BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
SB 359
Senator Romero
As Amended May 5, 2009
Hearing Date: May 12, 2009
Government Code
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SUBJECT
California Public Records Act: Exemptions from Disclosure
DESCRIPTION
This bill would update the statute within the California Public
Records Act (CPRA) that contains an alphabetical list of records
that are exempt from disclosure.
The bill also would require that a standing committee of the
Legislature introduce a bill at the beginning of each two-year
session, that would update this alphabetical list of records
exempt from disclosure under the CPRA.
BACKGROUND
In 2004, the people of California passed Proposition 59 by an
overwhelming 83 percent vote. Proposition 59 guarantees the
constitutional right of the public to access 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.
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
required to be open to public inspection 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 nature of the information, and unless it is shown that the
(more)
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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. In addition to the general categories listed in
Section 6254, there is an alphabetical list of records that are
exempt, according to statutory exemptions provided under federal
and state law. (Sec. 6275 et seq.)
The list of exemptions under the CPRA changes each year due to
new laws regarding privacy and personal information, needs of
law enforcement and homeland security, court decisions, and
other governmental and business records confidentiality
requirements. The list has grown and has been added to, deleted
from, and exemptions have been modified over time. As a result,
the public has sometimes been confused (as well as the agencies
and regulators who use the CPRA daily) as to which exemptions
are current.
This bill is intended to update the CPRA alphabetical list of
exempted records and ensure it is updated periodically in the
future.
CHANGES TO EXISTING LAW
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 open to public inspection, unless the record
requested is exempt from public disclosure. (Sec. 6254.) A
public record may be exempt from disclosure if it is identified
by statute or pursuant to any other state or federal law that
makes a particular record confidential. (Sec. 6254(k).) 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 creates an alphabetical index of the many code
sections that an agency can rely on to justify non-disclosure of
particular records (Sec. 6275 et seq.) This provision declares
the Legislature's intent to, after January 1, 1999, list and
describe each addition or amendment to a statute that exempts
any information contained in a public record from disclosure.
However, the provision also declares that listing of a statute
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in this alphabetical index does not in itself create an
exemption.
Existing law , Article 1, Section 3 of the California
Constitution, guarantees the constitutional right of the public
to access public records, favoring transparency, open
disclosure, and the narrow reading of exemptions from public
disclosure provided by statute. As a result, each statute that
exempts records from disclosure contains findings consistent
with Proposition 59. These exemptions are not necessarily
contained within the CPRA, but may be listed in the alphabetical
index.
This bill would update the list of exemptions to the publicly
accessible public records list under the CPRA by adding to the
list or amending existing items on the list.
Existing law does not identify when the alphabetical index of
the records exempt from disclosure must be updated.
This bill would require that, in the first year of each two-year
session of the Legislature, a standing committee of the
Legislature introduce a bill to update the list of exemptions to
the CPRA publicly accessible public records, in order to assist
members of the public and state and local agencies in
identifying those exemptions. The introduced bill would
incorporate changes to the list of exemptions that were enacted
during the previous two-year session.
COMMENT
1. Stated need for the bill
The author states that since Section 6275 was enacted in 1998,
there have been many exemptions added to the list of exemptions
from the CPRA, but the list has not been kept completely up to
date to reflect all new legislation that makes certain records
confidential.
"Going forward, the index [in Sec. 6275] could be kept updated
on a [periodic] basis by tracking chaptered bills that include
Proposition 59 findings. Committee staff could [periodically]
request that Legislative Counsel prepare a bill to update the
index. One suggestion is to make this request in the fall so
that it is based on chaptered bills from the just-completed
session," the author writes.
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While the author and sponsors originally proposed an annual
bill, the latest amendments to the bill reflect the author's
statement above, and a more efficient way of updating the CPRA
exempted documents index under Section 6275.
2. Biannual bill to update the alphabetical list; list not
exhaustive nor meant to be 100% accurate
This bill would follow up on the string of bills enacted in past
years that added or amended records exempted from the CPRA
disclosure requirements, but did not amend the alphabetical
index of exempted records. This bill contains a directive to a
standing committee of the Legislature to introduce a bill at the
beginning of every two-year session to adjust the list according
to newly-enacted state and federal laws that affect the
exemptions. While the bill does not specify which committee
would introduce such a bill, it could be the Judiciary Committee
of either house of the Legislature, or another standing
committee such as Governmental Organization that has
jurisdiction over the CPRA or relevant portions of the Act.
The objective of the directive is to ensure that the index is as
accurate as possible at any given time. The author states that
Legislative Counsel conducted an exhaustive review of the index
and legislation to identify all records that must be on the
list. This was necessary because a record could become exempt
from disclosure pursuant to Section 6254(k) ("records, the
disclosure of which is exempted or prohibited pursuant to
federal or state law, including but not limited to, provisions
of the Evidence Code relating to privilege").
It should be noted that the bill creates no new exemptions, and
the placement (or non-placement) of a record on the alphabetical
list is not a guarantee of whether it is or is not exempt. The
list is intended to simply provide a tool to the public and to
state and local agencies in identifying (as quickly as possible)
those records that are exempt from a public records request and
to accommodate the need to have, in one place, a more or less
exhaustive list of exemptions to the CPRA.
3. Supporting arguments for the bill
The California Newspaper Publishers Association (CNPA), sponsor
of SB 359, supports this comprehensive update of the
alphabetical and descriptive index of code sections that can
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provide a basis for nondisclosure of public records under the
CPRA. The CNPA sponsored the bill that created the alphabetical
index in 1998 (SB 143, Kopp, Ch. 620, Stats. 1998). At that
time, CNPA states, "Sen. Kopp and CNPA thought the index would
become a valuable tool for requesters and custodians of public
records alike because of the interesting structure of the CPRA.
Many provisions of the law that may provide a basis for
nondisclosure of a record are contained within the "four
corners" of the law, with most found in Sec. 6254. Subdivision
(k) of that section, however, additionally allows nondisclosure
of records 'exempted or prohibited pursuant to federal or state
law... .' These laws are found throughout the codes, from
Agriculture to Welfare and Institutions." The CNPA concludes by
saying that "SB 359 promotes government transparency and
efficiency of government agencies in responding to requests for
public records."
The California State Association of Counties (CSAC) agrees,
noting that "[t]here has been no organized, comprehensive effort
to update the PRA exemption index since it was established in
statute more than a decade ago. [The] measure seeks to bring
the index up-to-date, consistent with legislative changes that
have made certain records confidential in the intervening 11
years."
4. Conflict
This bill has been identified by Legislative Counsel as amending
provisions that are also being amended by AB 1540 (Assembly
Committee on Health). This conflict should be resolved prior to
enrollment of the bill, should it pass both houses, to avoid
chaptering out those provisions.
Support : Office of the Attorney General; California State
Association of Counties
Opposition : None Known
HISTORY
Source : Author and California Newspaper Publishers Association
(sponsor)
Related Pending Legislation : None Known
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Prior Legislation :
SB 143 (Kopp, Ch. 620, Stats. 1998) created the alphabetical
list of exempted records.
The following bills amended one or more provisions of the
alphabetical list of exemptions:
AB 973 (Chan, Ch. 241, Stats. 2001, Sec. 1)
AB 171 (Cohn, Ch. 424, Stats. 2003, Sec. 1)
AB 1298 (Hancock, Ch. 750, Stats. 2004, Secs. 1 & 2)
SB 111 (Knight, Ch.193, Stats. 2004, Secs. 30 & 32)
AB 3081 (Committee on Judiciary, Ch. 182, Stats. 2004, Sec. 38)
SB 1743 (Bowen, Ch. 689, Stats. 2006, Sec. 10)
AB 1750 (Committee on Health, Ch. 577, Stats. 2007, Sec. 3)
AB 2749 (Gaines, Ch. 501, Stats. 2008, Sec. 24)
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