BILL ANALYSIS �
Bill No: SB
1337
SENATE COMMITTEE ON GOVERNMENTAL ORGANIZATION
Senator Lou Correa, Chair
2013-2014 Regular Session
Staff Analysis
SB 1337 Author: DeSaulnier
As Amended: April 21, 2014
Hearing Date: April 22, 2014
Consultant: Art Terzakis
SUBJECT
Public Records and Reports
DESCRIPTION
SB 1337 adds a new provision to the Public Records Act
(PRA) that requires a state agency, in response to a public
records request, to provide the requested public record
within 30 days of the date that the agency has determined
the request is for a disclosable public record in its
possession. Additionally, this bill adds a new provision
to the Government Code that requires written reports
submitted to the Legislature or executive body, by any
state agency or department, include a signed statement by
the head of that agency or department declaring that the
factual contents of the report are true, accurate, and
complete, to the best of his/her knowledge. Specifically,
this bill:
1)Stipulates that once a state agency has determined that a
public record request is for a disclosable public record
in its possession, the state agency must promptly provide
the requested public record and no later than 30 days
after the determination.
2)Permits the head of the state agency or his/her designee,
in unusual circumstances, to extend the 30-day time limit
an additional 14 days upon written notice to the
requester.
3)Provides that every written report required to be
submitted to the Legislature, a Member of the
SB 1337 (DeSaulnier) continued
Page 2
Legislature, or any state legislative or executive body
by any state agency or department must include a signed
statement by the head of that agency or department
declaring that the factual contents of the report are
true, accurate, and complete to the best of his/her
knowledge.
4)Stipulates that the provisions of this bill apply to the
head of every state agency or department, including but
not limited to, elected state officials, and any state
official whose duties are prescribed by the California
Constitution.
5)Provides that with respect to the Franchise Tax Board,
the signed statement shall be made by the board's
executive officer, and with respect to the State Board of
Equalization the signed statement shall be made by the
executive director.
6)Provides that the declaration in the signed statement as
to the truth, accuracy, and completeness of the contents
of the written report shall not apply to any predictions,
forecasts, recommendations, or opinions contained in the
report.
7)Provides that any person who declares as true any
material matter that he/she knows to be false shall be
liable for a civil penalty not to exceed $20,000. Also,
provides that the civil penalty shall be exclusively
assessed and recovered in a civil action by the Attorney
General.
EXISTING LAW
The California Public Records Act (Government Code Section
6250 - 6276.48) requires every state or local agency to
make public records open to inspection at all times during
regular office hours and provides that every person has a
right to inspect any public record, except as specified.
Existing law requires a state or local agency, within 10
days from the receipt of the request, to determine whether
the request seeks copies of disclosable public records in
the possession of the agency. (Government Code Section
6253)
SB 1337 (DeSaulnier) continued
Page 3
Existing law establishes numerous requirements for state
and local government agencies to prepare and submit to the
Legislature, the Governor, and other governmental entities,
written reports on various subject matters of interest to
policymakers and regulatory entities.
Existing law provides that every willful omission to
perform any duty enjoined by law upon any public officer,
or person holding any public trust or employment, where no
special provision is made for the punishment of such
delinquency, is punishable as a misdemeanor. (Government
Code Section 1222)
Existing law provides that every person who, while taking
and subscribing the oath or affirmation, states as true any
material matter which he knows to be false, is guilty of
perjury, and is punishable by imprisonment in the state
prison not less than one nor more than fourteen years.
(Government Code Section 1368)
Existing law provides that every officer authorized by law
to make or give any certificate or other writing is guilty
of a misdemeanor if he makes and delivers as true any
certificate or writing containing statements which he knows
to be false. (Government Code Section 6203)
BACKGROUND
California Public Records Act (PRA): The PRA is designed
to give the public access to information in possession of
public agencies. Public records are open to inspection at
all times during the office hours of the agency and every
person has the right to inspect any public record except as
provided, [and to receive] an exact copy of an identifiable
record unless impracticable. All state and local agencies
are covered under the PRA, including any officer, bureau,
department, any board, commission or agency created by the
agency (including advisory boards) and nonprofit entities
that are legislative bodies of a local agency. The
Legislature falls under provisions of the "Legislative Open
Records Act" (Government Code Section 9070 - 9080).
"Records" include all communications related to public
business regardless of physical form or characteristics,
including any writing, picture, sound, or symbol, whether
paper, magnetic or other media. Electronic records are
included. An agency has 10 days to decide if copies will
SB 1337 (DeSaulnier) continued
Page 4
be provided and in unusual circumstances (e.g., request is
voluminous, records are kept off-site, or consultation with
other agencies is required), the agency may, upon written
notice to the requester, give itself an additional 14 days
to respond - these time frames may not be used solely to
delay access to the records.
Purpose of SB 1337: According to the author's office, this
bill is intended to address two significant issues that
have arisen in response to a series of legislative hearings
reviewing the Bay Bridge Project in which it was found that
Caltrans had provided inaccurate information to the
Legislature and withheld information or misrepresented
certain facts, such as cost overruns and evidence of
project mismanagement.
The author's office notes that current law provides that
once a public agency has determined that records are
disclosable under the PRA, the agency is required to make
the records promptly available to any person upon payment
of fees covering direct costs of duplication, or a
statutory fee if applicable. The author's office states
this bill would additionally require that the agency
provide a public record promptly and no later than 30 days
after the date that it has determined a request is for a
disclosable public record in its possession. The author's
office discovered that responses to PRA requests are
frequently delayed while paper documents are gathered and
that such delays can be problematic, particularly if the
requests are from media outlets that play a significant
role in informing the public of potential public safety
concerns or government abuses.
The author's office found that Caltrans and other agency
heads withheld information or misrepresented vital facts in
their reports to the Legislature and to the executive body
and under California law, the officials had no liability
for their actions. The Bay Bridge project was 10 years
late and $5 billion over budget. This project particularly
illustrated how problematic it can be when department and
agency heads are not held accountable.
This bill would require a signed declaration to attest to
the truth, accuracy, and completeness of the factual
contents, and not the entire contents of a written report.
In fact, this bill specifically states that the declaration
SB 1337 (DeSaulnier) continued
Page 5
shall not apply to any predictions, forecasts,
recommendations, or opinions contained in the written
report. Narrowing the scope of the declaration to only
apply to factual content is appropriate, as any
predictions, recommendations, or opinions made in written
reports are normally based on their factual content.
Additionally, the bill would impose a maximum civil penalty
of $20,000 on any person who declares as true any material
matter that he or she knows to be false.
Staff Comments: This bill contains provisions similar to
AB 1135 (Strickland) of 2007, AB 2404 (Klehs) of 2006, and
AB 1625 (Klehs) of 2005 - all of which were vetoed by the
Governor.
AB 1135 (Strickland) of 2007 would have required written
reports, as defined, submitted by any state agency or
department to the Legislature, a Member of the Legislature
or any state legislative or executive body to include a
signed statement by the head of the agency or department
declaring that the factual contents of the report are true,
accurate, and complete.
AB 1135 (Strickland) differed from AB 1625 (Klehs) and AB
2404 (Klehs) in that it only required a signed declaration
to attest to the truth, accuracy, and completeness of the
factual contents, and not the entire contents of a written
report. In fact, AB 1135 stipulated that the declaration
shall not apply to any predictions, forecasts,
recommendations, or opinions contained in the written
report. The Governor's veto message of AB 1135 stated:
"As I stated when I vetoed similar legislation last year, I
agree that the Legislature should base their decisions on
sound information that is true, accurate and complete. To
that end, I noted that state law already makes it a
misdemeanor for a state or local official to submit a
written report containing false information to the State
Controller. Further, the Legislature already has the
authority to question the accuracy of any information
presented to it. Finally, this bill would create an
inconsistent system in which some of the information
submitted by the Administration is subject to declarations
of truth while all other information used in the
legislature's deliberative process is not."
SB 1337 (DeSaulnier) continued
Page 6
AB 1625 (Klehs) of 2005 would have required written reports
that are required to be submitted by any state agency,
board, or commission to include a signed statement by the
head of the agency or chair of the board or commission,
declaring, under the penalty of perjury, that the contents
of the report are true, accurate, and complete to the best
of his/her knowledge. The Governor's veto message of AB
1625 stated:
"I absolutely believe that the Legislature, indeed all
elected officials, must base their decisions on information
that is true, accurate, and complete. This bill, requiring
legislative reports be submitted under penalty of perjury,
only applies to individuals appointed by the Governor and
confirmed by the Senate, and to the executive officer of
the Franchise Tax Board and the executive director of the
Board of Equalization.
The law already protects against falsified reports to the
Legislature. Department heads must take oaths of office,
and various Government and Penal Code provisions set forth
duties, obligations, and penalties for the accurate and
truthful execution of the operation of state government.
Further, the Legislature may already require individuals
appearing before it to testify under oath, and false
testimony is a felony.
I will consider similar legislation that applies to all
written materials used in the course of legislative
deliberations that applies to any official of the State,
elected or appointed by the Governor, the Legislature or
any other constitutional officer."
AB 2404 (Klehs) of 2006 was introduced containing similar
provisions as AB 1625, but with several differences. AB
1625 contained language that explicitly stated that the
bill did not apply to any elected official of the state, or
any official whose duties are prescribed by the California
Constitution. AB 2404 removed those exemptions. AB 2404
also added provisions that required mandatory reports to be
submitted to the State Controller by local agencies to also
include a statement signed under penalty of perjury. The
Governor's veto message of AB 2404 stated:
"Although I agree that the Legislature should base their
decisions on sound information that is true, accurate and
SB 1337 (DeSaulnier) continued
Page 7
complete, I believe that this bill is the wrong approach.
By requiring that only mandatory reports submitted to the
Legislature and [the] State Controller contain signed
statements attesting to their accuracy, this bill would
create an inconsistent system in which some of the
information considered in the legislative process is
subject to declarations of truth, while the majority of the
written material used in the legislative process is
accepted as truth without such verification.
The Legislature already has the authority to question the
accuracy of a report by requiring those responsible for
submitting the report to attest to the accuracy of the
report under oath. Given this legislative oversight and
the fact that state law already makes it a misdemeanor for
a state or local official to submit a written report
containing false information to the State Controller, this
measure is unnecessary."
Opposition: It should be noted that the Committee received
letters of opposition from the California Professional
Firefighters and the Association of California Water
Agencies however their concerns were focused on certain
provisions contained in an earlier version of the bill that
would have required a state or local agency to provide an
"electronic copy of a public record" when the public record
is made available in response to a request from a member of
the press.
PRIOR/RELATED LEGISLATION
AB 1135 (Strickland) of 2007-08 Session. Would have
required written reports, as defined, submitted by any
state agency or department to the Legislature, a Member of
the Legislature or any state legislative or executive body
to include a signed statement by the head of the agency or
department declaring that the factual contents of the
report are true, accurate, and complete. (Vetoed)
AB 2404 (Klehs) of 2005-06 Session. Would have required
written reports that are required to be submitted by any
state agency, board, or commission to include a signed
statement by the head of the agency or chair of the board
or commission, declaring under the penalty of perjury, that
the contents of the report are true, accurate, and complete
to the best of his/her knowledge. (Vetoed)
SB 1337 (DeSaulnier) continued
Page 8
AB 1625 (Klehs) of 2005-06 Session. Would have required
written reports that are required to be submitted to the
Legislature by any state agency, board, or commission to
include a signed statement by the head of the agency, chair
of the board or commission or executive director,
declaring, under the penalty of perjury, that the contents
of the report are true, accurate, and complete to the best
of his/her knowledge. (Vetoed)
SUPPORT/OPPOSITION: None on file as of April 17, 2014.
DUAL REFERRAL: Senate Judiciary Committee
FISCAL COMMITTEE: Senate Appropriations Committee
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