A bill moving quickly through the Assembly would revive an optional remedy for wrongfully denied access to California state agencies’ records—administrative review and determination rather than litigation—that was first pursued in legislation sponsored by Californians Aware 13 years ago, but vetoed by a governor concerned about its impact on his office.

AB 289 by Assembly Member Vince Fong (R-Bakersfield) would establish, within the California State Auditor’s Office, the California Public Records Act (CPRA) Ombudsperson, and would require the Auditor to appoint that official. The bill would require the ombudsperson to receive and investigate requests for review from the public who had been denied access to agency records, determine whether the denials complied with the CPRA, and issue written opinions of its determination, to be posted on the Internet.

The bill would require the ombudsperson, within 30 days from receipt of a request for review, to make its determination, and would require the ombudsperson to require the state agency to provide the public record if determined that it was improperly denied. Any state agency determined to have improperly denied a request would be required to reimburse the ombudsperson for its costs to investigate the request. The bill would require the ombudsperson to report to the legislature, on or before January 1, 2021, and annually thereafter, on the number of requests for review the ombudsperson had received in the prior year.

The bill would allow the ombudsperson “to provide written information, guidance, and advice to both public agencies and members of the public regarding the California Public Records Act, including by posting such information, guidance, and advice on its internet website.”  Annual reports to the legislature would be required to include:

The number of requests to review received and the number of determinations of impropely denied access;
“Any proposals, both legislative and administrative, that would allow the ombudsperson to function more independently and provide more transparency to the records of public agencies;” and
The amounts of reimbursements sought and obtained from state agencies for the cost of investigating requests for review.
The bill appears to be modeled on AB 2927 of 2006 by then Assembly Member Mark Leno (D-San Francisco), which created a similar review and determination authority, but assigned the role to the attorney general. That fact earned the bill a veto from Governor Arnold Schwarzenegger despite its passage by the legislature without a single No vote, because the governor felt that the attorney general, who acted as legal counsel and defender for most executive branch agencies, should not be empowered to question his administration’s CPRA denials.
What may be the biggest difference in the two bills’ approaches is that the 2006 measure authorized only non-binding opinions by the attorney general, whereas AB 289 purports to direct the ombudsperson to order an agency to provide access to records it had been withholding.  But what happens if the agency simply refuses to comply is not addressed.
Like the Leno bill, sponsored by Californians Aware, AB 289 is moving smoothly and speedily, with unanimous and bipartisan acceptance by the Assembly Judiciary and Accountability and Administrative Review Committees and referral to the Appropriations Committee with a recommended placement on the consent calendar,