Diabolical Bill To Prevent Public Access To California Government

Attacking the very fiber of American democracy, last Friday night the Democratic dominated California Legislature quietly added a last minute “trailer” into Governor Jerry Brown’s budget proposal that would have returned California local government quite literally to the dark ages.  More than half a century ago, California started to adopt laws requiring that public business actually be done in public.  The public was required to be given notice of public meetings and access to documents about public business.  Neither of these requirements should seem shocking to anyone interested in an open government free of corruption.  Last Friday night, the California Legislature adopted a bill undoing half a century of government accountability laws.

Quietly inserted as a trailer in the Governor’s proposed budget bill was language stating that because the California Public Records Act (“CPRA”) was an “unfunded state mandate” local county, city or agency compliance with the obligation to make public documents available to the public would no longer be required. The bill provided that the current provisions of the CPRA are to be labeled “best practices,” but any agency can eliminate the need for any compliance  with its obligation to provide any documents to the public by simply stating verbally at its first meeting each year that it will not use the CPRA provisions for that next year. Some fear that there is an ambiguity in the bill that may allow any agency to avoid compliance with CPRA requirements for the remainder of 2013 without the need for any vote or announcement. The bill is has been approved by the legislature and is on the way to the Governor for signature.

Some believe that the bill was introduced in reaction to the discovery that many counties, cities and other public agencies in California have allowed members of their staff and elected officials to maintain secret or private email or text accounts in which public documents are hidden from public view.  Some agencies have even adopted policies that while they will not provide cell phones or lap tops to elected officials, they will reimburse those officials for the cost of those devices.  In addition, few if any public agencies have policies requiring the texts of public officials be maintained by the City or produced as public records even if those texts solely reflect public business.  Often these agencies will then contend that any communications to or from the “private” devices are not subject to disclosure as “public records.”  Needless to say, this contention is not supported by the law and public trust is challenged when public officials conduct much of their official duties on a public electronic network but only “special” communications through “private” email or texts.

According to the logic of folks contending that communications on “private devices” are not public records requiring public disclosure, if the Mayor of a city bought a filing cabinet, was reimbursed by the City for its cost, placed the filing cabinet in his home and began putting City contracts in that filing cabinet, those clearly public records would magically no longer be subject to the disclosure requirements of the Public Records Act.  I find this an enormous and disturbing development that will negatively impact all Californians.

This brash effort by California Democrats to attack open government may have backfired.  Following a flood of negative press reports, I am now hearing reports that the Assembly may take action as soon as tomorrow to rescind the repeal of the Public Records Act.  I truly hope that these preliminary reports about this dramatic reversal of course are accurate and that California is not further plunged into the political dark ages.

The relevant portion of the bill follows:

6252.8.

  (a) Commencing on the effective date of the act adding this section, notwithstanding any other law, any mandates set forth in the following provisions shall not apply to a local agency. Compliance with these provisions shall be at the discretion of the local agency. For local agencies, these provisions represent best practices which they are encouraged, but are not required, to follow:

(1) The requirement in subdivision (c) of Section 6253 that:

(A) Within 10 days from receipt of a request for a copy of records, provide to the person making the request verbal or written notice of the disclosure determination and the reasons for the determination. This activity includes, where applicable:

(i) Drafting, editing, and reviewing a written notice to the person making the request, setting forth the reasons for the determination.

(ii) Obtaining agency head, or his or her designee, approval and signature of a written notice of determination.

(iii) Sending or transmitting the notice to the requestor.

(B) If the 10-day time limit to notify the person making the records request of the disclosure determination is extended due to “unusual circumstances,” as defined by paragraphs (1)through (4), inclusive, of subdivision (c) of Section 6253 of the Government Code, the agency head, or his or her designee, shall provide written notice to the person making the request, setting forth the reasons of the extension and the date on which a determination is expected to be dispatched. This activity includes, where applicable:

(i) Drafting, editing, and reviewing a written notice to the person making the request, setting forth the reasons for the extension of time.

(ii) Obtaining agency head, or his or her designee, approval and signature of the notice of determination or notice of extension.

(iii) Sending or transmitting the notice to the requestor.

(2) Section 6253.1.

(3) Section 6253.9. As on this requirement, the local agency may determine the format of electronic data to be provided in response to a request for information.

(4) Section 6254.3.

(5) Subdivision (b) of Section 6255.

(b) Beginning on January 1, 2014, a local agency that determines that it will not follow these best practices, shall so announce orally at its next regularly scheduled public meeting and annually thereafter at a regularly scheduled public meeting.