A bill that would allow judges to punish state and local agencies for willfully frustrating public access to government records is on the chopping block in the Assembly Appropriations Committee in Sacramento.
As reported in a member alert by the California Newspaper Publishers Association,
This Friday, the Assembly Appropriations Committee will seal the fate of AB 1479, this year’s most ambitious freedom of information measure, which would create a penalty of up to $5,000 in the California Public Records Act that could be levied on agencies that fail to comply with their duties and responsibilities under the law.
At CNPA’s annual summit this past weekend, members discussed the prolific problems requesters face in timely access to records, with one member commenting that the CPRA is increasingly losing its utility for news organizations due to agencies across the state slowing and obfuscating the release of records on a regular basis.
Currently, the CPRA is a no-fault statute. AB 1479 would change that. Authored by Assemblymember Rob Bonta (D-Alameda), AB 1479 would add a civil penalty for egregious violations of the CPRA. The measure would give requesters the ability to tell the court that the agency acted in bad faith, and would permit the courts to make findings on that issue, and essentially punish an agency for bad behavior.
The Appropriations Committee has assessed the fiscal aspects of the bill and deemed the potential costs to be “unknown.” Without a hard number indicating the costs of the bill, which CNPA believes will be minimal, AB 1479 is at risk of being on suspense as the Legislature strategizes on which proposed laws should move forward based on the state’s budget.
As Sacramento Bee veteran Capitol columnist Dan Walters observed a year ago, the appropriations committees’ use of the suspense file allows legislative leaders to quietly veto bills they don’t like without exposing their party to accountability for killing popular proposals:
The suspense file process has morphed into a way for the Legislature’s leaders to decide in secret which bills will be allowed to proceed and which will not, for reasons known only to themselves. At some point later in the session, the committees will meet and in mere minutes declare which bills will be allowed to reach the floors of both houses. Pro forma votes will be entered into the official record, but that’s just window dressing.
The arbitrary nature of the process is aimed not only at winnowing the volume of measures reaching the floors, and their costs, but at protecting legislators from having to cast votes that could be politically difficult.
For perspective it should be noted that a comparable bill—but one twice as tough—sponsored by Californians Aware (CalAware) 11 years ago reached Governor Schwarzenegger’s desk, surviving suspense files and passed by all but anonymous votes in both houses. AB 2927 (Leno) of 2006 was vetoed for unrelated reasons, but contained the following penalty clause:
(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.
An award pursuant to this section shall not exceed a total of ten thousand dollars ($10,000) for the record or records in question.
Then Assembly Member Mark Leno (D-San Francisco) was prompted to introduce the bill by CalAware’s audit of the 31 state agencies, boards and commissions required to post their information access guidelines in their main offices. The audit showed an average score of 37 percent compliance with the most fundamental requirements of the Public Records Act.