BILL ANALYSIS
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|SENATE RULES COMMITTEE | SB 218|
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THIRD READING
Bill No: SB 218
Author: Yee (D), et al
Amended: 5/28/09
Vote: 21
SENATE JUDICIARY COMMITTEE : 4-1, 5/12/09
AYES: Corbett, Harman, Florez, Leno
NOES: Walters
SUBJECT : Public records: state agency: nonprofit
entity
SOURCE : California Newspaper Publishers Association
California Faculty Association
American Federation of State, County, and
Municipal
Employees
DIGEST : This bill includes, as a state agency covered by
the California Public Records Act (CPRA), an auxiliary
organization of a California State University (CSU) the
California Community Colleges, or the University of
California, and an entity that operates a campus facility
such as a bookstore, sports complex, arena, theater,
student center, parking program, or similar activity, at a
California public postsecondary education institution. It
defines what is essentially an "auxiliary body" for the
University of California for this purpose. This bill
rejects the court's decision in California State
University, Fresno Assn., Inc. v. Superior Court (2001) 90
Cal.App.4th 810 ( CSU Fresno Assn .), relating to the
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application of the Public Records Act to auxiliary bodies
such as the CSU Fresno Association that was the subject of
the case.
Senate Floor Amendments of 5/28/09 create an exemption for
anonymous donations rather than provide intent language in
the act (currently in the bill) regarding these donations
and add co-authors.
ANALYSIS : Existing law, the California Public Records
Act governs the disclosure of information collected and
maintained by public agencies. (Gov. Code Sec. 6250 et
seq.) Generally, all public records are accessible to the
public upon request, unless the record requested is exempt
from public disclosure. (Sec. 6254.) There are 30 general
categories of documents or information that are exempt from
disclosure, essentially due to the character of the
information, and unless it is shown that the public's
interest in disclosure outweighs the public's interest in
non-disclosure of the information, the exempt information
may be withheld by the public agency with custody of the
information.
Existing law provides that a person whose request for a
public record under the CPRA is denied may file an action
in superior court for an order requiring disclosure. (Sec.
6258.). The test for a determination of whether a record
may be withheld from public access is whether the public's
interest in disclosure is outweighed by the public's
interest in withholding disclosure of the record. (Sec.
6255.)
Existing law, Article 1, Section 3 of the California
Constitution declares the people's right to transparency in
government: (...(b)(1) The people have the right of access
to information concerning the conduct of the people's
business, and therefore, the meetings of public bodies and
the writings of public officials and agencies shall be open
to public scrutiny...").
Existing law defines state agency, for purposes of the
CPRA, to include every state officer, department, division,
bureau, board, and commission or other state body or
agency, except for the Legislature and the Judiciary. The
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California State University, the University of California,
and the California Community Colleges are considered to be
state agencies for this purpose. (Sec. 6252.)
Existing law authorizes the University of California, the
California State University, and the California Community
Colleges to form auxiliary organizations for the various
purposes related to their educational mission. (Ed. Code
Secs. 72670.5, 89900 et seq.)
Existing case law holds that a non-governmental
association, which was a nonprofit auxiliary corporation
affiliated with a state university, and which operated a
multi-purpose arena being built on campus was not a "state
agency" for purposes of the CPRA, and thus could not be
compelled under the CPRA to disclose requested information.
( California State University, Fresno Assn., Inc. v.
Superior Court (2001) 90 Cal.App.4th 810.)
This bill includes, in the definition of "state agency" for
purposes of the CPRA, organizations operating as "auxiliary
organizations" of the California State University, the
California Community Colleges, and the University of
California (as described in a newly-created provision).
This bill expands the existing definition of "local agency"
for purposes of this bill to include an entity organized
pursuant to Section 72670 of the Education Code or a
nonprofit entity that operates a campus facility,
including, but not limited to, a bookstore, sports complex,
arena, theater, student center, parking program, or other
similar activity at a community college.
This bill includes in the definition of "state agency" for
purposes of the CPRA, a nonprofit entity that operates a
campus facility, including, but not limited to, a
bookstore, sports complex, arena, theater, student center,
parking program, or other similar activity at a California
public postsecondary education institution.
This bill makes the CPRA applicable to the following
entities:
1. An entity in which an official of the University of
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California participates as a director as part of his or
her official duties.
2. An entity that operates a commercial service for the
benefit of a campus of the University of California on a
campus or other property of the University of
California.
3. An entity whose governing instrument provides in
substance both of the following:
A. That its purpose is to promote or assist
any campus of the University of California, or to
receive gifts, property, and funds to be used for
the benefit of that campus or any person or
organization having an official relationship
therewith.
B. That any of its directors, governors, or
trustees are either appointed or nominated by, or
subject to, the approval of an official of any
campus of the University of California, or serve,
ex officio, from the membership of the student
body or the faculty or the administrative staff
of a campus.
4. Any entity whose governing instrument provides in
substance both of the following:
A. That its purpose is to promote or assist
the Regents of the University of California, or
to receive gifts, property, and funds to be used
for the benefit of the regents of the University
of California, or any person or organization
having an official relationship therewith.
B. That any of its directors, governors, or
trustees are either appointed or nominated by, or
subject to, the approval of the Regents or an
official of the University of California, or
serve, ex officio, from the membership of the
regents or the administrative staff of the
University of California.
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5. An entity that is designated by the regents as an
auxiliary organization of the University of California.
This bill provides that nothing in the bill shall be
construed to require disclosure of the names of individuals
who donate to an entity described in Section 72670, 89300,
89901, or 92034 of the Education Code or to a nonprofit
entity described in subdivision (f) of Section 6252 of this
code, if those individuals request anonymity. This
exemption does not apply if a donor, in a quid pro quo
arrangement, receives anything that has more than a nominal
value in exchange for the donation.
This bill expresses the Legislature's intent to reject the
court's interpretation of state law regarding the
application of the CPRA to auxiliary bodies such as the CSU
Fresno Association described in California State
University, Fresno Assn., Inc. v. Superior Court (2001) 90
Cal.App.4th 810.
This bill states that the Legislature finds and declares
that the above provision imposes a limitation on the
public's right of access to writings of public officials
and agencies within the meaning of Section 3 of Article I
of the California Constitution. Pursuant to that
constitutional provision, the Legislature makes the
following finding to demonstrate the interest protected by
this limitation and the need for protecting that interest:
The Legislature finds and declares that in order to protect
the privacy of individuals who donate to specified entities
and request anonymity, it is necessary to exempt those
individuals' names from disclosure.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 6/1/09)
California Newspaper Publishers Association (co-source)
California Faculty Association (co-source)
American Federation of State, County, and Municipal
Employees (co-source)
Associated Students, UC Davis
California Nurses Association
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California State Students Association
California Taxpayers' Association
California Teachers Association
Californians Aware
EDITORIAL-Chico State University The Orion
EDITORIAL-UCLA Daily Bruin
Service Employees International Union State Council
State Employees' Trade Council
Student Senate for California Community Colleges
University of California Students Association
OPPOSITION : (Verified 6/1/09)
California State University
California Association of Nonprofits
Community College League of California
ARGUMENTS IN SUPPORT : According to the author's office,
"SB 218 strengthens the legislature's long and rich
tradition of protecting the public's fundamental right of
access to information concerning the conduct of the
people's business by ensuring that documents and other
information used by public officials is open to public
scrutiny."
ARGUMENTS IN OPPOSITION : The California State University
Chancellor's Office contends that in general, this bill
would subject auxiliary organizations "to unnecessary,
time-consuming and costly efforts to respond to PRA
requests; requests that would not result in better service
to students and the state. Instead, SB 218 will require
staff of these self-supporting entities to redirect their
attention from their core mission for the university,
students and faculty to preparing responses to PRA
requests. Under the law we can only charge for the copying
costs for PRA requests; there is no remedy for the loss of
staff time diverted from their real job or the impact on
the programs and services supported by the auxiliary."
RJG:nl 6/1/09 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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