What if California government agencies no longer had to let you know within 10 days how much of the public record information you’d asked for would be provided, if any? Or tell you what law allowed them to withhold it? What if they didn’t have to tell you that the information, while not in their files, could be obtained from a different agency? Or tell you what kind of digital records the information was kept in? All these helpful responses to public records requests, required by the California Public Records Act for years, are recommended in Governor Jerry Brown’s new budget to be made optional “best practices” instead of court-enforceable mandates.
The basic situation is reported by Christopher Cadelago for the San Diego Union-Tribune, and the mandate suspension proposals are examined by the Legislative Analyst’s Office here. But the purpose of suspending mandates, as shown with last year’s unplugging of certain open meeting law requirements, is supposedly to keep the state from having to pay unaffordable local government claims for the cost of performing extra services added to the law in the last few decades. In the case of the Brown Act, such documented reimbursement claims accumulated over the years to constitute multiple millions of dollars of obligations from the state to cities, counties and districts.
But unlike unlike the Brown Act claim drain, there is no huge and continuing mountain of mandate reimbursement demands under the Public Records Act. In fact the Commission on State Mandates only approved the CPRA requirements for state reimbursement in May 2011, and the Legislative Analyst concedes, “As the CSM has yet to issue a statewide cost estimate, the annual state cost of funding the CPRA mandate is uncertain.” But nevertheless, the LAO insists, “given the breadth of activities required by the CPRA mandate and the number of local governments affected, we estimate that annual state costs could reach the tens of millions of dollars.”
In 10 years, maybe, if never paid. Otherwise, the estimate is wildly conjectural. The costly Brown Act mandates such as meeting agenda composition and posting became costly simply because they were automatically triggered by every meeting, month after month, of every one of the thousands of local government bodies in the state. They understandably accumulated very rapidly, like the animated brooms propagating around Mickey Mouse in the Sorcerer’s Apprentice sequence of Fantasia. In contrast, the targeted CPRA mandates (help the requester if possible, respond [but not necessarily deliver] within 10 days, redact educators’ home addresses) are triggered only upon specific requests, and the first and last of these three would come into play quite rarely.
The problem is that while the majority of local agencies that already do their best to get back to the requester with a determination within 10 days would probably continue to do so without the mandate, and needing no “best practices” preachments from Sacramento, there are some others that already consider servicing CPRA requests a low priority if not a nuisance. If they took advantage of the mandate suspension to adopt a “when we get around to it” and hide-the-ball standard, nothing could compel them to do better—not even a lawsuit.
And this exploitation of the suspension would probably happen very quietly. Again in contrast with the Brown Act suspension last year, in that episode almost no local agencies took advantage to go dark because to stop posting agendas would have been a conspicuous and politically damaging departure from public expectations, whereas only the CPRA requester would notice if the agency stopped being as responsive or helpful as the law previously required. In a relatively small but persistent percentage of instances brought to CalAware’s attention, the public records request never gets a response of any kind after months of waiting. Those agencies are the ones who look forward to the proposed suspensions.
Finally, this proposal excuses all CPRA-governed agencies from the mandates—even state offices and departments in the executive branch, which enjoy no constitutionally compelled right to reimbursement.