California Legislature Guts State Records Law

     SACRAMENTO, Calif. (CN) - A pair of trailer bills tucked into California's $96.3 billion budget package essentially guts the state's public records law, open government advocates claim.
     Senate Bill 71 and Assembly Bill 76, tacked onto the 2013-14 budget bill passed by legislators last week, indefinitely suspended a requirement of local governments to comply with aspects of the California Public Records Act. Gov. Jerry Brown is expected to sign the budget by the June 30 deadline.
     Nestled between non sequiturs dealing with school bond expenditures and state disaster assistance, AB 76 encourages local agencies to use the Public Records Act as a "best practices" model but gives them a pass on compliance.
     Currently, the state constitution requires agencies to assist requesters in the framing of their requests and provide electronic records in whatever format the requester asks within a 10-day window.
     Both trailer bills remove the legal obligations that county, city, educational and special district agencies face on public requests for records. The clearance is conditioned on the agencies stating - publicly and annually - that they do not intend to comply with the requirements of the Public Records Act.
     Both the Assembly version and SB 71 note that the state constitution requires that any limits to public access be justified "with findings demonstrating the interest protected by the limitation and the need for protecting that interest."
     In this case, lawmakers claim the justification comes in the form of saving money. Public Records Act provisions, signed by Gov. Ronald Reagan after voters passed Proposition 59 in 1968, allow cash-strapped local governments to demand that the state reimburse them for costs associated with transparency.
     But how much money - if any - the state will save by suspending mandatory Public Records Act requirements remains unclear. State Sen. Leland Yee, D-San Francisco, criticized his colleagues' actions as a farce.
     "It's not about saving money - it's all about curtailing an open, transparent government that can be held accountable," Yee told the San Jose Mercury News. "The only way we're held accountable is when the public has the information to understand what were doing."
     Open-government advocate Terry Francke, of the watchdog group Californians Aware, agreed that cost savings have nothing to do with the bills' passage.
     "The suspect circumstance of this move is that no one has been willing to go on record with even an estimate of the cost savings to the state," Francke wrote on the CalAware website. "Any reimbursement claims sent to the controller so far have not accumulated to the point that a number can be ventured. Thus the suspensions cannot be justified by fiscal necessity."
     Francke continued: "So what are they doing in a budget bill? One reasonable conclusion is that someone simply wants to take these burdens off local government whether they are threatening the state treasury or not. That's certainly the laissez faire message of [the trailer bills]."
     Other critics include the California Newspaper Publisher's Association, which has also been at odds with lawmakers this year over a scheme to charge $10 per file to look at public court records. A joint budget conference committee killed that plan earlier this month.
     Jim Ewert, general counsel of the California Newspaper Publisher's Association, called the lawmakers' latest maneuver "the worst assault on the public's right to know I have seen in my 18 years of doing this."
     He also criticized the way the bills were passed, saying "not one policy committee read this thing."
     The ACLU of Northern California called the legislators' actions a "surreptitious, late-night assault on the public's right to know."
     "Interfering with public access to public records will only shroud elected officials in more secrecy at a time when transparency is more crucial than ever before," ACLU spokesman Will Matthews said.
     The move by lawmakers comes just three months after a Santa Clara County superior court judge ordered the San Jose City Council to turn over phone and email records related to a redevelopment project, ruling that Public Records Act extends to any official communication - including those sent and received from personal devices and private accounts. San Jose has appealed that ruling in a writ of mandate to the Sixth Appellate District.