BILL ANALYSIS
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|SENATE RULES COMMITTEE | SB 330|
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THIRD READING
Bill No: SB 330
Author: Yee (D), et al
Amended: 12/15/09
Vote: 21
SENATE JUDICIARY COMMITTEE : 5-0, 1/12/10
AYES: Corbett, Harman, Hancock, Leno, Walters
SUBJECT : Public records: state agency: auxiliary
organizations
SOURCE : California Faculty Association
California Newspaper Publishers Association
American Federation of State, County and
Municipal
Employees, AFL-CIO
DIGEST : This bill redefines local agency and state
agency to include auxiliary organizations of a California
State University, the California Community Colleges, or the
University of California, for purposes of the California
Public Records Act (CPRA). This bill expressly 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 application of the
California Public Records Act to auxiliary bodies such as
the CSU Fresno Association that was the subject of the
case. This bill also exempts from disclosure under the
CPRA the name of an auxiliary organization donor or
volunteer who requests anonymity, unless the donor or
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volunteer receives, in a quid pro quo arrangement, anything
with a value of $500 or more for the service or donation.
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. (Gov. Code 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 the person whose request for a
public record under the CPRA is denied may file an action
in superior court for an order requiring disclosure. (Gov.
Code 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.
(Gov. Code Sec. 6255.)
Existing law, Article 1, Section 3 of the California
Constitution declares the people's right to transparency in
government. ("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
California State University, the University of California,
and the California Community Colleges are considered to be
state agencies for this purpose. (Gov. Code Sec. 6252.)
Existing law authorizes the University of California, the
California State University, and the California Community
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Colleges to form auxiliary organizations for the various
purposes related to their educational mission. (Ed. Code
Secs. 72670.5, 89900, 92034 et seq.)
Existing law defines "local agency" for purposes of the
CPRA, to include a county; city, whether general law or
chartered; city and county; school district; municipal
corporation; district; political subdivision; or any board
or commission or agency thereof; other local public agency;
or entities that are legislative bodies of a local agency
as defined. (Gov. Code Sec. 6252(a).)
This bill includes, in this definition of "local agency" an
auxiliary organization of a California Community College,
as defined.
Existing law defines "state agency" for purposes of the
CPRA, to include every state office, officer, department,
division, bureau, board, and commission or other state body
or agency, but does not include those agencies named in
Article IV (the Legislative branch) or Article VI (Judicial
branch) of the California Constitution. Under existing
law, the CPRA applies to the California State University
and to the University of California. (Gov. Code Sec.
6252(f).)
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 or the
University of California (as described in a newly-created
provision).
This bill defines an "auxiliary organization" of the
University of California (UC) to include various entities,
including an entity that operates a commercial service for
the benefit of a UC campus or other UC property, and an
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entity whose "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."
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 and to construe and clarify the meaning and
effect of existing law.
This bill exempts from disclosure under the CPRA the name
of a person who donates or volunteers services to an
auxiliary organization, if that person requests anonymity,
unless the donor or volunteer receives in a quid pro quo
arrangement anything in return that is valued at $500 or
more.
Background
This bill is substantially similar to SB 218 (Yee, 2009),
that was vetoed by the Governor. The Governor's veto
message reads, in part:
While I am a firm believer in providing openness and
transparency when it involves public entities and
public funding, this bill inappropriately defines
private auxiliary organizations as a state or local
public agency for purposes of the California Public
Records Act (CPRA). Subjecting the altruistic
activities of private donors and volunteers to the
CPRA will have a chilling effect on their support and
service, if they believe their personal privacy could
be compromised. Hindering private giving of time and
resources becomes a detriment to our higher education
institutions.
Enacting this bill would result in a loss of private
donations and volunteer activities supporting
California public institutions of higher education, at
a time when the University of California, California
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State University, and Community College campuses are
facing significant reductions in state funding during
this difficult fiscal situation.
Responding to the Governor's message, this bill includes a
revised exemption for the names of donors and volunteers.
The remainder of the bill consists of the same provisions.
According to the sources, this bill is a response to
several situations that have arisen on campuses of the
California State University. The first situation involves
the factual background for the decision in CSU Fresno
Assn ., supra. In that case, the Fresno Bee's CPRA request
for information was made in October, 1999. In the second
scenario, in 2008, a non-profit corporation, University
Enterprises, Inc (UEI), which operates the student
bookstore at CSU Sacramento, relied on the CSU Fresno Assn.
decision to deny a CPRA request made by a student
attempting to obtain textbook pricing information from UEI.
The student, a member of the student association's
bookstore advisory committee, sought the information
contained in the contracts between UEI and the book vendors
to determine whether UEI was complying with the College
Textbook Transparency Act (AB 1548, Solorio, Chapter 574,
Statutes of 2007). AB 1548 requires colleges and
universities to disclose specified information about
textbook sales on their campuses, thus acting as a check on
the ever-rising prices college students pay for their
textbooks.
Last month, the Attorney General initiated an audit of the
operations of nonprofit organizations affiliated with the
California State University, in response to reports of
improper use of funds raised by the auxiliary
organizations. Some of the items mentioned in the news
report of the Attorney General's audit included loans from
the organization to CSU executives, and identified expenses
of executives paid out of funds raised by these
organizations.
In between the 2001 CSU Fresno decision and the 2008 CPRA
request, the people of California passed Proposition 59 by
an overwhelming 83 percent vote in 2004. Proposition 59
guarantees the constitutional right of the public to access
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public records, favoring transparency, open disclosure, and
the narrow reading of exemptions from public disclosure
provided by statute. Proposition 59 is enshrined in the
California Constitution as Article 1, Section 3.
Prior Legislation
SB 218 (Yee), 2009, which passed the Senate on 9/8/09
(33-1) and was vetoed.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 1/12/09)
California Faculty Association (co-source)
California Newspaper Publishers Association (co-source)
American Federation of State, County and Municipal
Employees, AFL-CIO
(co-source)
Californians Aware
California Taxpayers' Association
California Nurses Association/National Nurses Organizing
Committee; Service Employees International Union
OPPOSITION : (Verified 1/12/09)
California State University
ARGUMENTS IN SUPPORT : According to the author's office,
Ensuring adequate transparency and oversight of all
funding sources is critically important, especially
during tough budget times. According to a 2007 report
by the non-partisan State Auditor, who was tasked with
determining executive compensation levels of CSU
executives, "... because of the large number of
auxiliaries and potential outside sources of income,
we cannot be certain that we identified all additional
compensation [given CSU executives]." This occurred
despite assurances by the CSU that its auxiliaries are
held to "strict accountability and transparency
standards." According to the California State
University's own budget documents, 20 percent of their
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funding comes from auxiliary organizations. This
translates to $1.34 billion dollars that, according to
the State Auditor, lacks adequate accountability.
SB 330 updates the California Public Records Act to
include auxiliary organizations at UC, CSU, and CCC
campuses. Placing state college and university
auxiliaries under the authority of the Public Records
Act will safeguard the use of taxpayer funds and
provide much needed accountability and oversight to
state policymakers.
The California Faculty Association, co-source, states that
this bill would "provide the same transparency and public
accountability - 'a fundamental and necessary right of
every person in the state' - for college auxiliaries that
the CPRA now requires of the CSU, UC and community
colleges." The California Taxpayers' Association, in
support, further notes that, "[b]y some estimates,
[auxiliary] organizations provide as much as 20 percent of
the funding for these postsecondary institutions that also
receive general fund moneys. If any of this funding is
going toward administrative excess, while student fees are
rising, the public should have a right to be informed about
it."
ARGUMENTS IN OPPOSITION : The California State University
(CSU), in opposition, states that this bill is duplicative
and unnecessary because "[a]ll auxiliaries are accountable
and transparent to the public under current state and
federal laws [and that] SB 330 will not make more
information available that isn't already available and or
protected by law." CSU also contends that this bill would
lead to increased costs and reduced revenues to the
University. Specifically, CSU maintains that this bill
"would result in drops in non-state revenues for programs
and services for two reasons: (1) revenues redirected to
respond to PRA requests and related legal costs; and, (2)
reduction in our fundraising from individuals and corporate
in response to the lack of clarity with regard to the
privacy rights of such individuals under the bill and
current statute."
RJG:nl 1/13/10 Senate Floor Analyses
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SUPPORT/OPPOSITION: SEE ABOVE
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