BILL ANALYSIS
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|SENATE RULES COMMITTEE | SB 218|
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UNFINISHED BUSINESS
Bill No: SB 218
Author: Yee (D), et al
Amended: 9/2/09
Vote: 21
SENATE JUDICIARY COMMITTEE : 4-1, 5/12/09
AYES: Corbett, Harman, Florez, Leno
NOES: Walters
SENATE FLOOR : 35-1, 6/3/09
AYES: Aanestad, Alquist, Ashburn, Benoit, Calderon,
Cogdill, Corbett, Cox, Denham, DeSaulnier, Dutton,
Florez, Hancock, Harman, Hollingsworth, Huff, Kehoe,
Leno, Lowenthal, Maldonado, Negrete McLeod, Oropeza,
Padilla, Pavley, Romero, Runner, Simitian, Steinberg,
Strickland, Walters, Wiggins, Wolk, Wright, Wyland, Yee
NOES: Correa
NO VOTE RECORDED: Cedillo, Ducheny, Liu
ASSEMBLY FLOOR : 76-0, 9/3/09 - See last page for vote
SUBJECT : Public records: state agency: auxiliary
organizations
SOURCE : California Newspaper Publishers Association
California Faculty Association
American Federation of State, County, and
Municipal
Employees
DIGEST : This bill includes in the California Public
CONTINUED
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Records Act (CPRA) auxiliary organizations of the
University of California (UC), the California State
University (CSU), and the California Community Colleges
(CCC), except as specified. Specifically
Assembly Amendments (1) change reference from "nonprofit
entities" to "auxiliary organizations," (2) clarifies
definition of "state agency," (3) add legislative intent
language, and (4) add coauthors.
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,
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bureau, board, and commission or other state body or
agency, except for the Legislature and the Judiciary. The
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:
1. Expands the definition of "state agency" for purposes
of CPRA to include UC, CSU, and CCC Board of
Governor's auxiliary organizations and expands the
definition of "local agency" for purposes of CPRA to
include CCC district auxiliary organizations to
include the following:
A. Student auxiliaries, as specified.
B. Any entity whose governing instrument provides
in substance both of the following:
(1) Its purpose is to promote or assist
the higher education institution or to receive
gifts, property, and funds to be used for the
benefit of the higher education institution or
any person or organization having an official
relationship therewith; and,
(2) Any of its directors, governors, or
trustees are either appointed or nominated by, or
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subject to, approval of the governing board of
the higher education institution, an official of
the institution, or selected ex officio, from the
membership of the student body, faculty,
government board, or administrative staff of the
institution.
(3) Any entity that, exclusive of the
foregoing subdivision of this section, is
designated as an auxiliary organization by the
higher education institution's governing body.
2. Defines UC auxiliaries, comparable to existing
statutory definitions for CSU and CCC 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:
(1) 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; and,
(2) 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, exofficio,
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:
(1) That its purpose is to promote or
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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; and,
(2) 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.
3. Stipulates that nothing in this 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.
4. Stipulates that auxiliaries are not required to
disclose trade secrets or other records specifically
exempted or prohibited from disclosure by state and
federal law, as specified.
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).
6. States legislative intent that auxiliaries defined in
this bill are a "state agency" solely for the purposes
of CPRA.
Background
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.
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 gifts to
the campus's foundation (a separate nonprofit corporation),
some donors obtained luxury suites in the arena for a
specified number of years pursuant to 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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 6/1/09)
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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
California Taxpayers Association
California Teachers Association
Californians Aware
EDITORIAL - Long Beach State Univ. - Daily 49er
EDITORIAL - Los Angeles Times
EDITORIAL - Modesto Bee
EDITORIAL - Riverside Press Enterprise
EDITORIAL - Santa Rosa Press Democrat
EDITORIAL - Chico State University - The Orion
EDITORIAL - Sacramento Bee
EDITORIAL - Santa Cruz Sentinel
EDITORIAL - UCLA Daily Bruin
Service Employees International Union State Council
Sonoma County Supervisor Shirley Zane
State Employees' Trade Council
Student Senate for California Community Colleges
University of California Students Association
OPPOSITION : (Verified 6/1/09)
California State University
University of California
California Community Colleges
Foundation for California Community Colleges
The University Corporation - CSU Northridge
San Francisco Chamber of Commerce
Valley Industry and Commerce Association
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
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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."
ASSEMBLY FLOOR :
AYES: Adams, Ammiano, Anderson, Beall, Bill Berryhill, Tom
Berryhill, Blakeslee, Block, Blumenfield, Brownley,
Buchanan, Caballero, Charles Calderon, Carter, Chesbro,
Conway, Cook, Coto, De La Torre, De Leon, Duvall,
Emmerson, Eng, Evans, Feuer, Fletcher, Fong, Fuentes,
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, Nava,
Nestande, Niello, Nielsen, John A. Perez, V. Manuel
Perez, Portantino, Ruskin, Salas, Saldana, Silva,
Skinner, Smyth, Solorio, Audra Strickland, Swanson,
Torlakson, Torres, Torrico, Tran, Villines, Yamada, Bass
NO VOTE RECORDED: Arambula, Davis, DeVore
RJG:nl 9/4/09 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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