OPEN GOVERNMENT
This is the second of four segments analyzing the proposed new rules
on public access to the administrative records of the California court
system. The proposals are open for public comment now through October
29, and the final product, to be adopted by the California Judicial
Council, will take effect January 1.
Our overview comments appeared here last week. The following shows the actual language
of the first rule, followed by any comments on meaning or effect. Any
links or italics in the text of the rules are inserted for explanatory
purposes and are not part of the rule.
(3) Procedure for requesting records
A judicial branch entity must make available on its public Web site or otherwise publicize the procedure to be followed to request a copy of or to inspect a judicial administrative record. At a minimum, the procedure must include the address to which requests are to be addressed, to whom requests are to be directed, and the office hours of the judicial branch entity.
There is no Internet guidance requirement in the California Public Records Act, which applies to executive branch and local government agencies but excludes the judicial branch. The only comparable CPRA rule, in Government Code Section 6253.4, applies to only a handful of state agencies and requires that they "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." Two bills vetoed by Governor SchwarzeneggerAB 1393 of 2007 and AB 756 of 2009would have required state websites to provide links, e-forms or other information for processing information requests.
(4) Costs: duplication, search, and review
(A) A judicial branch entity, on request, must provide a copy of a judicial administrative record not exempt from disclosure if the record is of a nature permitting copying, subject to payment of the fee specified in this rule or other applicable statutory fee:
(i) A judicial branch entity may impose a fee reasonably calculated to cover the judicial branch entitys direct costs of producing a paper or hard copy of any record;
(ii) A judicial branch entity may impose a fee reasonably calculated to cover the judicial branch entitys direct costs of creating a record or producing an electronic copy of a record as specified in subdivision (i); and (iii) A judicial branch entity may require advance payment of any fee.
So far, the cost rules closely parallel those in the CPRA, which states in Government Code Section 6253 (b): "Except with respect to public records exempt from disclosure by express provisions of law, each state or local agency, upon a request for a copy of records that reasonably describes an identifiable record or records, shall make the records promptly available to any person upon payment of fees covering direct costs of duplication, or a statutory fee if applicable. Upon request, an exact copy shall be provided unless impracticable to do so."
(B) When records are requested for other than commercial use, a judicial branch entity may impose a reasonable standard charge for document search and review, provided that no charge may be imposed for the first two hours of search and review time.
(C) When records are requested for commercial use, a judicial branch entity may impose a reasonable standard charge for document search, review, and duplication.
(D) A superior court must provide a copy of the certified judicial administrative record if the judicial administrative record requested has been certified by the superior court.
(D) addresses certification requirements unique to the judicial branch. (B) and (C) are fundamental departures from the CPRA model in their requirements for payment for search and review (not just copying) and a higher fee for not only search and review but also copying if the records are requested for commercial use. After Californians Aware, journalism and court labor groups and legislative representatives universally and strongly objected to an initial proposal to charge anything for search and review, the two-hour free pass was added to this version (for non-commercial requesters, that is), but this approach is likely to continue to be controversial.
(5) Inspection
A judicial branch entity must make judicial administrative records in its possession and not exempt from disclosure open to inspection at all times during the office hours of the judicial branch entity provided that the record is of a nature permitting inspection.
While it's not clear what that "provided" clause means, the "at all times during the office hours" phrase reflects the CPRA standard.
(6) Time for determination of disclosable records
A judicial branch entity, on a request that reasonably describes an identifiable record or records, must determine within 10 calendar days from receipt of the request whether the request, in whole or in part, seeks disclosable judicial administrative records in its possession and must promptly notify the requesting party of the determination and the reasons for the determination.
(7) Response
If a judicial branch entity determines that a request seeks disclosable judicial administrative records, the judicial branch entity must make the disclosable judicial administrative records available promptly. The judicial branch entity must include with the notice of the determination the estimated date and time when the records will be made available. I
f the judicial branch entity determines that the request, in whole or in part, seeks nondisclosable judicial administrative records, it must convey its determination in writing, include a contact name and telephone number to which inquiries may be directed, and state the express provision of this rule justifying the withholding of the records not disclosed.
(8) Extension of time for determination of disclosable records
In unusual circumstances, to the extent reasonably necessary to the proper processing of the particular request, a judicial branch entity may extend the time limit prescribed for its determination under subdivision (e)(6) by no more than 14 calendar days by written notice to the requesting party, stating the reasons for the extension and the date on which the judicial branch entity expects to make a determination. As used in this section, unusual circumstances means the following:
(A) The need to search for and collect the requested records from multiple locations or facilities that are separate from the office processing the request;
(B) The need to search for, collect, and appropriately examine a voluminous amount of records that are included in a single request; or
(C) The need for consultation, which must be conducted with all practicable speed, with another judicial branch entity or other governmental agency having substantial subject matter interest in the determination of the request, or among two or more components of the judicial branch entity having substantial subject matter interest in the determination of the request. or among two or more components of the judicial branch entity having substantial subject matter interest in the determination of the request.
The comparable CPRA provisions, in Government Code Section 6253 (b) and (c), state:
(b) Except with respect to public records exempt from disclosure by express provisions of law, each state or local agency, upon a request for a copy of records that reasonably describes an identifiable record or records, shall make the records promptly available to any person upon payment of fees covering direct costs of duplication, or a statutory fee if applicable. Upon request, an exact copy shall be provided unless impracticable to do so.
(c) Each agency, upon a request for a copy of records, shall, within 10 days from receipt of the request, determine whether the request, in whole or in part, seeks copies of disclosable public records in the possession of the agency and shall promptly notify the person making the request of the determination and the reasons therefor. In unusual circumstances, the time limit prescribed in this section may be extended by written notice by the head of the agency or his or her designee to the person making the request, setting forth the reasons for the extension and the date on which a determination is expected to be dispatched. No notice shall specify a date that would result in an extension for more than 14 days. When the agency dispatches the determination, and if the agency determines that the request seeks disclosable public records, the agency shall state the estimated date and time when the records will be made available. As used in this section, "unusual circumstances" means the following, but only to the extent reasonably necessary to the proper processing of the particular request.(1) The need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request.
(2) The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records that are demanded in a single request.
(3) The need for consultation, which shall be conducted with all practicable speed, with another agency having substantial interest in the determination of the request or among two or more components of the agency having substantial subject matter interest therein.
(4) The need to compile data, to write programming language or a computer program, or to construct a computer report to extract data.
(d) Nothing in this chapter shall be construed to permit an agency to delay or obstruct the inspection or copying of public records. The notification of denial of any request for records required by Section 6255 shall set forth the names and titles or positions of each person responsible for the denial.
(9) Reasonable efforts
(A) On receipt of a request to inspect or obtain a copy of a judicial administrative record, a judicial branch entity, in order to assist the requester in making a focused and effective request that reasonably describes an identifiable judicial administrative record, must do all of the following to the extent reasonable under the circumstances:
(i) Assist the requester to identify records and information responsive to the request or to the purpose of the request, if stated;
(ii) Describe the information technology and physical location in which the records exist; and
(iii) Provide suggestions for overcoming any practical basis for denying inspection or copying of the records or information sought.
(B) The requirements of (9)(A) will be deemed to have been satisfied if the judicial branch entity is unable to identify the requested information after making a reasonable effort to elicit additional clarifying information from the requester that will help identify the record or records.
(C) This subdivision (e)(9) does not apply to a request for judicial administrative records if the judicial branch entity makes the requested records available or determines that the requested records are exempt from disclosure under this rule.
(10) No obstruction or delay
Nothing in this rule may be construed to permit a judicial branch entity to delay or obstruct the inspection or copying of judicial administrative records that are not exempt from disclosure.
The comparable CPRA provision, in Government Code Section 6253.1, states:
(a) When a member of the public requests to inspect a public record or obtain a copy of a public record, the public agency, in order to assist the member of the public make a focused and effective request that reasonably describes an identifiable record or records, shall do all of the following, to the extent reasonable under the circumstances:
(1) Assist the member of the public to identify records and information that are responsive to the request or to the purpose of the request, if stated.
(2) Describe the information technology and physical location in which the records exist.(3) Provide suggestions for overcoming any practical basis for denying access to the records or information sought.
(b) The requirements of paragraph (1) of subdivision (a) shall be deemed to have been satisfied if the public agency is unable to identify the requested information after making a reasonable effort to elicit additional clarifying information from the requester that will help identify the record or records.
(c) The requirements of subdivision (a) are in addition to any action required of a public agency by Section 6253.
(d) This section shall not apply to a request for public records if any of the following applies:
(1) The public agency makes available the requested records pursuant to Section 6253.
(2) The public agency determines that the request should be denied and bases that determination solely on an exemption listed in Section 6254.
(3) The public agency makes available an index of its records.
(10)'s "no obstruction or delay" rule is taken from the CPRA's Government Code Section 6253 (d).
(11) Greater access permitted
Except
as otherwise prohibited by law, a judicial branch entity may adopt
requirements for itself that allow for faster, more efficient, or
greater access to judicial administrative records than prescribed by
the requirements of this rule.
The comparable CPRA provision, in Government Code Section 6253 (e), states: "Except as otherwise prohibited by law, a state or local agency may adopt requirements for itself that allow for faster, more efficient, or greater access to records than prescribed by the minimum standards set forth in this chapter." It is this rule that authorizes state and local agencies to adopt their own "sunshine ordinances" that accommodate public access to a greater degree than the minimum standards of state law.
(12) Control of records
A judicial branch entity must not sell, exchange, furnish, or otherwise provide a judicial administrative record subject to disclosure under this rule to a private entity in a manner that prevents a judicial branch entity from providing the record directly under this rule. A judicial branch entity must not allow a private entity to control the disclosure of information that is otherwise subject to disclosure under this rule.
The source of the first sentence is the CPRA provision, in Government Code Section 6270 (a), which states: " Notwithstanding any other provision of law, no state or local agency shall sell, exchange, furnish, or otherwise provide a public record subject to disclosure pursuant to this chapter to a private entity in a manner that prevents a state or local agency fromproviding the record directly pursuant to this chapter." The source of the second sentence is Government Code Section 6253.3, which states: "A state or local agency may not allow another party to control the disclosure of information that is otherwise subject to disclosure pursuant to this chapter."
Next segment: Exemptions from disclosure.
