Hidden in the budget process a couple of days ago were trailer bills, SB 71 and SB 76, which passed in both the Senate and the Assembly. Last minute bills have become the norm rather than the exception under Governor Jerry Brown’s rule.
These bills will make the Public Records Act optional for local agencies and make it difficult for those who seek information for the public good. It is rumored that many legislators weren’t even aware of changes to these bills and frankly they may have just voted blindly on them. It’s called follow the leader or leadership - a “trust me” kind of atmosphere.
Here’s why you should care. Watchdog groups, investigative reporters, and the everyday citizen is no longer assured of getting important information on a timely basis, if at all. While this new law appears to be for local agency activity only, that’s a big deal since it opens the door for more abuse that affects the public’s right to know.
The California state constitution guarantees the public right to scrutinize the actions of public officials and agencies.
ARTICLE 1 DECLARATION OF RIGHTS
SEC. 3. (b) (1) 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.
It is still the duty of the local agencies to follow the constitution but these changes will delay the process. Local agencies will be able to pick and choose what they want to disclose and “when” they want to disclose them. This will not only interfere with getting issues out in the public on a timely basis, but could prevent or delay a rogue agency from being sued in courts if the information is not readily available. As many in political life know, time delay can be a killer.
Perhaps meetings with “sensitive topics” could be held at local agency sites joined with a state agency attendance. If the local agency is the record holder, could these meetings be subject to the new rules too? No one knows for sure.
Specifically in SB 71 – an amendment of the Public Records Act includes these changes for local agencies:
· Does not require the acknowledgement of the request
· Does not require informing the requester of any delays
· Does not require the agency to assist in identifying the records. Currently it is the responsibility of the agency to be helpful in fulfilling the request. Think about it, how does anyone other than the employees of an agency, know specifically what a document is called or exactly where the information sits. The answer is you don’t know, unless you learned about it and have asked for it over and over again.
· Does not require justification when the agency declines a request. Currently it must tell you why it is declining your request. In the case of sensitive information, it’s likely than an agency will give no information especially if that agency feels vulnerable to lawsuit.
· The new law also allows an agency to determine in which format it will send any information you have requested. Right now you can request electronic formatting. It is supposed to send you the information in the format it is stored in. The new law would allow the agency to choose the electronic format they send. Example: If an excel file is sent in PDF format, it makes it more difficult to look at data unless you re-entered all the data.
Make no bones about it; the current Public Records Act is no cakewalk. It is currently being violated left and right. Why? Because they can. It seems that if the agency doesn’t want to provide the information you seek, it stonewalls you as best it can. Agencies commonly use the category “draft” in an unlawful way. You see, there is no enforcement of civil law unless you sue. They know suing takes time and money and they’re betting you won’t do it; after all is very intimidating to sue the state. But if you do sue, you have a strong likelihood of a win if you have your documentation.
Since the bill passed both the Senate and the Assembly, the Governor can choose to sign this bill or not. Please contact the Governor and make it clear that this is unacceptable to you. Please just do it. Sometimes it takes many voices to be heard in order to make an impact.
- Governor Brown’s Phone Number: 916-445-2841
- Governor Brown’s FAX Number : 916-558-3160
- Text of an email from the First Amendment Coalition that you can use.
Regardless of your political beliefs, in our state we have a one party majority in both houses. This offers the perfect atmosphere for abuse. Without balance, a healthy debate just isn’t possible when one party can do what it likes.
Please also tell your elected officials both in the Senate and the Assembly if they voted yes on this, even inadvertently due to the fast moving situation, without their immediate interaction to reverse this, you’ll be voting against them when it comes re-election time for endangering your liberties. There's still time for them to act.
This law needs to be made stronger, not weaker.