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Assembly Bill Policy Committee Analysis

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Assembly Bill Policy Committee Analysis AB 1479 Page 1 Date of Hearing: April 25, 2017 ASSEMBLY COMMITTEE ON JUDICIARY Mark Stone, Chair AB 1479 (Bonta) – As Amended March 21, 2017 As Proposed to be Amended SUBJECT: PUBLIC RECORDS: CUSTODIAN OF RECORDS: FINES KEY ISSUE: SHOULD THE CALIFORNIA PUBLIC RECORDS ACT BE AMENDED IN A NUMBER OF WAYS TO IMPROVE PUBLIC ACCESS TO GOVERNMENT RECORDS, INCLUDING BY ADDING A REQUIREMENT FOR AGENCIES TO DESIGNATE A CUSTODIAN OF RECORDS, AND AUTHORIZING A COURT TO IMPOSE A CIVIL PENALTY OF UP TO $5,000 WHEN AN AGENCY DOES NOT ACT IN GOOD FAITH TO COMPLY WITH THE ACT? SYNOPSIS The California Public Records Act (PRA or CPRA) was enacted in 1968, codified as Government Code sections 6250 through 6276.48, and enshrined in California’s Constitution. The PRA has been amended and strengthened by the voters and the Legislature numerous times since then. Nevertheless, many open government advocates and newspaper organizations that support this bill allege that government agencies have delayed responding to, and even actively obstructed, requests for public documents in a number of recent high-profile investigations of public hazards and corruption. They argue that such incidents demonstrate why the reforms proposed by this bill are necessary. Specifically, they say that the public had a keen interest in the tragic Ghost Ship fire that occurred in Oakland in December of 2016; alleged misconduct by former UC Davis Chancellor Linda Katehi; and the near collapse of the Oroville dam, but when investigative reporters sought documents related to these incidents government agencies delayed complying with their PRA requests, thereby thwarting expeditious investigations and consequently undermining public trust in the competence, ethical standards, and diligence of the government. Supporters of the bill allege that such delays are distressingly commonplace. In order to facilitate the public in obtaining the public records to which they are entitled and to give the public a point of contact about requests that are denied or delayed, the bill requires that public agencies designate a person or office to act as the agency’s custodian of records who is responsible for responding to PRA requests and handling inquiries from the public about denials of requests for public records. In order to encourage compliance with the PRA, the bill allows (but does not require) a court to assess a civil penalty against the agency in an amount not less than one thousand dollars ($1,000), nor more than five thousand dollar ($5,000), if the court finds that the agency did any of the following: (1) improperly withheld a public record that was clearly subject to disclosure; (2) unreasonably delayed providing the contents of a record subject to disclosure in whole or in part; (3) assessed an unreasonable or unauthorized fee upon a requester; or (4) otherwise did not act in good faith to comply with the PRA. Supporters of the bill have provided the Committee with numerous examples of local governments violating existing provisions of the PRA by committing all of these enumerated unlawful acts. The author will take a number of clarifying amendments in this Committee, specifically to remove the term “punitive damages,” and use the term “civil penalty”; limit the circumstances AB 1479 Page 2 under which a court can award such a penalty; change the term “supervisor” of records to “custodian” in order to be consistent with existing law; and add appropriate legislative findings that the bill increases the public’s access to government records. The bill summary and analysis reflect those amendments. The bill is supported by a number of transparency, civil rights, and open government advocates, as well as dozens of private citizens who sent emails and letters of support to the Committee. The bill is opposed by a coalition of local government organizations and utilities, as well as the Sutter County Board of Supervisors. SUMMARY: Seeks to increase transparency in the process for requesting access to public records under the California Public Records Act (PRA or CPRA), and to allow a court to assess civil penalties for a government agency’s bad faith non-compliance with the PRA. Specifically, this bill: 1) Requires that public agencies designate a person or office to act as the agency’s custodian to respond to any request made pursuant for a public record and any inquiry from the public about a decision by the agency to deny a request for records. 2) Allows a court, if it finds that an agency or custodian improperly withheld a public record that was clearly subject to disclosure, unreasonably delayed providing the contents of a record subject to disclosure in whole or in part, assessed an unreasonable or unauthorized fee upon a requester, or otherwise did not act in good faith to comply with the Act, to assess a civil penalty against the agency in an amount not less than one thousand dollars ($1,000) nor more than five thousand dollar ($5,000). 3) Makes legislative findings about how this act furthers the public’s access to public records: “By requiring local agencies to designate custodians of records responsible for responding to requests and inquiries under the California Public Records Act, this act furthers the public’s access to public records.” EXISTING LAW: 1) Provides, in the California Constitution, that “The people have the right of access to information concerning the conduct of the people’s business, and therefore . the writings of public officials and agencies shall be open to public scrutiny.” (Cal. Const., art. 1, sec. 3, subd. (b), par. (1).) 2) Requires, pursuant to the California Constitution, that “A state, court rule, or other authority . that limits the right of access shall be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.” (Cal. Const., art. 1, sec. 3, subd. (b), par. (2).) 3) Provides, under the PRA, that all public agency records are open to public inspection upon request, unless the records are otherwise exempt from public disclosure. (Government Code Section 6250 et seq. All further statutory references are to this code, unless otherwise indicated.) 4) Requires, 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, shall make the records promptly available to any AB 1479 Page 3 person upon payment of fees covering direct costs of duplication, or a statutory fee if applicable. (Section 6253 (b).) 5) Requires each agency, upon a request for a copy of records, to, within 10 days from receipt of the request, determine whether the request, in whole or in part, seeks copies of disclosable public records in the possession of the agency and shall promptly notify the person making the request of the determination and the reasons therefor. (Section 6253 (c).) 6) Allows, in unusual circumstances, the time limit prescribed in 5), above, to 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 a determination is expected to be dispatched, but provides that no notice shall specify a date that would result in an extension for more than 14 days and requires the agency, if it determines that the request seeks disclosable public records, to state the estimated date and time when the records will be made available. (Ibid.) 7) Defines "unusual circumstances" as the following, but only to the extent reasonably necessary to the proper processing of the particular request: a) 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. b) The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records that are demanded in a single request. c) 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. d) The need to compile data, to write programming language or a computer program, or to construct a computer report to extract data. (Ibid.) 8) Provides that “Nothing in [the PRA] shall be construed to permit an agency to delay or obstruct the inspection or copying of public records.” (Section 6253 (d).) 9) Requires that the notification of denial of any request for records required by Section 6255 shall set forth the names and titles or positions of each person responsible for the denial. (Ibid.) 10) Provides that, if the court finds that the public official’s decision to refuse disclosure is not justified, he or she shall order the public official to make the record public and also provides that if the judge determines that the public official was justified in refusing to make the record public, he or she shall return the item to the public official without disclosing its content with an order supporting the decision refusing disclosure. (Section 6259 (b).) 11) Requires the court to award court costs and reasonable attorney fees to the plaintiff should the plaintiff prevail in litigation filed pursuant to this section, specifies that the costs and fees shall be paid by the public agency, but also provides that the public official who denied the request does not have personal liability. (Section 6259 (d).) 12) Requires the court, if it finds that the plaintiff’s case is clearly frivolous, award court costs and reasonable attorney fees to the public agency.
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