An unsigned single-sheet list of “talking points” attributed to California Senate President pro Tempore Darrell Steinberg is circulating just below the public surface, in response to a wave of unprecedented criticism of the Legislature in the formal press and social media for having “gutted” or “eviscerated” or (our term) “neutered” the California Public Records Act in the recently passed twin trailer bills, AB 76 and SB 71.
If you’re new to this development, the short explanation is that to realize the earlier approved state budget, a number of changes in the law have been and will be made by trailer legislation. These changes may have been remarked in earlier budget subcommittee hearings scattered over the past few months, but many if not most never caught the attention of either news or social media—and some of those suspending Public Records Act requirements were simply never discussed in public until they showed up in these bills last Wednesday, to be passed without further discussion on Friday.
The requirements that lawmakers (the Democrat majority, that is) decided to downgrade from legally enforceable mandates to optional “best practices” all have to do with how local government agencies are to respond to citizens’ requests to get a copy of, or even just look at, public records. If the Governor signs these bills into law, local agencies will have the option to no longer:
- Provide a response to a requester within 10 days (extendable by 14 more days in unusual circumstances), informing him or her which information if any will be provided, and which if any will be withheld.
- Provide the notice in writing if the request was made in writing.
- Provide a specific citation to the law(s) permitting the agency to deny an access request.
- Provide practical suggestions to the citizen, to the extent possible, to help him or her improve an unclear or otherwise less effective request.
- Provide requesters for computer records or digital data the information in electronic form at all, or if in electronic form, in the format specified by the requester, even if the agency can produce it in that format. In other words, for example, responses to requests for email discussions on a topic can be confined to either paper records or unsearchable electronic documents.
These requirements were added to the Public Records Act recently enough that if a local agency can document the cost of compliance it can bill the state for reimbursement. The Legislative Analyst’s Office, in an untypical flight of the purest speculation rather than factual analysis, estimated that over time the state would be saddled with tens of millions of dollars in debt triggered by such nickel and dime claims, and that provided the theoretical basis for solving the problem by suspending the mandates driving these costs. No more mandates to comply, no more costs of compliance to pay for.
The Steinberg talking points read as follows:
- The Public Records Act has not been gutted because I would not support such a measure. Records are still accessible to the public.
- The Governor’s proposal ends a mandate where the state is on the hook for something that local governments should be doing as a matter of course: assisting the public in seeking public records.
- Why is the State’s General Fund responsible for paying a local agency to do what we all know is a good and best public practice?
- If locally-elected officials really need a fiscal incentive when it comes to assisting the public then it is right and democratic that local government is held locally accountable.
- Locally-elected and locally-accountable officials will have to declare on the record whether or not they will continue assisting the public in their search for records, and be held locally-accountable for that decision.
Whether or not these words reflect the Senator’s views, it’s no secret that points 2, 3, and 4 express commonly held views in both houses and both caucuses in the Legislature: mandate reimbursement claims for the processing of basic open government safeguards is a racket. See, for example, the very similar comments of Senator Mark Leno, chair of the Senate Budget Committee that processed the mandate suspensions. That view led lawmakers to insert into Proposition 30, Governor Brown’s revenue measure approved by voters last November, an amendment to the state constitution ending the ability of local government agencies to bill the state for meeting agenda preparation and indeed any other mandate in the Brown Act, existing or future. If the Governor does not, as now widely requested, use his authority to end the Public Records Act mandate suspensions in the trailer bills, then going to the electorate once again to take that Act out of the reimbursement racket as well should be Plan B. (Meanwhile, of course, there’s likely to be a lawsuit to invalidate these trailer bills as unconstitutional, but even if successful, such litigation would solve only the recent problem—not prevent repeat suspension attempts.)
Plan B, the permanent solution, would not be accomplished until the June primary next year, but it would be relatively simple. Senator Steinberg and like-minded lawmakers could introduce and pass a Senate Constitutional Amendment (SCA) placing on the ballot for voter approval (or rejection) a proposal to end the ability of local government agencies to claim reimbursement from the state for the costs of compliance with the Public Records Act. In compensation, a separate bill could amend the Act to permit higher charges for providing copies of records to be used solely for private commercial purposes rather than sharing the information with the public—in media reports, public interest research or academic studies, for example. After all, both state and local agencies say that it’s those industrial “data miners” that add significantly to government costs with no corresponding public benefit.
Although an SCA (or its Assembly equivalent) needs two thirds of both the Assembly and the Senate to pass, the idea should be popular enough to get wide bipartisan support and even co-authorship. And the Governor cannot veto such legislation.
So the question comes down to: Does Senator Steinberg have what it takes to act on these convictions and lend his leadership to seeing that this controversy is put to rest for good, trusting the people themselves to decide if doing the right thing should be repeatedly declared to be unaffordable by one or the other level of California government?