SACRAMENTO, September 14 (CalAware) – An Assembly bill that promised an unprecedented improvement in government agencies’ respect for the California Public Records Act has been stripped of those provisions by a fiscal committee and in that form passed by the state Senate and sent to the Governor.
What is left of AB 1373 by Assembly Member Mark Leno (D-San Francisco) and sponsored by Californians Aware, is seen by veteran observers as a casualty of inter-house, intra-party sabotage aimed at Leno’s bills by Senate President pro Tem Don Perata (D-Oakland). Of 13 of them making it to the Senate, as of last week only five had reached the floor—with two, including AB 1393, drastically weakened.
This beyond-coincidental trashing of Leno’s legislative work for the year can only be explained by Perata’s striving to maintain the loyalty of his fellow Democrat Senators, and specifically to protect Carole Migden , a caucus principal for whose San Francisco area Senate seat Leno will be competing in next June’s primary.
The provisions summarily stricken from the bill without debate or public discussion in the Senate Appropriations Committee are those passed by the legislature in four previous bills—only to be vetoed by Governors Davis (three times) and Schwarzenegger.
The first of those provisions would have given anyone denied access to local government information the chance to have that denial reviewed by the Attorney General's office, with a published but non-binding opinion released in three to six weeks, concluding whether the denial of access was lawful or not.
The other provision would have allowed a court to impose a penalty of up to $100 per day on agencies found not only to have failed to comply with the law, but to have deliberately defied it by denying or delaying access in bad faith.
What remains in the bill is, ironically, the relatively modest portion resulting from CalAware’s 2006 audit of state agencies’ public records access practices—which found most agencies ignorant of or ignoring their basic obligations when visited by non-media requesters asking for clearly public information.
AB 1393 would now:
require all state (but not local) agencies with websites to place on the home page a Public Records Center portal or link listing title and contact information for the person(s) designated to handle public information requests—from everyone, not just the press;
require those agencies also to create on online intake form that would accept public records access requests—for either inspection or copying; and
direct the Attorney General to convene a panel of technical and policy experts to recommend to the legislature by January 1, 2009 the costs and benefits of requiring state agencies to post certain high-interest records (litigation settlements, executive compensation, etc.) on their websites automatically, eliminating the need to seek the information one request at a time.
Comment:As some solace, what remains of AB 1393 is the part that is responsive to CalAware’s audit of 31 state agencies a year ago. That audit pointed up difficulties in obtaining basic public information by simply walking into a state agency headquarters and asking for it. If AB 1393 became law, requests could be submitted on the agency’s website, and in 2009 the Legislature would be presented with a slate of professionally expert recommendations on what performance and compensation-related records significant to taxpayers and watchdogs should be routinely posted on an agency’s website instead of having to be pulled like teeth, request by request. To our knowledge, these provisions alone would put California in the front ranks of state government transparency. Accordingly, please write Governor Schwarzenegger and urge his signature of AB 1393. Postal mail will reach him (write SIGN AB 1393 on the envelope); e-mail will not. As for what happened to the rest of the bill, nothing could be more obvious in this episode than the fact that the gutting of AB 1393 had nothing to do with the discarded provisions’ merits or even cost. The Appropriations Committee, which did the damage, was told by its own fiscal analyst that the bill had a substantially lower cost impact than last year’s version, due to its having exempted state agencies from public records denial review by the Attorney General. All members of the committee had voted for the deleted provisions at least once before. But the fact that the injury was based on unrelated political feuding rather than substance is about as consoling as the notion “It wasn’t personal” to the untargeted victim of a stray bullet in a gang’s street skirmishing. The importance of the deleted provisions will be well understood to anyone whose request for public information from a government agency has proved unavailing. Is the denial justified because some law permits or requires the agency to say No? If not, is the agency simply incorrectly interpreting the law? Or is the denial not only contrary to the law but deliberately in defiance of or indifference to it? Attorney General review would go a great way toward answering whether the denial had sound legal backing, and would thus encourage agency lawyers to be careful in making sure that backing would stand up. The monetary penalty would deter deliberate disregard for the law or for requesters’ rights, in those few instances where that might be the risk. People have been complaining of the Public Records Act’s lack of “teeth” throughout its 39-year history. These enforcement elements would tell local government agencies, “Say no to a public information request, and be prepared to be second-guessed by the Attorney General.” It would tell local government and state agency officials, “Ignore or mistreat records requesters entitled to access, and stand by to pay them for it.” For these reasons, whatever happens to AB 1393 this year, CalAware pledges to see these reforms added to the law as soon as possible, and Assemblyman Leno has assured us his support in making that happen as long as he is in the legislature. Meanwhile, no better evidence could be presented of the priorities or style of Senator Perata, who is backing a measure on next February’s ballot reducing legislative terms in general but permitting four more years for himself .
