California Bill Introduces New Hurdle to Access Public Records

SACRAMENTO, Calif. (CN) – A San Diego lawmaker is trying to complicate the already convoluted process that reporters and Californians must take to view public records and make it harder for requesters to recoup attorney’s fees when they prevail over the government in court.

Introduced last Friday just ahead of a deadline for new bill proposals, Senate Bill 615 would require anyone not satisfied with a public records request to mediate with the relevant government agency before taking it to court.

Open government groups are warning that SB 615, by state Sen. Ben Hueso, D-San Diego, would create a host of “time-consuming hurdles” for people seeking records from agencies like police departments and school districts under California’s landmark Public Records Act. They say it would also shield agencies from paying attorneys fees in instances when a judge ruled they were wrongly withholding requested information. 

“I can’t think of a proposal that would gut the public records act more than this,” said California News Publishers Association counsel Jim Ewert in a phone interview. “Because this is the only provision in the entire body of the law that allows for enforcement. This completely upends the plank.”

The legislation comes on the heels of a 2018 law which brought police officer misconduct records under the umbrella of the public records act. Civil rights and First Amendment groups called the amendment to the public records act historic and a chief victory for the public’s right to know.

Introduced by state Sen. Nancy Skinner, D-Berkeley, Senate Bill 1421 opened up access to personnel records on police shootings, excessive uses of force that resulted in death or “great bodily injury” and confirmed cases of sexual assault and lying by officers while on duty. Since Jan. 1 when the law went into effect, law enforcement agencies up and down the Golden State have been slapped with countless public records requests.

But rather than build off the improvements SB 1421 made to the public records act, the First Amendment Coalition says Hueso’s bill would be a major setback.

“People already have to wait far too long, and have to fight far too hard, to get the information they’re entitled to under the law. This bill would add intolerably to these delays,” First Amendment Coalition attorney David Snyder said in an email Monday.

The 1968 law covers all local and state agencies, except legislative and judicial bodies, and opens up things like sound recordings, emails and office memos up to public examination. Anyone can submit a written request and agencies are supposed to respond within 10 days. The law gives several ways for agencies to exempt records, but they are supposed to provide a reason for denying a request.

Public records requests are useful tools for journalists, lawyers, environmentalists and citizens researching their government. Often times, requesters are forced to sue for a writ of mandate in state court to try and obtain withheld records.

Hueso’s office says the bill is being sponsored by the San Diego City Attorney’s Office and that the authors are “open and willing” for discussions with SB 615’s critics.

“The intent of SB 615 is to make the public records request process efficient and streamlined for all parties involved,” said Hueso’s communications director Erin Hickey in an email.  

Yet Hueso’s bill would add an extra step to the process by forcing requesters to first meet in “good faith” with the agency before filing a lawsuit.

“This bill would require a person to meet and confer in good faith with the agency in an attempt to informally resolve each issue before instituting any proceeding for injunctive or declarative relief or writ of mandate. The bill would require the person or their attorney to file a declaration stating that this has occurred at the time that proceedings are instituted,” SB 615 states.

Ewert notes that the law already requires agencies to assist requesters in identifying records and says he’s suspicious of the meet and confer clause.

“It seems like it’s an attempt to force a requester to bargain away rights to information that they otherwise should be able to obtain under the law,” Ewert said. “That is not in the public’s interest.”

Furthermore, both Ewert and Snyder agree that SB 615 would create an “almost impossible” set of standards for a requester to meet if they win in court and want to recover court costs. If judges become hesitant to order government agencies to repay fees, lawyers might stop taking public records cases.

There’s plenty of time for the bill to be amended but open government groups are not taking the current proposal lightly. Hueso chairs a committee and is an influential member in the Democratic-controlled Senate.

“This bill is not just a solution in search of a problem – it is problem in search of a problem,” Snyder said.

%d bloggers like this: