BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2013-2014 Regular Session
SB 1337 (DeSaulnier)
As Amended April 21, 2014
Hearing Date: April 29, 2014
Fiscal: Yes
Urgency: No
TMW
SUBJECT
Public Records and Reports
DESCRIPTION
Existing law, the California Public Records Act (CPRA), requires
public agencies to make public records open to inspection at all
times. This bill would provide that once a state agency has
determined that a CPRA request is for a disclosable public
record in the possession of the state agency, the state agency
must provide the record as soon as possible and no later than 30
days of determining that it is disclosable.
Existing law requires specified reports to be submitted to the
Legislature, state agencies and departments. This bill would
require those reports to 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 or her knowledge.
BACKGROUND
The California Public Records Act (CPRA), enacted in 1968,
requires public disclosure of public agency documents. The CPRA
gives every person the right to inspect and obtain copies of all
state and local government documents not exempt from disclosure.
(Gov. Code Sec. 6253.) The CPRA requires each public agency,
upon a request for a copy of records and within 10 days from
receipt of the request, to determine whether the request, in
whole or in part, seeks copies of disclosable public records in
the possession of the agency and requires the agency to promptly
notify the person making the request of the determination and
(more)
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the reasons therefor.
Although existing law requires the public agency, within 10 days
from receipt of the records request, to make a determination on
whether records are disclosable, it does not specifically
provide a deadline by which the public agency must provide the
records to the requestor. This bill would require state
agencies to produce disclosable public records as soon as
possible but no later than 30 days from the date of
determination that the records are disclosable.
Existing law also requires specified reports to be submitted to
the Legislature, state agencies and departments. This bill
would require those reports to 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 or her knowledge.
The report requirement in this bill is substantially similar to
AB 1135 (Strickland, 2007), which was vetoed by Governor
Schwarzenegger because the report veracity requirement would
create an inconsistent system in which some of the information
submitted by a public agency is subject to declarations of truth
while other information used by the Legislature is not. He also
argued that existing law already provides criminal penalties for
submitting a false report, and the Legislature already has the
ability to question the accuracy of all information presented to
it. AB 1135 was not referred to this Committee. AB 2404
(Klehs, 2006) and AB 1625 (Klehs, 2005) also contained a similar
report requirement and were both vetoed.
This bill was heard in the Senate Committee on Governmental
Organization on April 22, 2014, and passed out on a vote of
10-0.
CHANGES TO EXISTING LAW
1.Existing law , 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....") (Cal. Const.,
art. I, Sec. 3.)
Existing law , the California Public Records Act (CPRA),
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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 defines state agency, for purposes of the CPRA,
to include every state office, department, division, bureau,
board, and commission or other state body or agency, except
for the Legislature and the Judiciary. (Gov. Code Sec. 6252.)
Existing law provides that except with respect to public
records exempt from disclosure by express provisions of law,
each state or local agency, upon a request for a copy of
records that reasonably describes an identifiable record or
records, 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. (Gov. Code
Sec. 6253(b).)
Existing law requires each agency, upon a request for a copy
of records and within 10 days from receipt of the request, to
determine whether the request, in whole or in part, seeks
copies of disclosable public records in the possession of the
agency and requires the agency to promptly notify the person
making the request of the determination and the reasons
therefor. (Gov. Code Sec. 6253(c).)
Existing law provides that in unusual circumstances, the
10-day time limit may be extended by written notice from the
head of the agency or his or her designee to the person making
the request, setting forth the reasons for the extension and
the date on which a determination is expected to be
dispatched. No notice shall specify a date that would result
in an extension of more than 14 days. When the agency
dispatches the determination, and if the agency determines
that the request seeks disclosable public records, the agency
shall state the estimated date and time when the records will
be made available. Existing law defines "unusual
circumstances" to mean the following, but only to the extent
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reasonably necessary to the proper processing of the
particular request:
the need to search for and collect the requested records
from field facilities or other establishments that are
separate from the office processing the request;
the need to search for, collect, and appropriately
examine a voluminous amount of separate and distinct
records that are demanded in a single request;
the need for consultation, which shall be conducted with
all practicable speed, with another agency having
substantial interest in the determination of the request or
among two or more components of the agency having
substantial subject matter interest therein; and
the need to compile data, to write programming language
or a computer program, or to construct a computer report to
extract data. (Gov. Code Sec. 6253(c).)
Existing law prohibits construing the CPRA to permit an agency
to delay or obstruct the inspection or copying of public
records. (Gov. Code Sec. 6253(d).)
This bill would provide that once a state agency has made a
determination that a request is for a disclosable public
record in the possession of the state agency, the state agency
shall promptly provide the requested public record, and no
disclosable public record shall be provided later than 30 days
from the date of the determination.
This bill would provide that in unusual circumstances, the
30-day time limit may be extended by written notice by the
head of the agency or his or her designee to the person making
the request, setting forth the reasons for the extension and
the date on which the disclosable public record is expected to
be provided; however, no notice shall specify a date that
would result in an extension for more than 14 days.
2. Existing law generally sets out the requirements for the
submission of written reports by public agencies to the
Legislature, the Governor, the Controller, and state
legislative and other executive entities. (Gov. Code Sec.
7550 et seq.)
This bill would require a written report submitted to the
Legislature, a Member of the Legislature, or any state
legislative or executive body by any state agency or
department to include a signed statement by the head of that
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agency or department (including the head of every state agency
or department, including, but not limited to, elected
officials of state government, and any state official whose
duties are prescribed by the California Constitution)
declaring that the factual contents of the report are true,
accurate, and complete to the best of his or her knowledge.
This bill , with respect to the Franchise Tax Board, would
require that signed statement to be made by the executive
officer of that board, and with respect to the State Board of
Equalization, the statement shall be made by the executive
director of that board.
This bill would define "written report" to mean either (1) a
document required by statute to be prepared and submitted to
the Legislature, or any state legislative or executive body,
or (2) A document, summary, or statement requested by a Member
of the Legislature.
This bill would provide that the declaration in the signed
statement as to the truth, accuracy, and completeness of the
factual contents of the written report would not apply to any
forecasts, predictions, recommendations, or opinions contained
in the written report.
This bill would authorize a civil penalty up to $20,000,
exclusively assessed and recovered in a civil action brought
by the Attorney General, against any person who declares, with
respect to the written report, as true any material matter the
he or she knows to be false.
COMMENT
1. Stated need for the bill
The author writes:
Under current law, the California Public Records Act
[(CPRA)]directs public agencies to determine whether a public
records act request, in whole or in part, is disclosable and
respond to the requester within 10 days. Under unusual
circumstances, public agencies may notify the requester that
an extension is necessary to make this determination. The
extension may not exceed 14 days.
Currently, there is no set deadline for public agencies to
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deliver documents under the [CPRA]. Current law states that
once a public agency has determined that records are
disclosable under the public records act, the agency "shall
make the records promptly available to any person upon payment
of fees covering direct costs of duplication, or a statutory
fee if applicable."
SB 1337 requires a state agency to provide a public record as
soon as possible and no later than 30 days after the date that
the agency has determined that a request is for a disclosable
public record in the possession of the agency.
Under current law heads of state departments or agencies have
no liability for misrepresenting facts in reports to the
legislature or a state executive body. The construction of
the new eastern span of the Bay Bridge was 10 years late and
over $5 billion over budget. This project particularly
illustrated how problematic it can be when department and
agency heads are not held accountable. During Joint
Legislative Audit Committee hearings in the early 2000s to
review the audit on the Bay Bridge project, it was found that
Caltrans and other agency heads had withheld information from
the Legislature or misrepresented certain facts, such as cost
overruns and evidence of project mismanagement.
SB 1337 requires a written report 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 written
report are true, accurate, and complete to the best of his or
her knowledge.
2. Statutory deadline for public record production
Existing law, under the CPRA, provides a statutory deadline of
10 days from receipt of a records request for a public agency to
make a determination on whether the records requested are
disclosable. (Gov. Code Sec. 6253(c).) This bill would provide
a statutory deadline for the actual production of the
disclosable public records by requiring state agencies to
promptly produce disclosable public records and provide the
records no later than 30 days from the date of determination
that the records are disclosable.
The author notes that the CPRA requires public agencies to make
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public records promptly available upon payment of fees to cover
the costs of providing copies of the records. This bill would
further the legislative intent for public documents to be made
available promptly to the public. Since there may be times that
the public records requested are voluminous, extensive, or
housed off-site, this bill would provide a savings clause
similar to the existing provision for delayed determinations of
disclosable records. This bill would provide that the
production date may be extended up to 14 days in unusual
circumstances, and this bill utilizes the existing definition of
unusual circumstances as applied to determinations.
3. Report provision
This bill would require a written report submitted to the
Legislature, a Member of the Legislature, or any state
legislative or executive body by any state agency or department
to 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 or her
knowledge. That report provision, which is substantially
similar to the enrolled versions of AB 1135 (Strickland and
Spitzer, 2007), AB 2404 (Klehs, 2006), and AB 1625 (Klehs,
2005), was approved by the Senate Committee on Governmental
Organization on April 22, 2014.
AB 1135, AB 2404, and AB 1625 were approved by the Senate
Committee on Government Organization or its predecessor but not
referred to this Committee since those bills did not contain the
provisions regarding the California Public Records Act as in
this bill. Those bills were vetoed, and in his veto of AB 1135,
Governor Schwarzenegger 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 [L]egislature's deliberative process
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is not.
Support : None Known
Opposition : None Known
HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation :
AB 1135 (Strickland and Spitzer, 2007) See Background; Comment
3.
AB 2404 (Klehs, 2006) See Background; Comment 3.
AB 1625 (Klehs, 2005) See Background; Comment 3.
Prior Vote : Senate Committee on Governmental Organization (Ayes
10, Noes 0)
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