BILL ANALYSIS
SB 218
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Date of Hearing: July 7, 2009
ASSEMBLY COMMITTEE ON HIGHER EDUCATION
Anthony Portantino, Chair
SB 218 (Yee) - As Amended: June 30, 2009
SENATE VOTE : 35-1
SUBJECT : Public records: state agency: auxiliary
organizations.
SUMMARY : Includes in the California Public Records Act (CPRA)
auxiliary organizations of the University of California (UC),
the California State University (CSU), or the California
Community Colleges (CCC), as well as entities that operate
campus facilities such as a bookstores, sports complexes,
arenas, theaters, student centers, parking programs, or similar
activities at CCC. Specifically, this bill :
1)Expands the definition of "state agency" for purposes of CPRA
to include UC and CSU auxiliary organizations.
2)Expands the definition of "local agency" for purposes of CPRA
to include CCC auxiliary organizations 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 CCC
campus.
3)Defines UC auxiliaries as follows:
a) An entity in which a UC official participates as a
director as part of his or her official duties.
b) An entity that operates a commercial service for the
benefit of a UC campus on a UC campus or other UC property.
c) An entity whose governing instrument provides in
substance both of the following:
i) That its purpose is to promote or assist any UC
campus 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.
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ii) That any of its directors, governors, or trustees
are either appointed or nominated by, or subject to, the
approval of an official of any UC campus, or serve, ex
officio, from the membership of the student body or the
faculty or the administrative staff of a campus.
d) Any entity whose governing instrument provides in
substance both of the following:
i) That its purpose is to promote or assist the UC
Board of Regents (Regents), or to receive gifts,
property, and funds to be used for the benefit of the UC
Regents, or any person or organization having an official
relationship therewith.
ii) That any of its directors, governors, or trustees
are either appointed or nominated by, or subject to, the
approval of the UC Regents or a UC official, or serve, ex
officio, from the membership of the UC Regents or the UC
administrative staff.
e) An entity that is designated by the UC Regents as a UC
auxiliary organization.
4)Provides that nothing in the bill shall be construed to
require disclosure of the names of individuals who donate to
an entity, as specified, or to a nonprofit entity, as
specified, 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.
5)Expresses the Legislature's intent to reject the court's
interpretation of state law regarding the application of CPRA
to auxiliary bodies such as those described in California
State University, Fresno Assn., Inc. v. Superior Court (2001)
90 Cal.App.4th 810 (CSU Fresno v. Superior Court).
EXISTING LAW :
1)Declares the people's right to transparency in government
(Article 1, Section 3 of the California Constitution):
[(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
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public officials and agencies shall be open to public
scrutiny..."].
2)Establishes CPRA, which requires all public records to be
accessible to the public upon request, unless the record
requested is exempt from public disclosure, as specified. UC,
CSU, and CCC are considered to be state agencies for this
purpose. CPRA governs the disclosure of information collected
and maintained by public agencies. Generally, all public
records are accessible to the public upon request, unless the
record requested is exempt from public disclosure. 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. A person whose request for a public record under
CPRA is denied may file an action in superior court for an
order requiring disclosure. 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.
3)Authorizes UC, CSU, and CCC to form auxiliary organizations
for various purposes related to their educational missions and
defines CSU and CCC auxiliaries.
FISCAL EFFECT : None
COMMENTS : Double-referral : This bill is double-referred to
the Assembly Governmental Organization Committee.
Background : In the late 1990s, CSU Fresno built a multipurpose
arena on its campus funded primarily by private donations and
operated by the CSU Fresno Association, a nonprofit corporation
that operates all of the campus's commercial enterprises,
including the bookstore, food services, housing, and the student
union. In exchange for generous gifts to the campus's
foundation (a separate nonprofit corporation whose purpose is to
manage all aspects of the financial activities for grants, trust
accounts, investments, endowments, scholarships, gifts, loans,
and donations and to provide assistance to faculty and staff
with their grants and contracts), some donors obtained luxury
suites in the arena for a specified number of years pursuant to
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licensing agreements between the donors and the CSU Fresno
Association. The Fresno Bee made a CPRA request for the
licensing agreements and other documents in an attempt to learn
the identity of the donors and investigate whether the donors
received favorable treatment from any of the entities involved.
The CSU Fresno Association and the campus foundation denied the
request for information, claiming that they were not state
agencies as defined in CPRA and therefore not subject to its
disclosure requirements. The Fresno Bee filed a superior court
action to compel disclosure, and the trial court ordered
disclosure. The appellate court reversed the trial court's
decision (CSU Fresno v. Superior Court), concluding that CPRA
was not written broadly enough to include either entity in the
definition. The court based its conclusions on CPRA as it
existed at that time and its comparisons of the CSU Fresno
Association to those groups in other states and the federal
government labeled "agencies" under their own versions of CPRA
or the Freedom of Information Act. The court further stated:
We are fully cognizant of the fact that our conclusion
seems to be in direct conflict with the express purposes of
the CPRA-"to safeguard the accountability of government to
the public?". The Legislature's decision to narrowly
define the applicability of the CPRA, balanced against its
sweeping goal to safeguard the public, leaves us scratching
our judicial heads and asking, "What was the Legislature
thinking?" In many ways the Association can be
characterized as a "state-controlled" corporation that
should be subject to the CPRA. However, courts "do not sit
as super-legislatures to determine the wisdom, desirability
or propriety of statutes enacted by the Legislature." The
rewriting of a statute is a legislative, rather than a
judicial function, a practice in which we will not engage.
Purpose of this bill : This bill would expressly include
auxiliary organizations in CPRA by (1) defining UC's auxiliary
organizations in the Education Code to correspond to the
statutory definitions of CSU's and CCC's auxiliary
organizations; (2) adding auxiliary organizations to the
definition of a "state agency" and "local agency" for purposes
of CPRA; and stating the intent of the Legislature to reject
the court's interpretation of state law (CSU Fresno v. Superior
Court) regarding the application of CPRA to auxiliary bodies.
Auxiliaries : Auxiliary organizations are formed to further the
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educational missions of their institution. Examples include
alumni groups, student associations, faculty organizations, and
groups that bear the name of the particular college or
university or campus. These groups operate as nonprofit public
benefit corporations chartered under the California Nonprofit
Public Benefit Corporation Law and must meet certain standards
of operation such as: (1) auditing and financial reporting
procedures with oversight by a certified public accountant; (2)
expenditures that are in accordance with policies delineated by
the governing body; (3) meetings of boards and committees that
are open to the public; and (4) conformity of operational
procedures with regulations established by the governing body.
Arguments in support : The California Faculty Association states
that auxiliaries raise significant amounts of money that are
used to support these public institutions, yet the public cannot
access the auxiliaries' records under CPRA.
Arguments in opposition : By expanding CPRA to private entities
that do not accept public funds, CSU expresses concern about its
ability to receive donations, attract volunteers, participate in
public-private partnerships, and contract with vendors who fear
access to their personal and proprietary information.
Proprietary information protections : Opponents and banking
interests have expressed concern that the existing CPRA
exemptions do not clearly protect proprietary information from
disclosure under this bill and have requested a general
exemption to this effect. Proponents believe that Evidence Code
Sec. 1060 and Civil Code Sec. 3426.1 exempt trade secrets and
proprietary information from disclosure under CPRA through
Government Code Sec. 6254(k).
Author's amendments : As currently drafted, this bill includes a
definition of CCC auxiliaries that differs from the definition
of these auxiliaries in the Education Code. Further, the author
does not intend to cover commercial entities located on a CCC
campus. Thus, should the Committee approve this bill, the
author has agreed to accept the following amendment in the
Assembly Governmental Organization Committee to conform the
definitions in this bill to those in the Education Code and to
exempt commercial entities that operate a commercial service for
the benefit of a CCC campus:
Sec. 2 (a) "Local agency" includes a county; city, whether
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general law or chartered; city and county; school district;
municipal corporation; district; political subdivision; or
any board, commission or agency thereof; an entity
organized pursuant to Section 72670 except subsection (c)
of that section 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 ; other local public agency; or entities
that are legislative bodies of a local agency pursuant to
subdivisions (c) and (d) of Section 54952.
REGISTERED SUPPORT / OPPOSITION :
Support
American Federation of State, County and Municipal Employees
California Faculty Association
California Newspaper Publishers Association
California Nurses Association
California Taxpayers' Association
California Teachers Association
Opposition
California State University
Analysis Prepared by : Sandra Fried / HIGHER ED. / (916)
319-3960