BILL ANALYSIS
AB 1245
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 1245 (Monning)
As Amended June 30, 2009
Majority vote
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|ASSEMBLY: |77-0 |(May 21, 2009) |SENATE: |34-3 |(August 27, |
| | | | | |2009) |
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Original Committee Reference: G.O.
SUMMARY : Establishes a procedure by which the Secretary of
State (SOS), on behalf of the California State Archives (CSA),
could recover governmental records, belonging to the state or a
local agency that are found in possession of non-governmental
entities or persons. Specifically, this bill :
1)Provides whenever the SOS, in consultation with the CSA, has
reasonable grounds to believe that a record belonging to the
state or a local agency is in the possession of a person,
organization, or institution not authorized by law to possess
those records, the SOS may issue a written notice demanding
that person, organization, or institution to do either of the
following within 20 calendar days of receiving the notice: (1)
Return the record to the appropriate state or local agency.
(2) Respond in writing and declare why the record does not
belong to the state or a local agency.
2)Provides the notice and demand issued shall identify the
record claimed to belong to the state or local agency with
reasonable specificity, and shall state that the SOS is
authorized to take legal action to recover the record if the
person, organization, or institution fails to respond in
writing within the required time or does not adequately
demonstrate that the record does not belong to the state or a
local agency.
3)Provides if a person, organization, or institution that
receives a written notice and demand from the SOS and does not
act on the request, as defined, 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 the record.
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4)Authorizes a local agency to request the SOS to act on its
behalf under these circumstances and set forth the criteria
pursuant to which the local agency could undertake these
procedures on its own behalf.
5)States if a person, organization, or institution that receives
a written notice and demand from a local agency, and no action
is taken, the local agency may request the county district
attorney or, where applicable, the city attorney, to petition
the superior court in the county in which the record is
located for an order requiring the return of the record.
6)Provides after a hearing, and upon a finding that a specified
record is in the possession of a person, organization, or
institution not authorized by law to possess the record, the
court shall order the record to be delivered to the local
agency or a government official designated by the court, as
specified.
7)Require the secretary or a local agency to issue a copy or
digital image of the record, when a record is returned and the
person, organization, or institution returning that record
makes that request.
8)Exempts an organization or institution that complies with
professional practices recommended by the Society of American
Archivists for the management, care, and preservation of
historical records and that makes records in its possession
available for inspection in accordance with disclosure
requirements applicable to public agencies.
9)Provides the court may award reasonable attorney's fees and
costs to the prevailing party.
The Senate amendments :
1)Require the secretary or a local agency to issue a copy or
digital image of the record, when a record is returned and the
person, organization, or institution returning that record
makes that request.
2)Delete requirement that if the AG recovers a record, as
described, the court may award attorney's fees and court
costs.
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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 years if
the officer willfully steals, removes, destroys, mutilates,
faces, alters or falsifies the record, or causes another
person to do so.
2)Provides that every person not an officer 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.
AS PASSED BY THE ASSEMBLY , this bill established a process by
which the SOS, on behalf of the State Archivist, can recover
governmental records belonging to the state or a local agency
that are found in the possession of non-governmental agencies or
persons.
FISCAL EFFECT : According to the Senate Appropriations
Committee, pursuant to Senate Rule 28.8, negligible state costs.
COMMENTS :
Public records provide evidence of 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 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 all Californians rather than individuals.
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
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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, found in Government Code, establishes that it is a
crime for a person to willfully steal, remove, destroy,
mutilate, deface, alter, or falsify a public record. This state
lacks a law that would allow governmental 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 within society that
suggests that once a public record is outside of public custody,
it is no longer a public record.
Purpose of the bill . According to the author, 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 Archives 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.
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This bill is similar to AB 2595 (Laird) of 2008 which was vetoed
by the Governor due to the 2008-2009 State Budget delay. In his
veto message of AB 2595, the Governor stated, "The historic
delay in passing the 2008-2009 State Budget has forced me to
prioritize the bills sent to my desk at the end of the year's
legislative session. Given the delay, I am only signing bills
that are the highest priority for California. This bill does
not meet that standard and I cannot sign it at this time."
Analysis Prepared by : Eric Johnson / G. O. / (916) 319-2531
FN: 0001984