The state budget that passed the Legislature last week contains language that could gut the California Public Records Act, the 1968 law that requires “the people’s business” to be conducted transparently and ensures that the public has access to most government records.
The Democratic-controlled Legislature approved the $96.3 billion budget Friday, with state Sen. Hannah-Beth Jackson, D-Santa Barbara, and Assemblyman Das Williams, D-Santa Barbara, voting for the bill. Assemblyman Katcho Achadjian, R-San Luis Obispo, who represents northern Santa Barbara County, voted against it.
Gov. Jerry Brown is expected to sign the legislation soon, ensuring the budget is enacted by its July 1 deadline.
Tucked into the bill, however, is a key amendment that could severely hamper the public’s ability to track government spending and hold local officials accountable.
Senate Bill 71 makes portions of the Public Records Act process optional for local government agencies. If the agencies choose not to comply, they won’t have to respond to a public request for information within 10 days or provide any reason for taking longer than 10 days, or they can deny the request altogether. Under the bill, they also can choose an alternate format to release information that is available electronically.
“This is an outrageous loophole for government transparency,” Noozhawk publisher Bill Macfadyen said. “While claiming to pinch pennies in a $96 billion budget, legislators are instead making it easier to hide government activities from taxpayers, from the media and from watchdog organizations.
“The public has limited recourse against the formidable power of government, but the requirement of transparency generally makes it a fair fight.”
Under the legislation, local agencies are “encouraged” to follow the Public Records Act “as best practices,” but any agency can merely announce that it will not be compliant at its first regularly scheduled meeting after Jan. 1, 2014, and annually afterward.
The bill takes effect as soon as Brown signs it, however, so government agencies that are predisposed to withholding information could do so now, and not declare it until January, noted Jim Ewert, general counsel for the California Newspapers Publishers Association.
“It’s a little disconcerting to say the least, and that’s putting it lightly,” he said.
Ewert and his organization hope to sit down with legislators and stakeholders to “try and clean this up,” but they don’t have much time before the budget’s deadline at the end of the month.
“For agencies that decide they no longer want to follow these provisions in the act, it’s going to create a very difficult situation for both the public and the agencies,” Ewert said. “I think this is going to be a litigation cauldron because nobody’s going to know what the scope of the provisions are.”
Eliminating the requirement for agencies to provide electronic records will allow local governments to limit data access, according to the First Amendment Coalition, a nonprofit public interest group.
Data can be produced in formats that are unusable in databases, perhaps as PDF files instead of Excel files, even if the agency already has the data in the requested format, First Amendment Coalition members wrote in a commentary piece against the SB 71 language.
The bill also could eliminate the requirement for agencies to help people with their requests for information, and give no reason for denying a request. If someone asks for information that an agency argues is exempt, it starts a dialogue about the information and how to request information that is legally available, Ewert said.
“Now, the only way a requester is going to know about that is if he or she sues!” he said. “And agencies can’t be too fond of that either.”
Brown and the Department of Finance argue that the state shouldn’t have to reimburse local agencies for processing these requests, but Ewert said the administration never identified a figure associated with savings for this policy change.
“We can’t even do a cost-benefit analysis because there’s no number!” he exclaimed.
Jackson, who co-sponsored the bill in the Senate, said the measure shifts the cost for maintaining local records to local governments instead of the state, but doesn’t suspend the Public Records Act itself. She said the state currently reimburses local agencies for the cost of their compliance, which she said amounts to “tens of millions of dollars” annually, without much accountability on the real cost to local communities for providing the services.
The Legislative Analyst’s Office didn’t have “an exact number” on this, she said.
“The two major portions of the act — assistance in seeking public records and the notification requirement — were both bills that were passed while I was in the state Assembly and I supported both of them,” Jackson said. “I and probably most of the people here do support access to public records; this simply shifted the fiscal responsibility.”
Local governments can still charge reasonable costs for copies and processing fees, as they already do.
Jackson acknowledged that the Public Records Act will be optional for governments to follow in the future.
“It’s optional to the extent that local jurisdictions are urged to do best practices and if they choose not to, they’ll have to answer to the local community,” she said.
Jackson, who supported the fight against an unsuccessful proposal by Brown to charge the public a $10 per file court records fee, said accountability should be a priority, but the state can’t afford to pay for local governments to provide records.
“It’s a compromise document, that’s the nature of politics,” she said.
Macfadyen argued that legislators have no right to make compromises with the public’s access.
“California’s Public Records Act was passed in 1968 to make sure the people’s business is conducted in full view of all, and voters added it to the state Constitution in 2004,” he said.
“For Sacramento to turn around and defy the public’s will is a chilling development for all Californians.”
The City of Santa Barbara plans to continue replying to Public Records Act requests as usual, said Marcelo Lopez, assistant city administrator.
“We’re planning to stay in compliance and honor the way we have replied to requests for public information in the past,” he said.
“If we have the information, we’ll provide it to you.”
Goleta Mayor Roger Aceves wasn’t aware of the specifics included in SB 71, and said he would be checking with city staff to get more information. He noted that the City of Goleta prides itself on being transparent and responding to records requests in a timely manner.