HomeMy WebLinkAboutAB 1479 - Amending the CA Public Records Act CITY OF PALM DESERT
DEPARTMENT OF ADMINISTRATIVE SERVICES
STAFF REPORT
REQUEST: CONSIDERATION TO APPROVE A LETTER OF OPPOSITION FOR AB
1479 (BONTA).
SUBMITTED BY: Stephen Y. Aryan, Risk Manager
DATE: June 8, 2017
CONTENTS: 1. AB 1479 (Bonta) Bill Information
2. Draft Opposition Letter
Recommendation
By Minute Motion, approve a letter of opposition for AB 1479 (Bonta).
Commission Recommendation
The Palm Desert Legislative Review Committee met on May 26, 2017, and recommended that
the City Council send a letter of opposition for AB 1479 (Bonta).
Strategic Plan
This item is not directly related to any category within the Palm Desert Strategic Plan.
Background
The Palm Desert Legislative Review Committee met on May 26, 2017, and reviewed numerous
bills for consideration of City support or opposition. The Committee recommends opposing
Assembly Bill 1479 (Bonta) that amends the California Public Records Act (PRA).
Existing law provides, under the PRA, that all public agency records are open to public inspection
upon request, unless the records are otherwise exempt from public disclosure. It also requires,
except with respect to public records exempt from disclosure, that a public agency must make the
records promptly available to any person upon payment of fees covering direct costs of
duplication, or a statutory fee if applicable. A public agency is also required within 10 days from
receipt of a request to determine whether the request, in whole or in part, seeks copies of
disclosable public records in the possession of the agency.
Specifically, AB 1479 would amend the PRA as follows:
1. Requires that public agencies designate a person or office to act as the agency's
custodian to respond to any request made pursuant for a public record request and any
inquiry from the public about a decision by the agency to deny a request for records.
Staff Report: Opposition of AB 1479 (Bonta)
June 8, 2017
Page 2 of 2
2. Allows a court, to assess a civil penalty against the agency in an amount of $1,000 to
$5,000, if it finds that an agency or custodian (a) improperly withheld a public record that
was clearly subject to disclosure, (b) unreasonably delayed providing the contents of a
record subject to disclosure in whole or in part, (c) assessed an unreasonable or
unauthorized fee upon a requester, or (d) otherwise did not act in good faith to comply with
the Act.
AB 1479 places substantial burdens on local agencies by including onerous, costly, and
unnecessary requirements in processing public records requests. The measure establishes new
and costly punitive damages assessed to agencies above and beyond plaintiffs' attorney fees
established in current law. This bill also fails to take into account that many public records
requests are often made by requesters/private organizations that make multiple requests for
complex data that is then repackaged and sold. This increased volume has already placed an
additional burden on staff.
AB 1479 also creates increased litigation for local agencies as a requester can file suit on the day
after responsive records are due, which can be as early as eleven days after the request if there
has been no time extension. Once a suit is filed, generous attorney fees and punitive damages as
high as $5,000 per violation may still be awarded, even if the agency discloses the requested
records after litigation commenced. For these reasons, the Legislative Review Committee
respectfully recommends that the City Council oppose AB 1479. Please note that the League of
California Cities also opposes this measure.
Fiscal Analysis
There is currently no quantifiable fiscal impact associated with opposition to this bill.
Submitted By:
Stephe Y. an, R k Man ger
Reviewed By:
;/'7
%cney, Diree or of Administrative Services
Approval:
Lauri Aylaian, City Manager
AMENDED IN ASSEMBLY APRIL 27, 2017
AMENDED IN ASSEMBLY MARCH 21, 2017
CALIFORNIA LEGISLATURE-2017-18 REGULAR SESSION
ASSEMBLY BILL No. 1479
Introduced by Assembly Member Bonta
(Coauthor:Assembly Member Cristina Garcia)
February 17, 2017
An act to amend Sections 6255 and 6259 of the Government Code,
relating to public records.
LEGISLATIVE COUNSEL'S DIGEST
AB 1479, as amended, Bonta. Public records:_uperviser custodian
of records:41ms.civil penalties.
Existing law, the California Public Records Act, requires a public
agency, defined to mean any state or local agency, to make its public
records available for public inspection and to make copies available
upon request and payment of a fee,unless the public records are exempt
from disclosure. Existing law requires an agency to justify withholding
a record from disclosure by demonstrating either that the record in
question is exempt under express provisions of law or that on the facts
of the particular case the public interest served by not disclosing the
record clearly outweighs the public interest served by disclosure of the
record. Existing law requires specified state and local agencies to
establish written guidelines for accessibility of records. Existing law
authorizes a person to institute proceedings for injunctive or declarative
relief or writ of mandate in any court of competent jurisdiction to enforce
his or her right to inspect or to receive a copy of any public record or
class of public records under these provisions.
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AB 1479 —2—
This bill would require public agencies t
designate a person or office to act as the agency's custodian of records
wh
is-denied7 is responsible for responding to any request made pursuant
to the California Public Records Act and any inquiry from the public
about a decision by the agency to deny a request for records. The bill
also would make other conforming changes. Because the bill would
require local agencies to perform additional duties,the bill would impose
a state-mandated local program.
The bill would also authorize a court that finds that an agency or the
custodian improperly withheld-puhlie-reeerds from a member of the
public, public records which
were clearly subject to public disclosure, unreasonably delayed
providing the contents of a record subject to disclosure in whole or in
part, assessed an unreasonable or unauthorized fee upon a requester,
or otherwise did not act in good faith to comply with these provisions,
to assess a civil penalty against the agency in an
amount not less than $1,000, nor more than $c,000, that shall b_
by-the-14117$5,000.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the state.
Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this act
for a specified reason.
The California Constitution requires local agencies,for the purpose
of ensuring public access to the meetings of public bodies and the
writings of public officials and agencies, to comply with a statutory
enactment that amends or enacts laws relating to public records or
open meetings and contains findings demonstrating that the enactment
furthers the constitutional requirements relating to this purpose.
97
—3— AB 1479
This bill would make legislative findings to that effect.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
The people of the State of California do enact as follows:
1 SECTION 1. Section 6255 of the Government Code is amended
2 to read:
3 6255. (a) The agency shall justify withholding any record by
4 demonstrating that the record in question is exempt under express
5 provisions of this chapter or that on the facts of the particular case
6 the public interest served by not disclosing the record clearly
7 outweighs the public interest served by disclosure of the record.
8 (b) A response to a written request for inspection or copies of
9 public records that includes a determination that the request is
10 denied, in whole or in part, shall be in writing.
11 (c) Each agency shall designate a person
12 or office to act as the agency's custodian of records who-shall
13 reviewittletertnittation is responsible for responding to any request
14 made pursuant to this chapter and any inquiry from the public
15 about a decision by the agency-that to deny a request for-reeerds
16 i d.records.
17 SEC. 2. Section 6259 of the Government Code is amended to
18 read:
19 6259. (a) Whenever it is made to appear by verified petition
20 to the superior court of the county where the records or some part
21 thereof are situated that certain public records are being improperly
22 withheld from a member of the public, the court shall order the
23 superviser custodian of records or person charged with withholding
24 the records to disclose the public record or show cause why he or
25 she should not do so. The court shall decide the case after
26 examining the record in camera, if permitted by subdivision (b)
27 of Section 915 of the Evidence Code, papers filed by the parties
28 and any oral argument and additional evidence as the court may
29 allow.
30 (b) If the court finds that the custodian of records'
31 or other public official's decision to refuse disclosure is not
32 justified under Section 6254 or 6255, he or she shall order the
33 supervisor custodian of records or public official to make the record
34 public. If the judge determines that the-supervisor custodian of
97
AB 1479 —4-
1 records or other public official was justified in refusing to make
2 the record public,he or she shall return the item to the-supervisor
3 custodian of records or other public official without disclosing its
4 content with an order supporting the decision refusing disclosure.
5 (c) In an action filed on or after January 1, 1991, an order of
6 the court, either directing disclosure by a public official or
7 supporting the decision of the custodian of records or
8 other public official refusing disclosure,is not a final judgment or
9 order within the meaning of Section 904.1 of the Code of Civil
10 Procedure from which an appeal may be taken, but shall be
11 immediately reviewable by petition to the appellate court for the
12 issuance of an extraordinary writ.Upon entry of any order pursuant
13 to this section,a party shall, in order to obtain review of the order,
14 file a petition within 20 days after service upon him or her of a
15 written notice of entry of the order, or within a further time not
16 exceeding an additional 20 days as the trial court may for good
17 cause allow.If the notice is served by mail,the period within which
18 to file the petition shall be increased by five days. A stay of an
19 order or judgment shall not be granted unless the petitioning party
20 demonstrates it will otherwise sustain irreparable damage and
21 probable success on the merits.Any person who fails to obey the
22 order of the court shall be cited to show cause why he or she is not
23 in contempt of court.
24 (d) (1) The court shall award court costs and reasonable attorney
25 fees to the plaintiff should the plaintiff prevail in litigation filed
26 pursuant to this section. The costs and fees shall be paid by the
27 public agency of which th custodian of records or
28 public official is a member or employee and shall not become a
29 personal liability of the custodian of records or public
30 official.
31 (2) If the court finds that the plaintiff's case is clearly frivolous,
32 it shall award court costs and reasonable attorney fees to the public
33 agency.
34 (3) If a court finds that an agency or the custodian
35 of records or other public official of an agency improperly withheld
36 a public record from a member of the public ,
37
38 , that was clearly subject to public disclosure,
39 unreasonably delayed providing the contents of a record subject
40 to disclosure in whole or in part, assessed an unreasonable or
97
—5— AB 1479
1 unauthorized fee upon a requester,or otherwise did not act in good
2 faith to comply with this chapter, the court may assess-purritive
3 damages a civil penalty against the agency in an amount not less
4 than one thousand dollars ($1,000) nor more than five thousand
5 dollars ,
6 ,
7 ($5,000).
8 SEn If.L_Commission o_ Statc Ma_datc, d_tc...tit _s that
9 ,
10
11
12 e ofTitic 2 o fthc Cove.___.Code
13 SEC. 3. No reimbursement is required by this act pursuant to
14 Section 6 of Article XIII B of the California Constitution because
15 the only costs that may be incurred by a local agency or school
16 district under this act would result from a legislative mandate that
17 is within the scope of paragraph (7) of subdivision (b) of Section
18 3 of Article I of the California Constitution.
19 SEC. 4. The Legislature finds and declares that Sections 1 and
20 2 of this act, which amend Sections 6255 and 6259 of the
21 Government Code, respectively, further, within the meaning of
22 paragraph (7) of subdivision (b) of Section 3 of Article I of the
23 California Constitution, the purposes of that constitutional section
24 as it relates to the right of public access to the meetings of local
25 public bodies or the writings of local public officials and local
26 agencies. Pursuant to paragraph (7) of subdivision (b) of Section
27 3 of Article I of the California Constitution, the Legislature makes
28 the following findings:
29 By requiring local agencies to designate custodians of records
30 responsible for responding to requests and inquiries under the
31 California Public Records Act, this act furthers the public's access
32 to public records.
0
97
Df A FT
June 8, 2017
The Honorable Rob Bonta
State Capitol Building
P.O. Box 942849
Sacramento, CA 94249-0018
RE: AB 1479 (Bonta)- Public records: custodian of records: civil penalties.
Notice of Opposition (As amended 04/27/17)
Dear Assembly Member Bonta:
On behalf of the City of Palm Desert, I want to respectfully voice our opposition to Assembly Bill
1479 (Bonta), which would place substantial burdens on local agencies by adding onerous, costly and
unnecessary requirements in processing California Public Records Act (CPRA) requests.
Palm Desert's City Clerk and City Attorney already collaborate closely in reviewing records requests
and exemptions and/or denials are carefully scrutinized. It is always our policy to ensure information
remains widely accessible to the public whenever legally possible. AB 1479 would cause further delays in
processing requests, whereby every request denial would have to be reviewed by a designated Supervisor
of Record before a final determination can be issued.
AB 1479 also does not account for serial filers of public records requests that make incredibly
complex data requests, which are often repackaged and sold for a profit. Due to the increased volume of
such requests, many public agencies have hired additional staff dedicated solely to review documents in
association with CPRA requests.
This measure also creates increased litigation for local agencies under the CPRA. A requester can
file suit on the day after responsive records are due, which could be as early as eleven days after the
request (if no time extension). Adding the additional punitive damages awards as high as $5,000 per
violation will lead to a litany of satellite litigation given the grounds for punitive damages are so vast.
For these reasons, the City of Palm Desert respectfully opposes AB 1479.
Sincerely,
JAN C. HARNIK
MAYOR
cc: City Council
The Honorable Jeff Stone, California State Senate
The Honorable Chad Mayes, California State Assembly
Anthony D. Gonsalves, Joe A. Gonsalves & Sons (donsalvesagonsalvi.com)
Erin Sasse, League of California Cities (esassecacities.orq)
Lauri Aylaian, City Manager
Stephen Y. Aryan, Risk Manager
Janet Moore, Director of Finance/City Treasurer