Updated August 28, 2019

OPEN MEETINGS

Brown Act

Local bodies’ majority participation in social media •  AB 992 (Mullin)

WATCH  •  Assembly Member Cooper, Democrat, Elk Grove  •  May 1

Currently, the Ralph M. Brown Act generally requires that the meetings of legislative bodies of local agencies be conducted openly. The Act defines “meeting” for purposes of its provisions and expressly excludes certain activities from those provisions.

This bill would provide that the Act does not apply to the posting, commenting, “liking,” interaction with, or participation in, internet-based social media platforms that are ephemeral, live, or static, by a majority of the members of a legislative body, provided that a majority of the members do not discuss among themselves business of a specific nature that is within the subject matter jurisdiction of the legislative body of the local agency. The bill includes the following definitions:

  • “Ephemeral” means sharing a video, photo, or other content that is temporary in nature, including, but not limited to, Snapchat Stories, Facebook Stories, or Instagram Stories.
  • “Live” means a video or commenting post that is synchronous and happens live, including, but not limited to, Reddit Ask Me Anything (AMA) or Facebook Live.
  • “Static” means a post in the form of a video, photo, or text that is viewable by members of the public, including, but not limited to, a Twitter status update, YouTube video, Facebook post, or Instagram post.

Charter schools subject to open government laws •  SB 126 (Leyva)

WATCH  •  Signed by Governor  •  March 5

Currently, the Brown Act applies to local agency legislative bodies, local agencies are subject to the California Public Records Act, and consequential local officials are subject to the financial disclosure requirements of the Political Reform Act.

This bill expressly states that charter schools and entities managing charter schools are subject to the Ralph M. Brown Act, unless the charter school is operated by an entity governed by the Bagley-Keene Open Meeting Act, in which case the charter school would be subject to that statute. The bill also expressly states that charter schools and entities managing charter schools are subject to the California Public Records Act and the Political Reform Act of 1974, including financial disclosure requirements.

Bagley-Keene Open Meeting Act

Application to official and funded two-member committees •  SB 53 (Wilk)

WATCH  •  Assembly Appropriations Committee  •  August 28

Currently, local bodies’ standing committees are subject to the same Brown Act openness requirements as the full body—even those comprising only two members. But according to the author, too many state bodies under the Bagley-Keene Act take the position that meetings of two-member committees of their boards and commissions are not subject to the Act when they comprise less than a quorum of the body, which by definition they do.

This bill would provide that the Act’s rules apply to a board, commission, committee, or similar multimember body on which a member of a state body serves in his or her official capacity as a representative of that body and that is supported, in whole or in part, by funds provided by the body, whether the body is organized and operated by the state body or by a private corporation.

PUBLIC INFORMATION 

Access to records 

Limits on Trade Secrets Exemption •  SB 749 (Durazo)

WATCH  •  Assembly Appropriations Committee  •  August 28

Currently, The California Public Records Act requires state and local agencies to make their records available for public inspection, unless an exemption from disclosure applies. Existing law provides that nothing in the act requires the disclosure of corporate proprietary information including trade secrets, among other things.

This bill would provide that specified records of a private industry employer that are prepared, owned, used, or retained by a public agency are not trade secrets and are public records, including certain records relating to employment terms and conditions of employees working for a private industry employer pursuant to a contract with a public agency, records of compliance with local, state, or federal domestic content requirements, and records of a private industry employer’s compliance with job creation, job quality, or job retention obligations contained in a contract or agreement with a state or local agency.

Presumed access to public utilities’ filings with CPUC • AB 1323 (Stone)

WATCH  •  Assembly Committee on Utilities and Energy  •  April 8

Currently, The Public Utilities Act prohibits the commission or an officer or employee of the commission from disclosing any information furnished to the commission by a public utility, a subsidiary, an affiliate, or a corporation holding a controlling interest in a public utility, unless the information is specifically required to be open to public inspection under the act, except on order of the commission or a commissioner in the course of a hearing or proceeding. Existing law makes a disclosure of nonpublic information by a present or former officer or employee of the commission a misdemeanor.

This bill would instead require the information to be open to public inspection unless federal or state law or an order of the commission based on a specified finding requires the information to be closed to inspection, or the withholding of that information is ordered by the commission, a commissioner, or an administrative law judge in the course of a hearing or proceeding. The bill would authorize a public utility, a subsidiary or affiliate of a public utility, or a corporation holding a controlling interest in a public utility providing information to request the commission to withhold from public disclosure all or a portion of the information provided.The bill would establish mechanisms for resolving claims of confidentiality in the event the commission does not agree with one or more claims of confidentiality. The bill would make it a misdemeanor for a present or former officer or employee of the commission to divulge any information that is exempt from public disclosure, as determined by the commission.

Presumed confidentiality of competency hearing records • SB 557 (Jones)

WATCH  •  Passed Senate  •  August 22

Current law prohibits a person from being tried or adjudged to punishment while that person is mentally incompetent. Existing law establishes a process by which a defendant’s mental competency is evaluated, which includes requiring the court to appoint a psychiatrist or licensed psychologist, and any other expert whom the court may deem appropriate, to examine the defendant. Existing law requires a defendant found mentally incompetent to stand trial to undergo evaluation by the community program director, the regional center director, or the county mental health director, and requires the evaluator to make written recommendations to the court, prior to the court ordering the defendant to undergo outpatient treatment or be committed to the state hospital, a developmental center, a residential facility, or any other treatment facility. If the director who evaluates the defendant determines that the defendant has regained mental competence, existing law requires the director to immediately certify that fact to the court by filing a certificate of restoration with the court.

This bill would make all documents submitted to a court pursuant to this process presumptively confidential, except as otherwise provided by law. The bill would require the documents to be retained in the confidential portion of the court’s file, and would require counsel for the defendant and the prosecution to maintain the documents as confidential. The bill would authorize counsel for the defendant and the prosecution to inspect, copy, or utilize the documents, and any information contained in the documents, without an order from the court for specified purposes, including the safety of the public. The bill would require a motion, application, or petition to access the documents to be decided according to specified court rules.

Information concerning deaths in civil detention facilities • SB 622 (Durazo)

SUPPORT  •  Senate Judiciary  •  April 23

Currently California law prohibits a local agency from entering into a contract with the federal government, any federal agency, or a private corporation to house or hold in a locked detention facility noncitizens for purposes of civil immigration custody. Existing law prohibits such agencies from approving or signing a deed, instrument, or other document related to a conveyance of land or issuing a permit for the building or reuse of existing buildings by a private corporation, contractor, or vendor to house or detain noncitizens for the purposes of civil immigration proceedings unless the city, county, city and county, or public agency has provided specified notice to the public and solicited and heard public comments regarding the action.

This bill would require the custodian of a civil detention facility, as defined, in which a death has occurred to notify the Bureau of Investigation within the Department of Justice immediately, but in any case, no more than 2 hours after the individual is pronounced dead. The bill would require the Department of Justice to assume jurisdiction over the investigation of the death. The bill would require the Bureau of Investigation to immediately open an investigation into the cause and circumstances of the death, including an examination and determination of whether the facility was in compliance with all applicable standards and contractual obligations governing the individual’s civil detention. The bill would also authorize the department to investigate the death of any individual that occurs within 90 days of the individual’s release from a civil detention facility. The bill would require the custodian of the civil detention facility to allow the Bureau of Investigation immediate access to the facility, including all premises where the individual was held.

The bill would specify that the bureau shall have, in addition to any other access and investigative powers afforded to it by any other law, additional authority in connection with an investigation of death or significant threat to the life or safety of an individual who is or was in civil detention in this state including reasonable, unaccompanied access to the facility in order to, among other things, inspect, view, and photograph all areas that are used by, or are accessible to, detainees in the facility and authority to pursue administrative, legal, and other appropriate remedies or approaches to ensure the protection of the rights of individuals who are or were in civil detention.

The bill would require the Bureau of Investigation and the Department of Justice to make reports of their findings, as specified. The bill would also require the civil detention facility to submit a formal response to the Department of Justice. The bill would require the Department of Justice to make that response publicly available. The bill would also specify that all records prepared, owned, used, or retained by the civil detention facility shall be subject to the California Public Records Act.

Information concerning government academic research •  AB 700 (Friedman)

OPPOSE  •  Assembly Appropriations Committee  •  August 28

Currently the California Public Records Act requires a state or local agency to make public records available for inspection, unless the record is exempt from disclosure.

This bill would exempt from disclosure specified information relating to a researcher or their research at a California “public postsecondary educational institution,” including but not limited to

  • “Research methods that have not been published.
  • “Preliminary drafts of documents intended for publication.
  • “Unpublished data.
  • “Unfunded grant applications.
  • “Correspondence, including, but not limited to, electronic correspondence, from professional peers relating to research, whether or not provided through a formal peer review process or whether relevant publication has occurred.
  • “Trade secrets.
  • “Information that identifies or permits identification of human research subjects.
  • “Interview and ethnographic observation notes, interview transcripts, audio or video recordings, and photographs.
  • “Calendars and appointment logs.

In addition, “The enumeration of categorical exemptions for research records identified in this (list) does not affect a researcher’s ability to assert, on a case-by-case basis, that additional records in the researcher’s possession are exempt from disclosure pursuant to subdivision (a) of Section 6255”.

  • “Researcher” is defined as “any person who engages in research at, or under contract or in affiliation with, a public postsecondary educational institution.”
  • “Research” is not defined.

Withholding of crime victims’, witnesses’ names •  AB 941 (Cunningham)

WATCH •  Assembly Appropriations Committee  •  August 28

Currently the California Public Records Act allows victims of specified stigmatizing crimes to request that their names be withheld from any public records request, and that request must be complied with except under specified circumstances.

This bill would require law enforcement agencies to inform victims of or witnesses to certain gang-related offenses that their name will be disclosed unless it determines disclosure would endanger their safety, would provide that they may provide evidence to the law enforcement agency that disclosure of their name would endanger their safety, and would authorize a law enforcement agency to consider that when making the determination.

Right to photograph public records • AB 1819 (Assembly Judiciary Committee)

SUPPORT •  Senate Appropriations Committee  •  August 27

Currently any person has the presumed right to inspect or examine a public record, or to obtain an agency-supplied copy of it, for which a fee might be required.

This bill would grant the requester the right to use his or her own equipment, without charge, to photograph or otherwise copy or reproduce any record upon inspection, unless the means of copy or reproduction would damage the record.

Enforcement of access rights

California Public Records Act ombudsman  •  AB 289 (Fong)

WATCH  •  Assembly Judiciary Committee  •  July 3

Currently the California State Auditor’s Office, which is independent of the executive branch and legislative control, is responsible to examine and report annually upon the financial statements prepared by the executive branch. Existing law establishes, within the State Treasury, the State Audit Fund, which is a continuously appropriated fund, for the expenses of the California State Auditor.

This bill would establish, within the California State Auditor’s Office, the California Public Records Act Ombudsperson. The bill would require the California State Auditor to appoint the ombudsperson subject to certain requirements. The bill would require the ombudsperson to receive and investigate requests for review, as defined, determine whether the denials of original requests, as defined, complied with the California Public Records Act, and issue written opinions of its determination, as provided.

The bill would also:

  • require the ombudsperson to create a process to that effect, and would authorize a member of the public to submit a request for review to the ombudsperson consistent with that process.
  • require the ombudsperson, within 30 days from receipt of a request for review, to make a determination, as provided, and would require the ombudsperson to require the state agency to provide the public record if the ombudsperson determines that it was improperly denied.
  • authorize the ombudsperson to require any state agency determined to have improperly denied a request to reimburse the ombudsperson for its costs to investigate the request for review.
  • require the ombudsperson to report to the Legislature, on or before January 1, 2021, and annually thereafter, on, among other things, the number of requests for review the ombudsperson has received in the prior year.

Public Records Act lawsuits to obtain access; cost-shifting and rejected offers

WATCH  •  Assembly Appropriations Committee  •  August 28

Currently, in a civil action to be resolved by trial or arbitration, authorizes a party to serve an offer in writing on any other party to the action to allow judgment to be taken or an award to be entered in accordance with the terms and conditions stated at the time. Existing law shifts specified post-offer costs to a plaintiff who does not accept a defendant’s offer if the plaintiff fails to obtain a more favorable judgment or award. Existing law also authorizes a court or arbitrator to order a party who does not accept the opposing party’s offer and fails to obtain a more favorable judgment or award to cover the post-offer costs for the services of expert witnesses, as specified. Existing law exempts certain actions from those provisions, including any labor arbitration filed pursuant to a memorandum of understanding under the Ralph C. Dills Act.

This bill would also exempt from those provisions any action to enforce the California Public Records Act.

Records management

State agency records management coordinator • AB 469 (Petrie-Norris)

WATCH  •  Senate Appropriations Committee  •  August 28

Currently, the State Records Management Act requires the Secretary of State to establish and administer a records management program that will apply efficient and economical management methods to the creation, utilization, maintenance, retention, preservation, and disposal of state records. The act requires the Secretary of State, as part of those duties, to obtain from agencies the reports required for administration of the records management program.

This bill would require the Secretary of State to obtain those reports from agencies on a biennial basis, and would require the Secretary of State to report statewide compliance with the act to the Department of Finance at least every 2 years.

Local agency audio and video recordings • AB 510 (Cooley)

OPPOSE  •  Assembly Local Government Committee  •  Not set for hearing

Currently, the head of a department of a county or city, or the head of a special district may destroy recordings of routine video monitoring after one year with the approval of the legislative body and the written consent of the agency attorney. Also, the head of a department of a county or city, or the head of a special district may destroy recordings of telephone and radio communications after 100 days if that person receives approval from the legislative body and the written consent of the agency attorney.

This bill would exempt those officials from those recording retention requirements if their county, city, or special district adopts a records retention policy governing recordings of routine video monitoring and recordings of telephone and radio communications.

State and local agency retention of email • AB 1184 (Gloria)

SUPPORT  •  Senate Appropriations Committee  •  August 28

Currently, cities, counties, and special districts may destroy or dispose of duplicate records that are less than two years old when they are no longer required by the city, county, or special district, as specified.

This bill would, notwithstanding any other law, require public agencies to retain and preserve records transmitted by electronic mail for a period of at least two years.

Mandated disclosure

Economic development incentives • AB 485 (Medina)

WATCH  •  Passed Senate August 19

Currently, local agencies are required to provide specified information to the public before approving an economic development subsidy within its jurisdiction, and to hold hearings and report on those subsidies. Existing law defines “economic development subsidy” for these purposes to mean any expenditure of public funds or loss of revenue to a local agency in the amount of $100,000 or more, for the purpose of stimulating economic development within the jurisdiction of a local agency.

This bill would similarly require local agencies to provide specified information to the public before approving an economic development subsidy for a warehouse distribution center and to hold hearings and report on those subsidies. Agencies would be required to submit a report to the Governor’s Office of Business and Economic Development providing specified information which would be disclosable on its internet website. The bill would prohibit a local agency from signing a nondisclosure agreement regarding a warehouse distribution center as part of negotiations or in the contract for any economic development subsidy.

Initiative, referendum and recall petitions; Top Funders • SB 47 (Allen)

WATCH  •  Assembly Floor  •  August 28

Currently, an initiative petition must contain specified language advising the public of its right to determine whether the person circulating the petition is a paid signature gatherer or a volunteer. Existing law prescribes other requirements regarding the form, content, and presentation of initiative and referendum petitions.

This bill would require, for a state or local initiative, referendum, or recall petition that requires voter signatures and for which the circulation is paid for by a committee, that an Official Top Funders disclosure be made, either on the petition or on a separate sheet, that identifies the name of the committee, any top contributors, as defined, and the month and year during which the Official Top Funders disclosure is valid, among other things.

The bill would require the committee to create an Official Top Funders sheet meeting certain requirements and would authorize the committee to create a page on an Internet Web site that includes a link to the most recent Official Top Funders sheet and a link to the full text of the measure.

The bill would require the committee to submit the Official Top Funders sheet and any updates to the Secretary of State, who would be required to post that statement on the Secretary of State’s Internet Web site along with the previous versions the committee submitted.

The bill would amend existing provisions to make certain misrepresentations with regard to the Official Top Funders disclosures a crime.

WHISTLEBLOWER PROTECTION

For state and local government contract patients rights advocates  •  AB 333 (Eggman)

WATCH  •  Senate Appropriations Committee •  August 28

Existing law relating to whistleblower protection prohibits an employer, as defined, or any person acting on behalf of the employer, as defined, from, among other things, preventing an employee from, or retaliating against an employee for, providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of a law, regardless of whether disclosing the information is part of the employee’s job duties. A violation of these provisions is a crime.

Existing law relating to mental health advocacy requires each local mental health director to appoint, or contract for the services of, one or more county patients’ rights advocates to perform prescribed duties. Existing law prohibits the knowing obstruction of a county patients’ rights advocate in the performance of the advocate’s duties.

This bill would extend the whistleblower protections afforded to employees to county patients’ rights advocates under contract, as independent contractors or employees of a contracted organization, to provide services relating to mental health advocacy. The bill would apply prohibitions against retaliation by an employer to a local contracting agency under these provisions. The bill would establish a private right of action to enforce the rights and protections afforded to county patients’ rights advocates and would provide that a violation does not require an administrative investigation by the Department of Industrial Relations.

For state employees confiding in the Legislature • AB 1200 (Patterson) 

WATCH  •  Assembly Appropriations Committee  •  August 28

Currently, the Whistleblower Protection Act, prohibits a state or local governmental employee from interfering with the right of a person to disclose an improper governmental activity, as defined, to an investigating committee of the Legislature. The Whistleblower Protection Act defines other terms for its purposes, including defining “employee” to mean any individual appointed by the Governor or employed or holding office in a state agency, including the California State University and the University of California, defined public entities, or any agency of local government.

This bill would authorize a legislative investigative committee to investigate and report on improper governmental activities or to refer the improper governmental activity to the State Auditor for investigation pursuant to the California Whistleblower Protection Act.

The bill would also:

  • authorize the committee to prepare and send copies of investigative reports to an employee’s appointing power if it finds that the employee may have participated in improper governmental activities.
  • authorize a committee to request additional information from a person submitting an allegation, as specified.
  • prescribe various requirements for maintaining the confidentiality of people providing information in confidence and information obtained on investigation.
  • authorize a legislative investigative committee to request assistance from a state department, agency, or employee in evaluating an allegation or conducting any investigation of an improper governmental activity and would generally require that such assistance be provided.

For employees of the Legislature • AB 772 (Melendez)

Never assigned to committee

Currently the Legislative Open Records Act authorizes any person to inspect legislative records, subject to specified exemptions.

This bill would make available to the public under the Act certain records regarding harassment, discrimination, or other misconduct complaints made against a Member of the Legislature or a high-level employee, defined as “a current or former employee of the Legislature who, during employment, had the authority or responsibility to supervise or to command serious attention to the person’s recommendations to hire and fire other employees of the Legislature,” if 

  • the complaint is found to be true, or
  • discipline is imposed as a result of the complaint, or
  • there is reasonable cause to believe that the complaint is well-founded.

The bill would authorize redaction of certain information about the accuser, the person who made the complaint, if different than the accuser, and witnesses.

FREE PRESS

“Deepfake” Recordings

Civil liability for publication of photoshop defamation •  AB 602 (Berman)

WATCH  •  Senate Appropriations Committee  •  August 28

Existing law creates a private right of action against a person who intentionally distributes a photograph or recorded image of another that exposes the intimate body parts of that person or of a person engaged in a sexual act without the person’s consent if specified conditions are met.

This bill would provide that a depicted individual who suffers harm resulting from the intentional disclosure of sexually explicit material without their consent has a cause of action against a person who creates and discloses the sexually explicit material if the person knew or reasonably should have known the depicted individual did not consent, and against a person who discloses, but does not create, the sexually explicit material if the person knew the depicted individual did not consent.

The bill would exclude from liability the disclosure of sexually explicit material

  • in the course of reporting unlawful activity or in the course of a legal proceeding,
  • in the course of exercising one’s law enforcement duties;
  • in relation to a matter of legitimate public concern (which is not created by the fact that the depicted person is a public concern);
  • in a work of political or newsworthy value, or similar work.
  • for the purposes of commentary or criticism or the disclosure is otherwise protected by the California Constitution or the United States Constitution.

Publication of sexually explicit photoshop • SB 564 (Leyva)

WATCH  •  Senate Appropriations Committee  •  May 2

Criminal offense of sexually explicit photoshop defamation • AB 1280 (Grayson)

WATCH  •  Senate Public Safety Committee  •  April 23

Currently, California law creates a civil cause of action for using the name, voice, signature, photograph, or likeness of another person, without their consent, in any manner, for the purpose of advertising, selling, or soliciting goods or services. Existing law also creates a civil cause of action for capturing or attempting to capture, in a manner that is offensive to a reasonable person, any type of image or recording of a person engaging in a private, personal, or familial activity. Existing law prohibits the distribution of an intimate image, as described, of an identifiable person that was taken under circumstances in which the person agreed or understood that the image was to remain private.

This bill would define a “deepfake” as a recording that has been created or altered in a manner that it falsely appears to a reasonable person to be an authentic record of the actual speech or conduct of the individual depicted in the recording. The bill would criminally prohibit a person from creating or distributing, without the depicted person’s consent, a deepfake that depicts a person engaging in sexual conduct. The bill would also criminally prohibit a person from creating or distributing, without the depicted person’s consent, a deepfake with the intent that the deepfake coerce or deceive any voter into voting for or against a candidate or measure in an election that is occurring within 60 days. The bill would appropriate $25,000,000 from the General Fund to the University of California to fund research to identify and combat the inappropriate use of deepfake technology.

News Gathering

Press right to monitor law enforcement scanner traffic • AB 1555 (Gloria)

SUPPORT •  Assembly Governmental Organization  •  April 24

Currently, California law authorizes specified law enforcement agencies to close an area that is a menace to the public health or safety due to a calamity including a flood, storm, fire, earthquake, explosion, accident, avalanche, or other disaster to any and all persons not authorized to enter or remain within the enclosed area. Existing law provides an exception for a duly authorized representative of any news service, newspaper, or radio or television station or network.

This bill would require a law enforcement agency that operates encrypted police radio communications, or a joint powers authority that operates encrypted police radio communications on behalf of a law enforcement agency, to provide access to the encrypted communications to a duly authorized representative of any news service, newspaper, or radio or television station or network, upon request.