permitted a court award of up to $100 per day (up to
$10,000) when a public entity declined to comply with a PRA
request either in bad faith or with knowledge that the record
was not exempt from PRA disclosure.
SB 2027 (Sher, 2000), vetoed by Governor Davis, mirrored SB 48
but added provisions to address concerns from the SB 48 veto
message that review of PRA request denials by the AG could cause
a conflict of interest between the AG and state agencies that
might be represented by the AG.
AB 822 (Shelley, 2002), vetoed by Governor Davis, mirrored SB
2027 but also specified that 50 percent of a court award against
a public entity under the terms of the bill would go to the
General Fund if a plaintiff first sought written review from the
AG of the decision not to comply with the PRA request.
GOVERNOR'S VETO MESSAGE :
An open and accessible government is critical to
instill confidence in the governed. Indeed the people
recently voted overwhelmingly to amend California's
Constitution to make access to public records a
fundamental right. That is why I issued Executive
Order S-03-06 which directs all state departments to
post PRA 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 PRA compliance f or designated
staff members. As a result of the order, all
executive branch agencies have reviewed their public
records procedures.
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They have been revamped to improve performance and
compliance and extensive training has been provided to
state agency staff. These efforts address the problem
this bill is attempting to fix.
In addition the provision allowing the Attorney
General to review denials of public records requests
is unduly burdensome. The Attorney General is the
attorney for most State agencies and advises agencies
on responding to such requests and thus this bill
creates an inherent conflict of interest.
I will continue to require the highest standards of
compliance with the Public Records Act throughout the
executive branch.
Analysis Prepared by: Eric Johnson / G. O. / (916) 319-2531
FN: 0017980