thumb Legislature Moves to Neuter the Public Records ActLet everyone you know who cares that their right to a prompt and informative response to a request to copy or even see public records of local government agencies is being switched off indefinitely by the Legislature, without a single public hearing debate. With the relevant trailer bill amendments in print today (SB 71 and AB 76) which will go into immediate effect with the budget, it’s clear that the California Public Records Act (CPRA) mandate suspensions are far worse than had been anticipated.  If they go into effect, local agencies including counties, cities, educational and special districts and others will no longer have the legally enforceable obligation to:

  • assist requesters to frame and direct their written requests in effective ways;
  • provide electronic records in a format specified by the requester, even if the agency can do so without special cost;
  • provide a determination notice within 10 days as to what if any information will be released;
  • provide a notice within 10 days that up to an additional 14 days will be needed to make the determination, and what justifies the added delay;
  • provide any written response to the requester at all, even if the request was in writing, including a written statement of the legal basis for withholding information.

These CPRA requirements are still encouraged in the bill as “best practices,” and agencies are required to state orally (but not in writing) at their first public meeting of the calendar year beginning in 2014, any intention not to observe these obligations.  But failing to make that statement does not prevent the agency from changing its mind, and in fact an affirmative commitment to continue would not be enforceable in court.

This blog stated in back in February, when the proposed suspensions were more limited, why as a policy matter they are completely bogus, even compared with the previous Brown Act suspensions, which were actually based on some kind of experience.

The purpose of suspending mandates, as shown with last year’s unplugging of certain open meeting law requirements, is supposedly to keep the state from having to pay unaffordable local government claims for the cost of performing extra services added to the law in the last few decades.

In the case of the Brown Act, such documented reimbursement claims accumulated over the years to constitute multiple millions of dollars of obligations from the state to cities, counties and districts. But unlike the Brown Act claim drain, there is no huge and continuing mountain of mandate reimbursement demands under the Public Records Act.  In fact the Commission on State Mandates (CSM) only approved the CPRA requirements for state reimbursement in May 2011, and the Legislative Analyst’s Office (LAO) concedes, “As the CSM has yet to issue a statewide cost estimate, the annual state cost of funding the CPRA mandate is uncertain.”

But nevertheless, the LAO insists, “given the breadth of activities required by the CPRA mandate and the number of local governments affected, we estimate that annual state costs could reach the tens of millions of dollars”

In 10 years, maybe, if never paid.

Otherwise, the estimate is wildly conjectural. The costly Brown Act mandates such as meeting agenda composition and posting became costly simply because they were automatically triggered by every meeting, month after month, of every one of the thousands of local government bodies in the state. They understandably accumulated very rapidly, like the animated brooms propagating around Mickey Mouse in the Sorcerer’s Apprentice sequence of Fantasia.

In contrast, the targeted CPRA mandates are triggered only upon specific requests.The problem is that while the majority of local agencies that already do their best to get back to the requester with a determination within 10 days would probably continue to do so without the mandate, and needing no “best practices” preachments from Sacramento, there are some others that already consider servicing CPRA requests a low priority if not a nuisance.  If they took advantage of the mandate suspension to adopt a “when we get around to it” and hide-the-ball standard, nothing could compel them to do better—not even a lawsuit.

Moreover, this exploitation of the suspension would probably happen very quietly.  Again in contrast with the Brown Act suspension last year, in that episode almost no local agencies took advantage to go dark because to stop posting agendas would have been a conspicuous and politically damaging departure from public expectations, whereas only the CPRA requester would notice if the agency stopped being as responsive or helpful as the law previously required. In a relatively small but persistent percentage of instances brought to CalAware’s attention, the public records request never gets a response of any kind after months of waiting.  Those agencies are the ones who look forward to the proposed suspensions.

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.  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.  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 Prop 59 clause in the bills:

The interest being protected is the strong interest of the Legislature in allowing, to the extent possible, local agencies to control the manner in which they perform their public duties, including, but not limited to, the manner in which they comply with the spirit and purpose of the California Public Records Act.