BILL NUMBER: AB 1393 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Members Leno and Maze
(Coauthor: Assembly Member Aghazarian)
FEBRUARY 23, 2007
An act to amend Sections 6258 and 6259 of, and to add Sections
6253.3, 6257, and 6259.1 to, the Government Code, relating to public
records.
LEGISLATIVE COUNSEL'S DIGEST
AB 1393, as introduced, Leno. Public records.
The California Public Records Act requires state and local
agencies to make their records available for public inspection and,
upon request of any person, to provide a copy of any public record
unless the record is exempt from disclosure.
This bill would, as of January 1, 2009, require any state agency
that publishes an Internet Web site to include on the homepage of
that site specified information that is not exempt from disclosure
under the act about how to contact the agency, how to request records
under the act, and a form for submitting online requests for
records. It would authorize any person to bring an action to enforce
the duty of a state agency to post this information and would provide
for penalties including monetary awards to be paid by the agency,
with specified provisions to become operative on January 1, 2009.
The bill would also authorize a person to request the Attorney
General to review a state or local agency's denial of a written
request to inspect or receive a copy of a public record and would
require the Attorney General to issue a written decision within 20
working days of the date the written request and written response or
lack of response of an agency is received by the Attorney General.
The bill would require the Attorney General to maintain copies of the
opinions issued pursuant to these provisions, to publish the
opinions annually in a special volume, and to make them available on
the Internet.
This bill would require the Department of Justice to convene an
advisory task force with a specified membership, to consider
specified issues with respect to a statutory standard governing the
posting of certain activities under the act, and to report its
findings and recommendations to the Governor and the Legislature by
no later than September 30, 2008.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 6253.3 is added to the Government Code, to
read:
6253.3. Every state agency that publishes an Internet Web site
shall include on the homepage of that site, prominently displayed
without scrolling, the words "Public Records Center," which shall be
followed by, or shall link to, on another page, both of the
following:
(a) Under the words "Whom to Contact," the title, mailing address,
telephone number, and e-mail address of the public information
officer or other person or persons to whom requests for inspection or
copying of records pursuant to the California Public Records Act, or
informal requests for simple factual information, should be
directed.
(b) (1) Under the words "How to Request Records," the written
guidelines authorized or required under subdivision (a) of Section
6253.4, and an HTML form for submitting online requests under the
California Public Records Act, consisting of all of the following
labeled fields:
(A) Today's date.
(B) My name (optional).
(C) My e-mail address (optional).
(D) My postal address (optional).
(E) My telephone number (optional).
(F) I am interested in the following records or information:
(G) Where can I inspect these records?
(H) Send me copies of the records.
(I) Send me a fee estimate before copying.
(2) The HTML form shall be designed to send a copy of the request
immediately and automatically to the e-mail address listed on the
HTML form, if an e-mail address is provided by the person submitting
the form.
(c) This section shall become operative on January 1, 2009.
SEC. 2. Section 6257 is added to the Government Code, to read:
6257. (a) (1) A person may request the Attorney General to review
a state or local agency's denial of a written request to inspect or
receive a copy of a public record by delivering a copy of the request
and the written response by the agency denying, in whole or in part,
the request to the office of the Attorney General within 20 days of
receipt of the agency's written denial. In the case of the failure of
an agency to provide any response under Section 6253 to a public
records request within the time limits specified by this chapter, the
person may seek review by the Attorney General by providing a copy
of the request and the circumstances under which it was sent to the
agency no less than 20 days and no more than 40 days after the
request was delivered or mailed to the agency. The Attorney General
may grant relief from the 40-day time limit upon a showing by the
person seeking relief that he or she refrained from requesting review
within the 40-day time limit because the person reasonably relied
upon representations of the agency that a response would be
forthcoming.
(2) The person seeking review shall demonstrate by means of
written proof of service or other credible and reliable means that a
copy of his or her request for review has been delivered to the
denying agency. Within 20 working days of receipt of the request for
review that complies with the requirements of this subdivision, the
Attorney General shall issue a written opinion stating whether the
agency's response or lack of response complied with this chapter.
(b) For good cause, the Attorney General may extend by 30 working
days the time to issue an opinion under this section by sending
written notice to the complaining party and a copy to the denying
agency stating the reasons for the extension and the day on which a
decision is expected to be issued. As used in this section, "good
cause" means any of the following:
(1) The need to obtain additional information from the agency or
the requester.
(2) The need to conduct research on issues of first impression.
(3) An unmanageable workload.
(4) Unanticipated absence of staff assigned to a particular
request, or similar unavoidable circumstance.
(c) The Attorney General may solicit additional information or
explanation from the denying agency, including copies of the records
claimed to be exempt, or a detailed explanation of the content of the
information in those records. The denying agency may, within 10
working days from the date of receipt of the request pursuant to
subdivision (a), submit any additional information or explanation it
deems relevant. However, the records or other information for which
an exemption is claimed shall not be provided except in response to a
request by the Attorney General and shall not be disclosed by the
Attorney General. The Attorney General shall return or destroy
nondisclosable records received under this subdivision upon
completion of the review and shall not use the records for any other
purpose. The agency need not provide records or information but
failure to do so without adequate justification under the
circumstances of the case may be considered in assessing the
sufficiency of the agency's written denial under review.
(d) If the Attorney General or the Department of Justice is the
agency that is the subject of the public records request, the request
for review under this section shall be treated as a request for
reconsideration and, when possible, shall be reviewed by members of
the Attorney General's office not involved in the original decision.
(e) Upon completion of the opinion pursuant to this section, the
Attorney General shall immediately mail a copy of it to the person
requesting review and to the state or local agency that denied access
to the record in question.
(f) The Attorney General shall maintain copies of opinions issued
pursuant to this section at each of his or her legal offices for
purposes of public inspection. The Attorney General shall cause to be
published annually a special volume of opinions issued under this
section and shall make the opinions available on the Internet. The
Attorney General may charge a fee for the sale of the volumes not to
exceed the reasonable cost of publication and distribution.
(g) Notwithstanding any other provision of law, except when the
records of the Attorney General or the Department of Justice are at
issue, neither the Attorney General, nor the Department of Justice,
nor any of its staff shall be subject to suit or to discovery in any
suit for any action taken as a result of review under this section.
(h) An opinion issued under this section does not affect the right
of a person to enforce his or her right to inspect or to receive a
copy of any public record through an action pursuant to Sections 6258
and 6259. A person shall not be required to exhaust the
administrative remedies available in this section prior to filing a
legal action. If a person elects to bring an action under Sections
6258 and 6259, the Attorney General shall not proceed under this
section. If a person elects to seek review under this section, no
legal action may be brought against the agency whose decision is the
subject of the opinion until 10 days after the issuance and mailing
of the opinion. A person may withdraw, by written notice, his or her
request for review under this section if the withdrawal notice is
received by the Attorney General prior to the issuance of an opinion.
(i) (1) Representation of a state agency by the Attorney General
involving advice as to a request for inspection or copies of public
records may provide a basis for that agency to claim an
attorney-client relationship that would preclude the Attorney General
from providing an opinion under this section regarding that request.
(2) A state agency against which an action is brought pursuant to
Sections 6258 and 6259, after a receipt of an adverse opinion under
this section, is authorized to retain counsel other than the Attorney
General.
(3) Except as provided in this section, the Attorney General's
review under this section does not preclude the Attorney General's
representation of the affected state agency on any matter.
(j) The time limits for the Attorney General to respond pursuant
to subdivisions (a) and (b) are directory not mandatory.
(k) This section shall not apply to a request for public records
made to a state agency by a party to a pending proceeding involving
the state agency or an employee of the state agency, or a pending
investigation by the state agency, if the Attorney General has
provided or is providing legal advice or representation to the state
agency with regard to the proceeding or investigation.
SEC. 3. Section 6258 of the Government Code is amended to read:
6258. Any person may institute proceedings for injunctive or
declarative relief or writ of mandate in any court of competent
jurisdiction to enforce his or her right to inspect or to receive a
copy of any public record or class of public records under this
chapter , or to enforce the duty of a state agency to post
information in its office and on its Internet Web site, if any, in
compliance with Section 6253.3 . The times for responsive
pleadings and for hearings in these proceedings shall be set by the
judge of the court with the object of securing a decision as to these
matters at the earliest possible time.
SEC. 4. Section 6259 of the Government Code is amended to read:
6259. (a) Whenever it is made to appear by verified petition to
the superior court of the county where the records or some part
thereof are situated that certain public records are being improperly
withheld from a member of the public, the court shall order the
officer or person charged with withholding the records to disclose
the public record or show cause why he or she should not do so. The
court shall decide the case after examining the record in camera, if
permitted by subdivision (b) of Section 915 of the Evidence Code,
papers filed by the parties , and any oral argument and
additional evidence as the court may allow.
(b) If the court finds that the public official's decision to
refuse disclosure is not justified under Section 6254 or 6255, he or
she shall order the public official to make the record public. If the
judge determines that the public official was justified in refusing
to make the record public, he or she shall return the item to the
public official without disclosing its content with an order
supporting the decision refusing disclosure.
(c) In an action filed on or after January 1, 1991, an order of
the court, either directing disclosure by a public official or
supporting the decision of the public official refusing disclosure,
is not a final judgment or order within the meaning of Section 904.1
of the Code of Civil Procedure from which an appeal may be taken, but
shall be immediately reviewable by petition to the appellate court
for the issuance of an extraordinary writ. Upon entry of any order
pursuant to this section, a party shall, in order to obtain review of
the order, file a petition within 20 days after service upon him or
her of a written notice of entry of the order, or within
such any further time not exceeding an
additional 20 days as the trial court may for good cause allow. If
the notice is served by mail, the period within which to file the
petition shall be increased by five days. A stay of an order or
judgment shall not be granted unless the petitioning party
demonstrates it will otherwise sustain irreparable damage and
probable success on the merits. Any person who fails to obey the
order of the court shall be cited to show cause why he or she is not
in contempt of court.
(d) The court shall award court costs and reasonable
attorney attorney's fees to the plaintiff should
the plaintiff prevail in litigation filed pursuant to this section.
The costs and fees shall be paid by the public agency of which the
public official is a member or employee and shall not become a
personal liability of the public official. If the court finds that
the plaintiff's case is clearly frivolous, it shall award court costs
and reasonable attorney attorney's fees
to the public agency.
(e) (1) If a state or local agency (A) declines to comply with a
request to inspect or copy a record that is publicly accessible
pursuant to this chapter; (B) delays in responding to the request, or
in producing the requested records, for reasons that are unstated to
the requester, or that are unsupported by compelling circumstances,
or that otherwise demonstrate a lack of the diligence required to
make records available promptly, without delay or obstruction,
pursuant to the standards and deadlines of Section 6253; (C) imposes
conditions precedent to access to records that are not authorized by
this chapter, including, but not limited to, the payment of copy fees
in excess of an applicable statutory fee or the direct cost of
duplication pursuant to Section 6253 or 6253.9; or (D) otherwise
frustrates timely and complete access; and the court determines that
the agency acted in bad faith or with reckless disregard of the
agency's obligations under this chapter, the court, in its
discretion, may make an award not to exceed one hundred dollars
($100) per day for each day, as determined by the court, that the
agency's action resulted in the denial of the plaintiff's right to
copy or inspect the record or records in question.
(2) In determining the amount of an award under this subdivision,
the court shall consider all the facts and circumstances surrounding
the agency's decision, including, but not limited to, all of the
following:
(A) Whether the agency unreasonably failed to respond within the
time periods set forth in Section 6253 or otherwise engaged in
conduct that caused undue delay.
(B) Whether the agency's justification for denying the request was
reasonably based upon its perceived obligation to protect the rights
of persons or entities identified in the requested records.
(C) Whether the agency has developed publicly accessible internal
operating procedures or guidelines under Section 6253.4.
(D) Whether the plaintiff acted in good faith in pursuing the
request.
(E) Whether the agency's denial or other conduct inconsistent with
this chapter was based on a reasonable interpretation of the law.
(f) An award pursuant to this section shall not exceed a total of
ten thousand dollars ($10,000) for the record or records in question.
SEC. 5. Section 6259.1 is added to the Government Code, to read:
6259.1. (a) Whenever it is made to appear by verified petition to
the superior court of the county wherein the plaintiff resides that
a state agency has failed to comply with the requirements of Section
6253.3, the court shall order the officer or person charged with
posting the information as required by that section, or if no such
person has been appointed, the senior officer in the agency, to
effectuate compliance forthwith or show cause why he or she should
not do so. The court shall decide the case after examining papers
filed by the parties and any oral argument and additional evidence as
the court may allow.
(b) If the court finds that the agency has failed to comply with
Section 6253.3, he or she shall order the officer or person ordered
to show cause to effectuate compliance forthwith.
(c) Upon entry of any order pursuant to this section, a party
shall, in order to obtain review of the order, file a petition within
20 days after service upon him or her of a written notice of entry
of the order, or within any further time not exceeding an additional
20 days as the trial court may for good cause allow. If the notice is
served by mail, the period within which to file the petition shall
be increased by five days. A stay of an order or judgment shall not
be granted unless the petitioning party demonstrates that it will
otherwise sustain irreparable damage and probable success on the
merits. Any person who fails to obey the order of the court shall be
cited to show cause why he or she is not in contempt of court.
(d) If the plaintiff prevails in an action filed pursuant to this
section, the court shall award court and discovery costs and
reasonable attorney's fees to the plaintiff. The costs and fees shall
be paid by the state agency of which the public official is a member
or employee and shall not become a personal liability of the public
official. If the court finds that the plaintiff's case is clearly
frivolous, it shall award court costs and reasonable attorney's fees
to the agency.
(e) This section shall become operative on January 1, 2009.
SEC. 6. (a) The Department of Justice shall convene an advisory
task force to consider and make recommendations for a statutory
standard governing the posting of requests and denials, and public
documents that are subject to disclosure, under the California Public
Records Act (Chapter 3.5 (commencing with Section 6250) of Division
7 of Title 1 of the Government Code), on the Internet Web sites of
state agencies.
(b) Members of the task force shall include all of the following:
(1) State agency or board representatives.
(2) Representatives of the Department of Information Technology.
(3) Representatives of organizations with expertise in technical
policy and practices of Internet disclosure.
(4) Representatives of organizations with expertise in privacy
policy relevant to Internet disclosure.
(5) Representatives of organizations with expertise in fostering
public integrity and accountability.
(6) Representatives of organizations with expertise in informed
electoral participation.
(7) Representatives of organizations with expertise in
investigative journalism.
(8) Representatives of legislative staff, at the option of the
applicable legislative oversight entities, and to the extent not in
conflict with their legislative duties.
(c) The task force shall consider at least all of the following
issues:
(1) Whether it is of greater value to the public for state
agencies to automatically post, with appropriate security and privacy
controls, certain public records that are subject to disclosure
under the act on agency Internet Web sites rather than making those
records available to requesters on a request-only basis. Specific
consideration shall be given to records that relate to the
compensation and economic interests of key public officials and
consultants, and the performance of public agencies, including, but
not limited to, the settlement of litigation. Specific consideration
should also be given to what specific advantages or disadvantages may
be associated with an affirmative Internet posting requirement.
(2) Whether eventual cost savings or increases in efficiency, or
both, are likely to offset the implementation and management costs of
requiring state agencies to automatically post disclosable public
records on their Internet Web sites, and whether certain types of
public records are better suited to automatic disclosure based on
these cost and efficiency considerations.
(3) Whether appropriate security measures are available, and cost
effective, to ensure that the personal or proprietary information
contained in a public record that is posted on the Internet is
protected from the possibility of identity theft or other forms of
misuse.
(4) Whether appropriate security measures are available, and cost
effective, to ensure that disclosable public records posted on the
Internet are protected from alteration by third parties or other
forms of misuse.
(5) Other issues that might arise from a statutory requirement
that certain public records be automatically posted on agency
Internet Web sites.
(d) The task force shall report its findings and recommendations
to the Governor and the Legislature by no later than September 30,
2008, at which time it shall cease to exist.