BILL ANALYSIS
AB 1245
Page 1
Date of Hearing: April 27, 2009
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 1245 (Monning) - As Amended: April 13, 2009
PROPOSED CONSENT (As Proposed to be Amended)
SUBJECT : Recovery of PUBLIC RECORDS
KEY ISSUE : SHOULD A PROCEDURE BE ESTABLISHED TO ALLOW THE
RECOVERY OF GOVERNMENT RECORDS IN PRIVATE HANDS?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
Public records document government actions and are a means for
the public to keep their government accountable. However, in
some instances these records are finding their way into the
hands of private individuals and even into the marketplace.
This bill, sponsored by Secretary of State (SOS) Debra Bowen,
establishes a procedure to allow the Secretary of State to
recover government records in the hands of private individuals.
Specifically, the bill would authorize the SOS, where reasonable
grounds exist to believe that records belonging to the state or
a local agency are in the possession of a person or entity not
authorized to possess those records, to issue a written notice
demanding return of the records or demanding an explanation of
why the records do not belong to the state or a local agency.
If the person or entity fails to respond in a timely fashion,
the bill would authorize the SOS to request the Attorney General
(AG) to seek return of the records in court. This
non-controversial bill unanimously passed out of the Assembly
Committee on Governmental Organization. There is no known
opposition. This bill is nearly identical to last year's AB
2595 (Laird) which passed out this Committee on consent and
passed off the Assembly floor twice (once on concurrence) with a
dissenting vote. The Governor summarily vetoed that bill as one
of many that were vetoed due to the budget crisis and not
specifically due to the particular bill's contents.
SUMMARY : Establishes a procedure by which the SOS, in
consultation with California State Archivist, can recover
governmental records belonging to the state or a local agency
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that are found in possession of non-governmental entities or
persons. Specifically, this bill :
1)Provides that whenever the SOS, in consultation with the State
Archivist, has reasonable grounds to believe that public
records belonging to the state or a local agency are in the
possession of a person or entity not authorized by law to
possess those records, the SOS may issue a written notice
demanding that person or entity, within 20 calendar days,
either return the records or respond in writing and declare
why the records do not belong to the state or agency.
Requires further that the notice be sent by certified or
registered mail with return receipt requested.
2)Provides that if the person or entity fails to deliver the
described records, fails to respond to the notice within the
required time, or does not adequately demonstrate that the
records do not belong to the state or a local agency, the SOS
may ask the AG to petition the Superior Court in the county in
which the records are located for an order requiring the
return of those records.
3)Requires the court, after a hearing, and upon a finding that
the specified records are in the possession of a person or
entity not authorized by law to possess the records, to order
the records to be delivered to the State Archivist or other
government official designated by the court.
4)Provides that the prevailing party may be awarded reasonable
attorney's fees and court costs.
5)Exempts any organization or institution having physical
custody of a record if the organization follows professional
practices recommended by the Society of American Archivists
(SAA) for the management, care, and preservation of historical
records, and makes those records accessible to the public to
the same extent that the public agency would be required to
make those records assessable.
EXISTING LAW :
1) Provides that every officer having the custody of any
public record, as specified, filed or deposited in any public
office, or placed in his or her hands for any purpose, is
punishable by imprisonment in the state prison for 2, 3, or 4
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years if the officer willfully steals, removes, destroys,
mutilates, faces, alters or falsifies the record, or causes
another person to do so. (Government Code Section 6200.
Unless otherwise specified, all further references are to that
code.)
2) Provides that every person, except as specified, who is
guilty of any of these acts is punishable by imprisonment in
the state prison or in a county jail for a period not
exceeding one year, or by a fine not exceeding $1,000, or
both. (Section 6201.)
COMMENTS : Public records document government actions and are a
means for the public to keep their government accountable.
Government must hold these records for the public and, in most
instances, make governmental records available for public
inspection. However, in some instances these records are
finding their way into the hands of private individuals.
Moreover, on some occasions, these records are even finding
their way into the marketplace. While the sale or trade of
private records may well be appropriate, the same cannot be said
for government records, which are created with public resources
and therefore belong to the public. The absence of records may
deprive the public of access to important historical information
on the operation of government, as well as hinder accountability
efforts.
In 2004, the Council of State Archivists, SAA, and the National
Association of Government Archives and Records Administrators
issued a joint statement regarding the prevalence of historical
records for sale on online auction sites. The joint statement
concisely summarizes the value of records and need for enhanced
protection as follows: "Historical records of government
agencies . . . represent the essential information by which all
citizens may understand the consequences of decisions made by
public agencies. They allow the governed to hold those who
govern accountable. . . . Their disappearance into private hands
deprives the public of access to important historical details
concerning the development of property rights, taxation,
judicial actions, and community growth, as well as the enduring
impact of human beings upon their surrounding environments."
Existing law makes it a crime for a person to willfully steal,
remove, destroy, mutilate, deface, alter, or falsify a public
record. California lacks a law that would allow governmental
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agencies to recover public records that have been removed from
public custody and does not address the downstream sale of these
documents. In the absence of a law, there is a misconception
that once a public record is outside of public custody, it is no
longer a public record. For example, on several occasions,
State Archives staff has discovered historic volumes or pages
from San Quentin or Folsom prison mug books or registers in
manuscript auction catalogs or on online auctions.
This non-controversial bill would establish a procedure by which
the SOS, on behalf of the CSA, could recover governmental
records in private hands. Specifically, the bill would
authorize the SOS, where in consultation with the State
Archivist reasonable grounds exist to believe that records
belonging to the state or a local agency are in the possession
of a person or entity not authorized by law to possess those
records, to issue a written notice demanding return of the
records or an explanation why the records do not belong to the
state or a local agency. If the person or entity fails to
respond in a timely manner, the bill would authorize the SOS to
request the AG to petition the superior court in the county in
which the records are located for an order requiring the return
of those records.
This bill is largely modeled on an existing provision in Maine
law and is part of a national effort to ensure that states have
in place recovery statutes for governmental records.
Proposed Amendment : In order to ensure that notice is actually
received, the author has agreed to amend the bill to require
that the SOS send the notice and demand by certified or
registered mail, return receipt requested.
REGISTERED SUPPORT / OPPOSITION :
Support
Debra Bowen, Secretary of State (sponsor)
California Association of Museums
California Historical Society
California State Association of Archivists
Opposition
None on file
AB 1245
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Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334