HomeMy WebLinkAboutLegislative Review CMTE SB 1832 (Kehoe)M
CITY OF PALM DESERT
Community Services Division
Staff Report
REQUEST: CONSIDERATION OF LEGISLATIVE REVIEW COMMITTEE
ACTION ON SB 1832 (KEHOE) AT ITS MEETING OF APRIL 5, 2006
SUBMITTED BY: Patricia Scully, CFEE, Senior Management Analyst
DATE: April 27, 2006
CONTENTS: SB 1832 Language
RECOMMENDATION:
By Minute Motion, concur with the action taken by the Legislative Review Committee at its
meeting of April 5, 2006, and direct staff to prepare a letter of opposition for the Mayor's
signature with regard to SB 1832 (Kehoe) relative to fee waivers.
EXECUTIVE SUMMARY:
Passage of SB 1832 would prohibit local agencies from charging copying fees for public
records.
BACKGROUND:
Current law requires that local agencies make their records available for public inspection
and to make copies available upon payment of specified fees. Language of SB 1832
would prohibit local agencies from charging fees to copy public records that they are
required to disclose if the disclosure of the records is in the public interest and is not
primarily in the commercial interest of the requester. It would require agency officials to
consider specked information about the requester and the proposed use of the information
in order to determine whether a requester is eligible for a fee waiver under these
provisions.
CITY COUNCIL STAFF REPORT
RE: SIB 1832 (KEHOE)
APRIL 27, 2006
While the City of Palm Desert strives to provide requested public documents in a timely
and efficient manner and in keeping with current law, the cost to the City in staff time,
equipment, and supplies could become cost -prohibitive; therefore, the Legislative Review
Committee recommends that the City Council oppose SB 1832 and direct staff to prepare
a letter stating that position to appropriate legislators for the Mayor's signature.
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PATRICIA SCULLY, CFEE
SEN OR MA EMENT AN LYST
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ACM/COMMUNITY E VICES
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CARLOS L. ORVP-GA
CITY MANAGER
SENATE BILL
Introduced by Senator Kehoe
February 24, 2006
No. 1832
An act to amend Sections 6252 and 6253 of, and to add Section
6253.3 to, the Government Code, relating to public records.
LEGISLATIVE COUNSEL'S DIGEST
SB 1832, as introduced, Kehoe. Public records: fee waiver.
(1) Existing law, the California Public Records Act, requires state
and local agencies to make their records available for public
inspection, unless an exemption from disclosure applies, and to make
copies available upon payment of specified fees.
This bill would provide that a state or local agency shall not charge
a fee for a copy of a public record that it is required to disclose if
disclosure of the record is in the public interest because it is likely to
contribute to public understanding of the operations or activities of the
government and not primarily in the commercial interest of the
requester. It would require agency officials to consider specified
information about the requester, the information requested, and the
proposed use of the information in order to determine whether a
requester is eligible for a fee waiver under these provisions. It also
would require that any denial of a request for a fee waiver be in
writing and set forth the names and titles or positions of each person
responsible for the denial. By imposing new duties on local agency
officials, this bill would impose a state -mandated local program.
(2) 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, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
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SB 1832
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reimbursement for those costs shall be made pursuant to these
statutory provisions.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State -mandated local program: yes.
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The people of the State of California do enact as follows:
SECTION 1. Section 6252 of the Goverment Code is
amended to read:
6252. As used in this chapter, the following words have the
following meanings:
(a) "Commercial interest" means a request intended for a use
or purpose that furthers the commercial, trade, or for profit
interests of a requester or the person on whose beha f a request
is made.
(b) "Local agency" includes a county; city, whether general
law or chartered; city and county; school district; municipal
corporation; district; political subdivision; or any board,
commission or agency thereof; other local public agency; or
entities that are legislative bodies of a local agency pursuant to
subdivisions (c) and (d) of Section 54952.
(b)--
(c) "Member of the public" means any person, except a
member, agent, officer, or employee of a federal, state, or local
agency acting within the scope of his or her membership, agency,
office, or employment.
(d) "Person" includes any natural person, corporation,
partnership, limited liability company, firm, or association.
(e) "Public agency" means any state or local agency.
fei
(� "Public records" includes any writing containing
information relating to the conduct of the public's business
prepared, owned, used, or retained by any state or local agency
regardless of physical form or characteristics. "Public records" in
the custody of, or maintained by, the Governor's office means
any writing prepared on or after January 6, 1975.
(g) "Representative of the news media" means any person
actively gathering information that is about current events or of
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1 current interest to the public for an entity that is organized and
2 operated to publish or broadcast this information to the public.
3 News media include, but are not limited to, television or radio
4 stations broadcasting to the public and publishers of periodicals
5 that make their products available for purchase or subscription
6 by the general public. A freelance journalist is a representative
7 of the new media if he or she can demonstrate a reasonable basis
8 for expecting publication by a news medium, even though not
9 employed by it, or if he or she has a past publication record
10 sufficient to create a reasonable expection of an ability to
11 publish.
12 (4)--
13 (h) "State agency" means every state office, officer,
14 department, division, bureau, board, and commission or other
15 state body or agency, except those agencies provided for in
16, Article IV (except Section 20 thereof) or Article VI of the
17 California Constitution.
18 (g)--
19 (i) "Writing" means any handwriting, typewriting, printing,
20 photostating, photographing, photocopying, transmitting by
21 electronic snail or facsimile, and every other means of recording
22 upon any tangible thing any form of communication or
23 representation, including letters, words, pictures, sounds, or
24 symbols, or combinations thereof, and any record thereby
25 created, regardless of the manner in which the record has been
26 stored.
27 SEC. 2. Section 6253 of the Government Code is amended to
28 read:
29 6253. (a) Public records are open to inspection at all times
30 during the office hours of the state or local agency and every
31 person has a right to inspect any public record, except as
32 hereafter provided. Any reasonably segregable portion of a
33 record shall be available for inspection by any person requesting
34 the record after deletion of the portions that are exempted by law.
35 (b) Except with respect to public records exempt from
36 disclosure by express provisions of law, each state or local
37 agency, upon a request for a copy of records that reasonably
38 describes an identifiable record or records, shall make the records
39 promptly available to any person upon payment of fees covering
40 direct costs of duplication, or a statutory fee if applicable, or
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1 upon a determination that any applicable fee is waived pursuant
2 to Section 6253.3. Upon request, an exact copy shall be provided
3 unless impracticable to do so.
4 (c) Each agency, upon a request for a copy of records, shall,
5 within 10 days from receipt of the request, determine whether the
6 request, in whole or in part, seeks copies of disclosable public
7 records in the possession of the agency and shall promptly notify
8 the person making the request of the determination and the
9 reasons therefor. In unusual circumstances, the time limit
10 prescribed in this section may be extended by written notice by
11 the head of the agency or his or her designee to the person
12 making the request, setting forth the reasons for the extension
13 and the date on which a determination is expected to be
14 dispatched. No notice shall specify a date that would result in an
15 extension for more than 14 days. When the agency dispatches the
16 determination, and if the agency determines that the request
17 seeks disclosable public records, the agency shall state the
18 estimated date and time when the records will be made available.
19 As used in this section, "unusual circumstances" means the
20 following, but only to the extent reasonably necessary to the
21 proper processing of the particular request:
22 (1) The need to search for and collect the requested records
23 from field facilities or other establishments that are separate from
24 the office processing the request.
25 (2) The need to search for, collect, and appropriately examine
26 a voluminous amount of separate and distinct records that are
27 demanded in a single request.
28 (3) The need for consultation, which shall be conducted with
29 all practicable speed, with another agency having substantial
30 interest in the determination of the request or among two or more
31 components of the agency having substantial subject matter
32 interest therein.
33 (4) The need to compile data, to write programming language
34 or a computer program, or. to construct a computer report to
35 extract data.
36 (d) Nothing in this chapter shall be construed to permit an
37 agency to delay or obstruct the inspection or copying of public
38 records. The notification of denial of any request for records
39 required by Section 6255 shall set forth the names and titles or
40 positions of each person responsible for the denial.
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(e) Except as otherwise prohibited by law, a state or local
agency may adopt requirements for itself that allow for faster,
more efficient, or greater access to records than prescribed by the
minimum standards set forth in this chapter.
SEC. 3. Section 6253.3 is added to the Government Code, to
read:
6253.3. (a) A state or local agency shall not charge the
requester a fee for a record that it is required to disclose under
this chapter if disclosure of the record is both of the following:
(1) In the public interest because it is likely to contribute to
public understanding of the operations or activities of the
government.
(2) Not primarily in the commercial interest of the requester.
(b) To determine whether a record is in the public interest
pursuant to paragraph (1) of subdivision (a), a state or local
agency shall consider all of the following:
(1) The subject of the request: whether the subject of the
requested records concerns the operations or activities of
government. The subject of the requested records must concern
identifiable operations or activities of state or local government
with a connection that is direct and clear, not remote.
(2) The informative value of the information to be disclosed:
whether the disclosure is likely to contribute to an understanding
of government operations or activities. The disclosable portions
of the requested records must be meaningfully informative about
government operations or activities in order to be likely to
contribute to an increased public understanding of those
operations or activities.
(3) The contribution to an understanding of the subject by the
public is likely to result from disclosure: whether disclosure of
the requested information will contribute to public
understanding. A requester's expertise in the subject area and
ability and intention to effectively convey information to the
public will be considered. It will be presumed that a
representative of the new media will satisfy this consideration.
(c) To determine whether a record is primarily in the
commercial interest of the requester pursuant to paragraph (2) of
subdivision (a), a state or local agency shall consider both of the
following:
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1 (1) The existence and magnitude of a commercial interest:
2 whether the requester has a commercial interest that would be
3 furthered by the requested disclosure. State and local agencies
4 shall consider any commercial interest of the requester, or of any
5 person on whose behalf the requester may be acting, that would
6 be furthered by the requested disclosure.
7 (2) The primary interest in disclosure: whether any identified
8 commercial interest of the requester is sufficiently large, in
9 comparison with the public interest in disclosure, that disclosure
10 is primarily in the commercial interest of the requester. A fee
11 waiver is justified where the public interest standard is satisfied
12 and that public interest, is greater in magnitude than any
13 speculative commercial interest in disclosure.
14 If an agency has reasonable cause to doubt whether the
15 requester has a commercial interest in the records sought, or
16 where that interest is not clear from the request itself, the agency
17 shall seek additional clarification.
18 (d) A request for a waiver of any fee for a record shall be
19 submitted along with a request for records. If a state or local
20 agency determines that a request for a fee waiver includes
21 insufficient information to justify a waiver, it shall identify what
22 additional information is required and provide the requester an
23 opportunity to supplement the request.
24 (e) Any denial of a request for a fee waiver under this section
25 shall be in writing and set forth the names and titles or positions
26 of each person responsible for the denial.
27 (f) In any action by a requester regarding the waiver of a fee
28 under this section, the court shall determine the matter de novo,
29 provided that the court's review of the matter shall be limited to
30 the record before the agency. A court may award court costs and
31 reasonable attorney's fees to the plaintiff should the plaintiff
32 prevail in litigation filed pursuant to this section.
33 SEC. 4. If the Commission on State Mandates determines that
34 this act contains costs mandated by the state, reimbursement to
35 local agencies and school districts for those costs shall be made
36 pursuant to Part 7 (commencing with Section 17500) of Division
37 4 of Title 2 of the Government Code.
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