California Public Records Access at Risk

In a move the legislature and Governor may have hoped would go unnoticed, language was introduced in Assembly Bill 76 that would make public access to records more difficult, especially in times of tight local budgets.

The provisions of the bill would remove any potential financial support from the state to local governments when complying with records requests. However, currently no cities or counties have even billed the state for compliance, but some Public agencies do charge requesters to cover costs for complying to requests under current law.  Despite that, in an apparent “give back” to the cities and counties, the act would actually weaken the rules of compliance, so that while agencies may then claim to intend to respond to valid and legal records requests, they would be able to delay the response so long that the requestor may finally give up. Under these new rules government agencies would also no longer be held to a 10 day limit to respond to requests, and would allow them to delay or deny requests without giving justification. They would not be required to help the public obtain records efficiently; for example by printing them on paper rather than providing them electronically.

Recent statements from Governor Brown indicate he may sign the bill into law, despite recent misgivings from the Legislators

“Deep pocket” users, such as the larger press organizations, will have the option to file lawsuits, which would likely spur the agencies to comply quickly rather than fight them in court. But smaller requestors, who may not have access to high priced attorneys,  will likely end up waiting and hoping, or even giving up in the face of the frustration of a delayed or complete lack of a response. This may initially be more prevalent in smaller communities, who often don’t have the systems in place today to easily answer all requests, and will face further cuts to the financial support to help them. But even larger agencies, which may have systems in place today, and plan no changes to their response as a result, will very likely face challenges in the future, and use these provisions to allow them to put off compliance, blaming it on system changes and budget cuts.

The Governor’s office has stated that the intent is not to change any provisions of the actual Freedom Of Information act, but only to save the state budget from the costs of supporting it. They feel that the only change is that the state would no longer have to foot the bill. But as we have seen time and time again, when the state support to local governments dries up, services usually dry up too. Reduced staffing and support for local parks, libraries, infrastructure, and of course schools is evident in all but the wealthiest communities. And the shifting of prisoners from state to county facilities has resulted in more early releases, parole violations and recidivism – in effect more criminals on the street.

The net result of the bill passing as it is will likely be slow, and come without much notice. Agencies with systems in place will continue to comply with records requests as they do today, and the public, who often take the benefits of open information for granted, will probably not notice any changes. However, as time goes on, and staff turnover and reductions inevitably happen, the ability to answer records requests will slowly deteriorate. And those tasked with responding to the requests will find plenty of excuses to drag their feet in responding. Even those who bring a lawsuit to get what they are asking for may find it difficult to get results when the language in the law makes former rules “optional best practices”. News companies, victims’ rights organizations, researchers, and other interested parties who get this information to share with the public will slowly find their access drying up, and the information they strive to provide will be less and less complete.

The California Assembly leadership has responded to the initial outcry of the bill, and now plan to send Senate Bill 71, without these proposed changes, to the Governor. Brown will then have the choice of signing either  AB 76 – with these changes, or SB 71 – without them. In the meantime, both the Governor and Legislative leaders are considering a State Constitutional amendment that would put the Public Records Act provisions permanently in place. What everyone should remember is that the providing assistance to define the correct public record was just placed in the California constitution, which AB 76 will nullify. That provision was voted on by the public just a few short years ago. And according to statements by Governor Brown and Senate and Assembly leaders, a future Constitutional amendment would still not necessarily provide any needed funding for records compliance, and could even put into place the relaxed rules built into AB 76.

Read More:

LA Times: Gov. Jerry Brown stays mum on fracas over public records law

LA Times: Assembly, in reversal, votes to preserve public records law

Mercury News: Document: Letter to Governor Jerry Brown regarding California Public Records Act