BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
AB 1245
Assemblymember Monning
As Amended April 13, 2009
Hearing Date: June 23, 2009
Government Code
GMO:jd
SUBJECT
Public Records: Protection and Recovery
DESCRIPTION
The bill would establish a process by which the Secretary
of State or a local agency may seek the return of public
records belonging to the state or a local agency from a
person, organization, or institution not authorized by law
to possess those records, or require that person to respond
in writing and declare why the records do not belong to the
state or local agency. The process would authorize the
Secretary of State or the local agency, if the public
records were not returned or the person or entity with
possession did not timely respond or demonstrate why the
records do not belong to the state or the local agency, to
ask the Attorney General or the district attorney or, where
applicable, the city attorney, to petition the superior
court for an order requiring the return of the records. If
successful, the Attorney General (or district attorney or
city attorney) may recover attorney's fees and court costs.
The bill would exempt a person, organization, or
institution who has custody of public records for which
they have no authority to possess from the recovery
provisions of this bill, provided: (1) the person,
organization, or institution follows specified professional
practices; and (2) those records are made subject to
inspection in the same manner as public records are subject
to inspection and to disclosure under the Public Records
Act.
(more)
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BACKGROUND
Under existing law it is a crime for a person to willfully
steal, remove, destroy, mutilate, deface, alter, or falsify
a public record. (Gov. Code Sec. 6200 et seq.) There is no
specific statute that addresses the downstream sale of
these documents, or that provides a process by which
government may seek a return of these records.
According to the Secretary of State, in 2004 the Council of
State Archivists, Society of American Archivists, 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. That statement concisely summarizes the value of
records and need for enhanced protection.
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.
The Secretary of State and the state's Keeper of the
Archives (state archivist) acknowledge that many public
records are in the custody of private entities, such as
museums and educational institutions, and that as long as
the records are preserved and maintained in a manner
consistent with professional standards, the state prefers
that those records remain in their custody. However, under
the Public Records Act those public records are subject to
inspection and disclosure upon request, and at times it is
not clear whether or not there is a problem with the public
accessing those records.
This bill would address both the issue of seeking the
return of public records in the possession of persons or
entities not authorized to possess those public records and
the issue of access to those public records that are in the
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hands of private persons or entities.
With only slight changes, AB 1245 is virtually identical to
AB 2595 (Laird, 2008). That bill was vetoed by the
Governor, along with many other bills that were vetoed due
to the budget crisis.
CHANGES TO EXISTING LAW
Existing law provides that every officer having custody of
any public record 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 two,
three, or four years if the officer willfully steals,
removes, destroys, mutilates, defaces, alters, or falsifies
the record, or causes another person to do so. (Gov. Code
Sec. 6200.)
Existing law provides that every person who is not an
officer who is guilty of these acts is punishable by
imprisonment in the state prison or in county jail for a
period not exceeding one year, or by a fine not exceeding
$1,000, or both. (Gov. Code Sec. 6201.)
This bill would provide that, whenever the Secretary of
State (SOS), in consultation with the state archivist
(Keeper of the Archives), has reasonable grounds to believe
that public records belonging to a state or a local agency,
are in the possession of a person or entity not authorized
by law to possess those records, the Secretary of State may
issue a written notice by certified mail, demanding that
person or entity, within 20 calendar days, to either return
the records or respond in writing and declare why the
records do not belong to the state or a local agency.
This bill would provide that if the person or entity fails
to deliver the described records, fails to respond to the
notice and demand 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 Attorney
General (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 would require the court, after a hearing, and
upon a finding that the specified records are in the
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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.
This bill would provide that, if the AG recovers a record
under these provisions, the court may award attorney's fees
and court costs.
This bill would provide a similar procedure for recovery of
a public record by a local agency, and provide that a local
agency may request the district attorney or city attorney
to petition the superior court for an order requiring the
return of the record, if the record is not returned after a
written demand was sent by certified mail.
This bill would exempt a person, organization, or
institution with custody of public records which they have
no lawful authority to possess, from the recovery
provisions of this bill (1) provided the person,
organization, or institution follows professional
practices recommended by the Society of American Archivists
as used by the state archivist, and (2) provided those
records are made subject to inspection in the same manner
as public records are subject to inspection, and are
subject to disclosure under the Public Records Act. If the
person or entity in possession of these public records
refuses public inspection, this bill would authorize the
state archivist or local agency or designated
representative to inform the person or entity in possession
of the public record of the requirement for inspection and
to facilitate the inspection of records. If the person or
entity continues to deny inspection of the record, this
bill would authorize the Secretary, on behalf of the
archivist or the local agency to pursue recovery of the
records using the process described in the bill, and would
authorize an award of reasonable attorney's fees and court
costs to the prevailing party.
COMMENT
1. Need for the bill
According to the author, in the absence of a law that
allows governmental agencies to recover public records that
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have been removed from public custody and that addresses
the downstream sale of these documents, there is a
prevalent misconception in society that once a public
record is outside of public custody, it is no longer a
public record. For example, the state archivist's staff on
several occasions discovered historic volumes or pages from
San Quentin or Folsom Prison on mug books or registers in
manuscript auction catalogs or online auctions.
Thus, in response to the growing sales of public records,
whether they are in lawful or unlawful custody of private
individuals or entities, the Council of State Archivists,
the Society of American Archivists, and the National
Association of Government Archives and Records
Administrators issued a joint statement on the sale of
public records and established a page on its Web site
regarding the sale of public records. The archivist groups
have also launched an effort to ensure that states have in
place recovery statutes for governmental records. AB 1245
is patterned after the Maine recovery statute. Several
other states have adopted similar recovery statutes.
( http://www.statearchivists.org/issues/publicrecordssales/in
dex.htm )
This bill contains provisions from those recovery statutes,
and provides an exemption for specified public records.
2. The public record recovery statute
a. SOS demand for return, action by the AG; local
agency may also recover public record
AB 1245 would authorize the SOS, in consultation with the
state archivist and where reasonable grounds exist to
believe that records belonging to the state or local
agency are in the possession of a person or entity not
authorized to possess those documents, to issue a written
notice demanding the return of the records or an
explanation of why the records do not belong to the state
or a local agency. The written demand must identify the
public record with reasonable specificity and must
contain a warning that the SOS may take legal action to
recover the records if the person or entity does not
return the records or respond in time. It would be sent
by certified mail, return receipt requested, in order to
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ensure delivery.
A response, or the return of the public record, would be
due 20 calendar days from receipt of the notice. If no
response is made, or if the records are not returned, the
SOS may ask the AG to petition the superior court in the
county where the records are located for an order
requiring the return of those records.
The Public Records Act covers records not just of the
state but also of local agencies. The burden of knowing
what those records are, where they are located, who has
custody, and the significance of those records are with
the agency that generated them. Thus, local agencies,
because they would have a better handle on whether their
records are in the lawful or unlawful possession of a
person or entity, would also be authorized under AB 1245
to issue a written demand for recovery of a public record
and pursue an action in court if necessary. The local
agency may request the district attorney or city attorney
to pursue the court action.
b. Court determination of lawful/unlawful possession,
orders to protect records; attorney's fees
The court, after hearing and finding that the specified
records are in the possession of a person or entity not
authorized by law to possess the records, would be
required to order the records delivered to the state
archivist or other government official designated by the
court. Prior to and while the petition is pending before
the court, this bill would authorize the court to issue
any order necessary to protect the records from
destruction, alteration, transfer, conveyance, or
alienation by the person then in possession of the
records, including an order to surrender the records into
the custody of the state archivist.
The bill would provide that, if the Attorney General
recovers a record under these provisions, the court may
award attorney's fees and court costs.
This provision should be revised to authorize the award
of reasonable attorney's fees and court costs to the
prevailing party in this action, not just to the Attorney
General, if successful. Especially since the person,
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institution, or organization would be given the
opportunity to return the public record (assuming the
Secretary of State's notice would describe why the record
in dispute is a public record that belongs to the state
or local agency), having to go to court to obtain an
order should entitle the SOS, as the prevailing party, to
reasonable attorney's fees and costs. On the other hand,
if the respondent successfully shows that the record is
not a public record, he or she should be able to recoup
his or her own reasonable attorney's fees and costs.
Suggested amendment: To be consistent with other
statutes that allow for attorney's fees and costs, any
award should be limited to "reasonable attorney's fees"
and court costs.
The bill also contains a provision, generally applicable
to the entire chapter on recovery of public records,
authorizing the award of reasonable attorney's fees and
costs to the prevailing party.
Suggested amendment: These two attorney's fees provisions
should be reconciled, to avoid confusion. It is
suggested that proposed Section 6204.1(d) be deleted from
the bill and Section 6204.4 be retained.
3. Persons, organizations, and institutions conditionally
exempt from this recovery statute
The bill would provide an exemption for a person,
organization, or institution that is not authorized to
possess the public records in their custody. This is in
recognition of past practices or erroneous or unauthorized
transfers of what could be historical or other public
records, for example, to non-state museums, archives, or
educational institutions. The sponsor states that in some
cases, the records are better off being left where they are
located, because the records would be better preserved and
protected from degradation. The only issue would then be
what to do if there is a request for public inspection and
copying of the records, for example, for research purposes
as authorized under the Public Records Act.
The exemption provided by this bill is thus qualified by
two conditions:
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(1) the organization or institution with custody of the
public records follows professional practices recommended
by the Society of American Archivists, as used by the
state archives, for the management, care, and
preservation of historical records;
This provision would ensure that the standard of care used
to determine whether the organization or institution would
be adequate custodians of the records is the same standard
used by the California State Archives, thus the records
would be taken care of as if they were in state custody.
(2) those records in the custody of the unauthorized
person or entity are subject to inspection to the same
extent they would be subject to inspection and not exempt
from disclosure under the Public Records Act, and the
organization or institution with custody of the public
records ensures that access is provided as if the records
are maintained by the state or local agency.
If the organization or institution with custody of the
public records refuses public inspection as required by the
Public Records Act, this bill would require the state
archives to contact the organization or institution to
inform it of its obligations under this section and, where
appropriate, facilitate inspection of records. If the
organization or institution continues to deny public
inspection, the SOS may pursue recovery of the public
record according to the procedure provided in AB 1245.
For those public records that have been transferred and are
now in the custody of a person, organization, or
institution with questionable right to possession of those
records, it might be more convenient to have the Secretary
of State or the state archivist and the organization or
institution sign an agreement that the person,
organization, or institution would be able to keep the
records only under those two conditions (preservation
standards and public access). If the person, organization,
or institution with custody of the public record refuses to
allow inspection or copying after a request is made
pursuant to the Public Records Act, the person making the
request should be entitled to the same remedies as are
available under the Public Records Act. This would do away
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with the time-consuming efforts spent filing a complaint or
contacting the state archivist, and the state archivist
going through the process of informing the organization or
entity of its obligations and then facilitating the
inspection of the records.
SHOULD THIS TYPE OF AGREEMENT BE CONSIDERED FOR THESE
EXEMPT PERSONS OR ENTITIES?
Under this bill, therefore, a person, institution, or
organization that is found to have public records in their
custody without the authority to lawfully possess them must
show that the records are being preserved to the standards
established by the bill and must allow access to the
records. If either of these conditions is violated, the
person, organization, or institution is not exempt, and the
Secretary of State may demand the return of the public
records and, if attorney's fees are incurred in the
process, the person, institution, or organization may be
liable for those attorney's fees and court costs.
4. No statute of limitations applies to SOS action to
recover public records unlawfully possessed
According to the Secretary of State's Office, AB 1245
intentionally omits any statute of limitations that would
apply to the action to recover public records. Even if,
for example, the associate warden's record card of Robert
Stroud, the Birdman of Alcatraz, which was created in 1942
upon his transfer to Alcatraz from Leavenworth, were
bought by a bona fide memorabilia purchaser who did not
know at the time that this was a public record or that it
would later be made unlawful to possess, the Secretary of
State, upon being informed, should be able to either
recover the public record in the manner set forth in this
bill, or exempt the record on the condition that the record
is to be preserved according to established standards and
the record is made accessible for inspection and copying
when requested by the public. (In point of fact, the
memorabilia collector's possession would not be unlawful
under the existing Government Code provisions prohibiting
the theft, removal, or destruction of a public record, but
is deemed to be unauthorized under the terms of this bill.)
The problem raised by this example is that the Birdman of
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Alcatraz memorabilia may have been purchased in 1965,
before the Public Records Act was passed in 1968 and the
term "public records" was then defined to include "any
writing containing information relating to the conduct of
the public's business prepared, owned, used, or retained by
any state or local agency regardless of physical form or
characteristics."
SHOULD A MEMORABILIA PURCHASER BE DEEMED TO BE IN UNLAWFUL
POSSESSION OF A PUBLIC RECORD, WHEN THE MEMORABILIA WAS NOT
A PUBLIC RECORD WHEN IT CAME INTO HIS OR HER POSSESSION?
The SOS contends that public records are not records that
can be owned by an individual, institution, or
organization, but may be in their lawful custody via an
agreement, or transfer for safekeeping. And in all cases,
public records are subject to public inspection and
copying, unless the record is exempt from disclosure.
Thus, even though an innocent person purchased a public
record from someone several times removed from the public
officer who pilfered the record from the state or local
agency that created, received, or maintained the record,
that innocent person has unlawful possession of the public
record and must respond to a written demand for return of
the record or show cause why the record is his or her own.
And, in the end, the court may order the return of the
record.
For post-1968 documents the sponsor's argument may be
persuasive. However, in the event the bill is enacted with
no statute of limitations, and the associated warden's
record card of the Birdman of Alcatraz, purchased in good
faith by a collector in 1965 is sought for return by the
Secretary of State, should the bill allow the innocent
purchaser to keep the original if he or she provides a
certified copy of the original for the state, or in the
alternative, should the purchaser be entitled to the
singular certified copy of the original prior to returning
the original to the state? In the absence of an equitable
solution, should the innocent purchaser be entitled to
compensation?
5. Support arguments
The California State Association of Counties supports this
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bill, stating that "[t]his measure is intended to address
situations in which historical public records that are in
the possession of an unauthorized person or entity are
being inappropriately sold or traded in the marketplace for
profit. Counties believe that this measure safeguards and
preserves important historic public records for the benefit
of generations to come."
Support: California State Association of Counties (CSAC);
Los Angeles County District Attorney's Office; California
Police Chiefs Association; California Peace Officers'
Association; California Association of Museums (CAM);
California Association of Clerks and Election Officials
Opposition: None Known
HISTORY
Source: Secretary of State
Related Pending Legislation: None Known
Prior Legislation: AB 2595 (Laird, 2008). See Background.
Prior Vote:
Assembly Governmental Organization Committee (Ayes 16, Noes
0) (Consent)
Assembly Judiciary Committee (Ayes 10, Noes 0) (Consent)
Assembly Appropriations Committee (Ayes 17, Noes 0)
(Consent)
Assembly Floor (Ayes 77, Noes 0) (Consent)
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