BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 1245|
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THIRD READING
Bill No: AB 1245
Author: Monning (D)
Amended: 6/30/09 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE : 5-0, 6/23/09
AYES: Corbett, Harman, Florez, Leno, Walters
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
ASSEMBLY FLOOR : 77-0, 5/21/09 (Consent) - See last page
for vote
SUBJECT : Public records: protection and ecovery
SOURCE : Secretary of State
DIGEST : This bill establishes 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.
ANALYSIS :
Existing law provides that every officer having custody of
any public record filed or deposited in any public office,
or placed in his/her hands for any purpose, is punishable
CONTINUED
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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. (Government Code Section
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. (Government Code Section 6201.)
This bill provides 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 SOS 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 provides that when a record is returned upon the
request of the person, organization, or institution that
returned the record, the secretary or a local agency that
receives the record shall issue to that person,
organization, or institution a copy or digital image of the
record, which shall be certified as a true copy of the
record that was returned to the state or local agency, and
dated on the same day the record was returned.
This bill provides 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 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
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records, to order the records to be delivered to the state
archivist or other government official designated by the
court.
The court may order the record available for public access
under a request made pursuant to the California Public
Records Act.
This bill provides a similar procedure for recovery of a
public record by a local agency, and provides 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 exempts 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 authorizes the SOS, on behalf of the
archivist or the local agency to pursue recovery of the
records using the process described in the bill, and
authorizes an award of reasonable attorney's fees and court
costs to the prevailing party.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
SUPPORT : (Verified 7/10/09)
Secretary of State, Debra Bowen (source)
California Association of Clerks and Election Officials
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California Association of Museums
California Peace Officers' Association
California Police Chiefs Association
California State Association of Counties
Los Angeles County District Attorney's Office
ARGUMENTS IN SUPPORT : According to the author's office,
in the absence of a law that allows governmental agencies
to recover public records that 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. This
bill 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.
The California State Association of Counties supports this
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
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preserves important historic public records for the benefit
of generations to come."
ASSEMBLY FLOOR :
AYES: Adams, Ammiano, Anderson, Arambula, Beall, Bill
Berryhill, Tom Berryhill, Blakeslee, Block, Blumenfield,
Brownley, Buchanan, Caballero, Charles Calderon, Carter,
Chesbro, Conway, Cook, Coto, Davis, De La Torre, De Leon,
DeVore, Duvall, Emmerson, Eng, Evans, Feuer, Fletcher,
Fong, Fuller, Furutani, Gaines, Galgiani, Garrick,
Gilmore, Hagman, Hall, Harkey, Hayashi, Hernandez, Hill,
Huber, Huffman, Jeffries, Jones, Knight, Krekorian, Lieu,
Logue, Bonnie Lowenthal, Ma, Mendoza, Miller, Monning,
Nestande, Niello, Nielsen, John A. Perez, V. Manuel
Perez, Portantino, Price, Ruskin, Salas, Silva, Skinner,
Smyth, Solorio, Audra Strickland, Swanson, Torlakson,
Torres, Torrico, Tran, Villines, Yamada, Bass
NO VOTE RECORDED: Fuentes, Nava, Saldana
RJG:do 7/10/09 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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