California Public Record Act threatened by stealth amendments
June 15, 2013
REQUEST from the FIRST AMENDMENT COALITION
The California Public Records Act (CPRA) is gravely threatened by stealth amendments revealed for the first time yesterday as part of a “trailer bill” to the new state budget. Instead of the relatively minor cost-saving tweaks proposed earlier by the governor and approved in legislative committees, the actual amending language will gut key transparency safeguards in California’s most important open-government law.
I am writing to ask you to call on Governor Brown to veto the relevant portions of the budget trailer bill that is headed to his desk as early as tomorrow. We invite you to do this by email to the Governor office, using the form provided in this email.
How, exactly, will the budget trailer bill undercut the CPRA and set back open government?
1) Public access to data controlled by local governments, so important to open-data and big-data initiatives, will come to an end. The final trailer bill, SB 71, eliminates the requirement of existing law that agencies must make available “electronic” records or information in “any format” in which the agency already holds them. Gov Code sec. 6253.9(a)(1). Instead, according to SB 71, “the local agency may determine the format of electronic data to be provided in response to a request for information.”
This change will empower local governments to limit data access to situations in which the requested data will show government agencies and officials in a positive light. All other requests for data will be blocked by producing data in formats that are unusable in databases. Example: Requests for data held in .xls (Excel) or .csv formats will be produced (if at all) as .pdf files–even though the agency has the data in the requested formats and therefore can provide it in the requested formats at no cost.
2) Local governments, when denying written requests for public records, will no longer be required to give a reason for the denial. SB 71 purports to make that common sense requirement (found in Gov Code sec. 6255(b)) completely optional. What does optional mean? You can be sure that all lawyers for cities, counties or school boards, once they become aware of this change, will advise their clients to give no reasons for denying records.
3) Local governments may even take the position that SB 71’s changes free them from any obligation to communicate–at all!—with requesters about the status of a denied CPRA request. Agencies that believe requested records are exempt from disclosure could elect to say nothing to the requester, leaving him/her in the dark, unable to determine–without suing–whether the requested records will be disclosed or withheld.
Tell Governor Brown to veto the provisions of SB 71 that would affect these changes in existing law.
Peter Scheer, a lawyer and journalist, is executive director of the First Amendment Coalition.