RESULTS OVERVIEW: 2011 State Agencies Audit
Introduction:
The object of the California Public Records Act (“CPRA”; Government Code Section 6250 et seq.), originally enacted in 1968, is to ensure the people’s right to know how their state and local governments are functioning. Fashioned after the federal Freedom of Information Act, the CPRA’s intent is made clear in its very first section:
“[T]he Legislature, mindful of the right of individuals to privacy, finds and declares that access to information concerning the conduct of the people’s business is a fundamental right of every person in this state.” GC § 6250.
In addition, the voters amended California’s Constitution in 2004 with the passage of Proposition 59, elevating the public’s right to open government to a constitutionally protected right:
“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.” California Constitution, Article 1, Section 3(b)(1).
The CPRA defines a “public record” as any recording in any form of communication or representation, relating to the conduct of the public’s business that is prepared, owned, used or retained by any governmental agency in the State, regardless of its form or physical characteristics.
Any person, company, corporation, firm, partnership or association has the right to inspect public records during normal business hours or to receive a copy of a record by paying the direct costs of duplication, except when the record is exempted from disclosure by state or federal law.
Governmental agencies are not allowed to delay the inspection of public records and, in all circumstances, must respond to a public records request within 10 calendar days. However, for records known to be disclosable, such as those requested in this audit, the law says access is to be provided “promptly,” and not needlessly delayed for some portion of 10 days. The CPRA emphasizes that nothing “shall be construed to permit an agency to delay or obstruct the inspection or copying of public records.” GC § 6253(b)-(d).
Additionally, the courts have found that an agency may not require a public records request to be in writing. “The California Public Records Act plainly does not require a written request.” Los Angeles Times v. Alameda Corridor Transportation Authority (2001) 88 Cal.App.4th 1381.
Purpose of this Compliance Audit:
Recently,corruption and illegal secrecy in State and local government have been frequent topics of news stories, criminal prosecutions, and civil actions. From the offices of the Secretary of State and the Insurance Commissioner; to the Boards of Supervisors in Los Angeles and San Bernardino counties; to the cities of Carson, South Gate, Compton, Vernon, Inglewood, Bell, Manhattan Beach, and Colton; to the school districts of Orange, Alhambra, Los Angeles, and Chino Valley; to water districts like Three Valleys MWD and San Antonio Water Company; to joint powers agencies such as the Los Angeles Interagency Metropolitan Police Apprehension Crime Task Force; to quasi-governmental non-profits like the Huntington Beach Marketing and Visitors Bureau, the Hollywood Business Improvement District and the Entertainment Industry Development Corporation; secrecy is being used to keep people from knowing what their elected and appointed officials are doing. It has gotten so bad that special divisions of District Attorney Offices have been created solely to combat these problems.
This audit of California’s State governmental agencies, the third of its kind (CalAware’s 2006 State Agency Audits Report), tests how these agencies respond to very simple requests to view and for copies of obviously disclosable and readily accessible
public documents. The thirty-one (31) agencies selected for audit were chosen because Section 6253.4 of the CPRA expressly identifies each by name as being required to perform as follows:
The following state agencies “shall establish written guidelines for accessibility of records. A copy of these guidelines shall be posted in a conspicuous public place at the offices of these bodies, and a copy of the guidelines shall be available upon request free of charge to any person requesting that body’s records”. GC § 6253.4(a).
The CPRA commands: “Public records are open to inspection at all times during the office hours of the state [agency;]” and, guidelines established for the accessibility of records “shall not operate to limit the hours public records are open to inspection.” GC §§ 6253(a) and 6253.4(b).
This open records requirement also aids the people’s ability to insure that their public officials are free from conflicts-of-interest in their decision-making. The Political Reform Act (Government Code Sections 81000-91015) requires most State and local government officials to publicly disclose personal economic interests, and to refrain from decisions where a conflict lies. The Act generally prohibits state and local officials, employees, and candidates from accepting any significant gifts, especially those provided by lobbyists.
The Fair Political Practices Commission (“FPPC”), responsible for enforcement of the Act’s provisions, provides its Form 700 (Statement of Economic Interests) for use by public officials in their annual reporting. The Act makes all Form 700s available for public inspection during the agency’s regular business hours and expressly prohibits the agency from placing any conditions on persons seeking access to the forms, or from requesting any information or identification from those persons:
“Every report and statement filed pursuant to this title is a public record open for public inspection and reproduction during regular business hours … No conditions whatsoever shall be imposed upon persons desiring to inspect or reproduce reports and statements filed under this title, nor shall any information or identification be required of these persons. Copies shall be provided at a charge not to exceed ten cents ($0.10) per page.” GC § 81008(a).
Part 1 of this audit is an in-person oral request to view a Form 700 of one of that agency’s senior executives and to receive a copy of the agency’s “guidelines for accessibility of records.”
Part 2 of this audit will be an e-mail request for a copy of an employment contract or similar document reflecting the annual compensation of a top-ranking employee in that State agency, and the most recent litigation settlement agreement or court order to which that agency is a party.
The CPRA makes every employment contract of a public official or employee open to inspection, without regard to the requester’s reason for wanting that information:
“Every employment contract between a state and local agency and any public official or public employee is a public record which is not subject to the provisions of Sections 6254 and 6255.” GC § 6254.8.
The CPRA “does not allow limitations on access to a public record based upon the purpose for which the record is being requested, if the record is otherwise subject to disclosure.” GC §6257.5.
And the courts have deemed that litigation settlement agreements, entered into by California public agencies, are public records open to inspection:
“[D]ocuments relating to settlement of a private personal injury claim with public funds constitute ‘writings’ containing information regarding ‘the conduct of the public business,’ subject to public inspection and disclosure under the CPRA.” Register Division of Freedom Newspapers, Inc. v. County of Orange, 158 Cal.App.3d 893, 901 (4th Dist., 1984). “We conclude that assurances of confidentiality by the County regarding the settlement agreement are inadequate to transform what was a public record into a private one.” Id. at 909.
Results/Responses:
Over a five-year period, this is the third public records compliance audit performed on these 31 State agencies. The first was January 2006. The results were so miserable (average score of “F”) that Governor Schwarzenegger issued an Executive Order requiring public records retraining for all his executive departments. Immediately after that training, a second, identical audit in August 2006 revealed an average grade of C+, but still five of the agencies received F grades. Acknowledging the adage, “practice makes perfect,” this third audit, requesting the very same records as the previous two, expects to see significant improvement.
Part 1 Results – – Request made in-person to view a Form 700 and receive a copy of the Guidelines:
(a) Despite the passage of five years, mandatory public records training, and two previous audits that focused attention on their records access problems, the most striking discovery was that more than one-third (35%) of the State agencies failed to provide a copy of their own Guidelines for Accessibility of Public Records when requested, and 32% failed to post those Guidelines in the area of their main offices where the Auditor was directed to make his records request; both responsibilities expressly required by the CPRA.
(b) When asking to view the FPPC Form 700 for a top-ranking employee of the agency, 13 of the 31 agencies (42%) could not produce the Form within one hour, and more than one-third (35%) could not produce it within one day, despite the law requiring Form 700s to be available for inspection during regular business hours.
(c) Equally distressing was the number of agencies that placed requirements on the Auditor or requested personal information from him before he could see a copy of the Form 700 or receive a copy of the Guidelines for accessing the agency’s records. Employees at nearly half of the agencies (45%)wanted to know something about the Auditor (his name, who he was working for, or why he wanted to view the record) or placed some other requirement on him before he was allowed to see the Form 700.
Part 2 Results – – Request by e-mail for copies of a Settlement Agreement and Salary Document:
When requested to provide a copy of a document showing the total annual compensation of that state agency’s top-ranking employee, 1 in 4 (26%) could not supply that record within 10 days, with a similar number (29%) unable to provide their most recent settlement or court order within the 10 days.
Comparison with Previous Audits
The average grade in this Audit was C+, precisely the same as the second audit of these same agencies 5 years ago, but significantly better than the F earned in the first audit (CalAware’s 2006 State Agency Audits Report). What is discouraging is that after experiencing the same audit twice before, and receiving required training in-between, there has been no overall improvement.
The Best:
Grade: A+
Of all the State agencies surveyed, General Services, Mental Health, Health Care Services, Managed Health Care, Developmental Services, Coastal Commission, Corporations, and CalTrans proved the best, fulfilling both requests without delay and without placing any requirement on or requesting information from the Auditor. Of note, at General Services the Auditor was aided in his oral request by Kevin Wilson in his very first week in his new position. His response was perfect. CalTrans was a little fortunate in its perfect response, in that security’s initial response was that no public records could be viewed at its offices. But good fortune had the Public Records Officer just happening by. She corrected security and provided the requested records.
Grade: A
Five other agencies were very close behind, suffering small deductions for requesting personal information from the Auditor or providing records after a slight delay. These were Air Resources Board, Environmental Health Hazard Assessment, Industrial Relations, Motor Vehicles, Water Resources Department, and Water Resources Board.
The Worst:
Grade: F-
Several agencies performed miserably. By far, the very worst experience has been with Employment Development Department, which has received an F- in all three audits. In the latest, staff designated to deal with the public, as well as the Executive Director’s Office, were completely ignorant of the requested documents that were specifically required to be immediately available to the public. The stupidity illustrated is rather appalling after three audits and required CPRA training. The Part 2 request for records was submitted via the “Ask EDD” page (https://askedd.edd.ca.gov/asp/frmEDDCOMM.aspx) designated the place to submit records requests electronically. Even though this website returned a reply indicating the request had been received, “Your reference number is # 3900271,” after more than two months there was never a reply from EDD.
CalPERS also performed pitifully. After the Auditor was sent by security to the Legal Office, there he was told he could not walk in and view a Form 700 or the Guidelines for access to records. Legal said he must FAX a written request to 916-795-3659, to which the office said they had 10 days to respond. Then, after acknowledging receipt of the Part 2 e-mail request, the request was forwarded, and forwarded again to Legal, but the Auditor never heard from CalPERS again.
Two departments, Insurance and Correction and Rehabilitation also received grades of F- due to employee ignorance and simply not caring about providing any information to the public.
Grade: F
Department of Justice failed because its security could not understand the clearly defined procedures within DOJ’s posted Guidelines, adamantly telling the Auditorhe had to make a written request. This was emphasized as the Security Sergeant pointed to the posted Guidelines, which actually makes a written request one of the options for requesting public records and says the DOJ “does not require” written requests.
Grade: F+
The Department of Alcohol and Drug Programs has a public information officer who demonstrated an ignorance of public records law by denying the request to view the Form 700 and would not provide a copy of the Department’s Guidelines for access to records. She said a formal written request was required and showed the Auditor how to make that request on-line through the ADP website. The Part 2 e-mail request was handled appropriately by a different ADP employee.
Educational Follow-up
To help these government agencies understand their responsibilities and to aid them in making whatever adjustments may be necessary, each will receive a copy of this 6-page audit overview and conclusions, the 5-page summary of the audit’s results and grading, along with a page showing how that particular agency performed.
In the near future, this Auditor will ask each agency receiving a grade of less than an A what steps it has taken to improve on its CPRA compliance, and to reassure the public of its right of access to that agency’s public records.
