Images-33 PUBLIC INFORMATION — Attorney General Jerry Brown's Department of Justice is sponsoring a bill, opposed by Californians Aware and the California Newspaper Publishers Association (CNPA), to allow courts to order "abusive" or "harassing" requestors to stop requesting using the California Public Records Act.  AB 520, by Assembly Member Wilmer Amina Carter (D-Rialto), is set to be first heard in the Assembly Judiciary Committee (member contact data here) on June 28. 

CNPA's opposition letter, from General Counsel Tom Newton, states:

Dear Assemblywoman Carter:

I regret to inform you the California Newspaper Publishers Association is opposed to your AB 520, which would allow a state or local agency, under the California Public Records Act, to seek a court order limiting a person’s rights of access under the Act.  While we do not doubt that agencies have on occasion been subjected to abusive and harassing requests, we don’t believe the problem is worthy of legislative resolution. 

In fact, public agencies at every level of government have failed to comply with the law by ignoring requests for records, delaying access, wrongfully denying requests and charging fees in excess of those authorized by law.  Every audit performed by Californians Aware, the California First Amendment Coalition, or CNPA member newspapers such as the Contra Costa Times or Stockton Record, has shown abysmal compliance with the law. 

AB 520 would allow a court to look into the heart of a requester to determine if the requester is seeking records for an “improper purpose.”  The Act has long forbid an agency’s inquiry into a requester’s purpose for the records for obvious reasons.  Agencies must never be allowed to determine whether or not to comply with a request based on whether the request is for a use approved by the agency (i.e., a good use).  Courts are no better equipped to decide who should and who should not receive public records based upon the person’s purpose or use of the records (i.e., to affect public policy, perform academic research, newsgathering, anti-corruption, business planning, political, etc.) 

In addition, AB 520 runs counter to the California Supreme Court’s decision in Filarsky v. Superior Court, 28 Cal.4th 419 (2002).  That decision held that a public agency may not sue for a declaration that records are not subject to disclosure.  The court reasoned that these types of reverse public records suits, initiated by public agencies, can be used to pre-empt a citizen’s request for records and force unwilling members of the public into litigation.  Custodians of public records must not be allowed to use the courts when someone has done nothing more than request access to the public’s records, even if the request is perceived as burdensome and annoying.  Public access decisions must be made based on the law’s presumption of access, the Constitution, and the numerous and well-defined exemptions from disclosure.  Public access should never be determined by the whim of a public official, even if that official is a judge. 

For these reasons, CNPA respectfully opposes AB 520.

CalAware's opposition letter, from General Counsel Terry Francke, states:

Dear Assembly Member Carter,

Californians Aware opposes AB 520, which in the words of Legislative Counsel,

would, whenever it is made to appear by verified petition, authorize a superior court to issue a protective order limiting the number and scope of requests a requestor may make under the act. The bill would require the court, in issuing the order, to determine that the requestor has sought records under the act for an improper purpose, including, but not limited to, the harassment of a public agency or its employees.

Quite apart from the bill’s utter subversion of the principles underlying the California Public Records Act—as noted in the recent opposition letter of the California Newspaper Publishers Association—we are frankly surprised that the Attorney General is sponsoring a measure so certain to be frustrated for both legal and practical reasons.

The legal problem—even if the bill were to pass in its current form or anything like it—is that the first requestor named in such a superior court action would likely interpose a motion to strike the petition pursuant to Code of Civil Procedure Section 425.16—characterizing it as a SLAPP suit, namely “a cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or California Constitution in connection with a public issue.” A request for public records is inherently such a covered act. 

The public agency petitioning for the relief proposed by AB 520 would then be required to show forthwith why the petition was not an unconstitutional prior restraint under both the First Amendment to the United States Constitution and Article 1, Section 3 of the California Constitution, amended by Proposition 59 of 2004, which declares that “the people have the right of access to information concerning the conduct of the people's business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.”

If the petitioning agency were unable to convince the court that it would likely prevail on the merits in the face of such constitutional obstacles, the court would dismiss the case and order the agency to pay the attorney’s fees and costs of the defendant requestor.

The practical problem insurmountable by any conceivable amendment to this bill is that even a requestor who became subject to a protective order under the AB 520 procedure could simply have further requests made by family members, friends, or anyone else willing to put their name to the request letter, out of either sympathy with the requestor’s cause or for a few dollars’ inducement. 

We are not aware of what behavior, by which requestors, is being cited as a basis for this legislation, and we concede that the California Public Records Act is open to so
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maginable uses that are hard to view as responsible.  But courts have been known to apply limiting principles in response to particular requests they find to be beyond the statutory imperative; see, for example, the California Supreme Court’s use of an “implied rule of reason” enabling public agencies to formulate regulations necessary to protect the safety of the records against theft, mutilation, or accidental damage, to prevent inspection from interfering with the orderly function of the agency's office and its employees, and generally to avoid chaos in record archives. Bruce v. Gregory, 65 Cal.2d 666 (1967). 

Perhaps the Attorney General is aware of a case in which a court has found an agency obliged to satisfy what it argued to be an abusive public records request, but we are not.  This appears to be an instance of asking for a legislative solution to a problem never defined by judicial decision.

But even were there such case experience, the ultimate principle arguing against AB 520 is that like the right of speech itself, which under California law has exactly the same degree of constitutional protection, the right to obtain information found in public records is so fundamental to informed democracy that certain expressions of that right, while they may be deplored as an excess of license, must be tolerated as a cost of liberty.  Not every person’s request need or should be fulfilled, but no person should be taken to court for asking.