California Legislature Continues Battle Over Public Records Act
June 20, 2013 1:21 p.m.
California Assemblyman Rocky Chavez represents San Diego's 76th district. Asm. Chavez is a republican on the Assembly budget committee.
Guylyn Cummins is a partner in the San Diego office of entertainment, media and technology legal group of Sheppard Mullin Richter Hampton. She specializes in First Amendment issues.
CAVANAUGH: Our top story on Midday Edition, outcries from the public and from media organizations have prompted the California assembly to step back from a plan that could limit public access to government records. But their response has created a very confusing situation in Sacramento. This morning, the state assembly amended language in its AB-76 bill that would have essentially left it up to local governments to decide if they wanted to comply with public record access requests. But the Senate says it has a better idea by pushing for a constitutional amendment. I spoke with state assembly man rocky Chavez of San Diego's 76th district.
[ AUDIO RECORDING ]
CAVANAUGH: Now, I know you do not support the original AB-76. I think many people were upset not just about what the bill would have done, but how it came out of committee. Some said it was rushed. Would you agree?
CHAVEZ: I the agree totally. That was my statement on the assembly floor about transparency.
CAVANAUGH: The original AB-76 would have left it up to the discretion of local governments to comply with requests from journalists, or the public, for many people documents. Why was this thought to be a money-saving measure?
CHAVEZ: Because it actually came out of the Senate, not out of the assembly. The assembly originally didn't have it. But the Senate thought that it would be, that they were using the term best practices in providing the information to the public, but there were going to be a cost, and they were trying to address the process for getting public records.
CAVANAUGH: Is the state routinely billed by local governments for the cost of providing public access requests?
CHAVEZ: Yes, that's my understanding.
CAVANAUGH: Do you have any idea how much it was supposed to save the state?
CHAVEZ: You know, they never said that. I was not involved in the conference committee when this issue was brought up because the assembly originally didn't have this. When the assembly met with the Senate and the governor, this was introduced and brought before the assembly, when I first saw TI only had the budget for just a few hours and required to vote on it.
CAVANAUGH: And your original answer, this bill I think amended or changed in some way over 100 laws; is that right?
CHAVEZ: That's right. There was -- it was about a 90-page book that they gave to us, and a series of terms they're using. And as I talked to the speaker, even this morning the speaker recognized that a lot of this information was brought to you in a very small period of time.
CAVANAUGH: What kind of reactions did the assembly get in the public records access part of AB-76?
CHAVEZ: Everybody, Republican and Democrat when they saw the reaction to this, decided we needed to correct it. So the assembly voted today to go ahead and strike this portion of it. I know the Senate is talking about a constitutional amendment. I think that's using a hammer to kill a fly. But obviously it hit a note.
CAVANAUGH: Did the assembly receive e-mails? Did they just react to the outcry in the media? I wondered what the reaction to this was like.
CHAVEZ: It was from all sources. I think right now in the public eye, this issue of transparency and on the other side privacy, with all the things going on at the federal level is really in front of the eye of the public. So it's an important thing that policy makers are aware of this, and it's kind of a yin yang between transparency and privacy and that we be thoughtful in any actions we talk in this area.
CAVANAUGH: The assembly voted to remove the public records provision in this bill this morning. Do other aspects of this very large bill remain in tact?
CHAVEZ: Yes, they do, and that's why the Republican caucus voted not to support this bill. Among all the other issues, mainly with the issue of fees and taxes and on oil and jobs, there's so many different things, on bonds, on information technology, all these different items in there that we really weren't involved in the deciding of this process.
CAVANAUGH: Now, the leader of the state Senate says that he is not inclined to change the bill in the Senate, amend it, you know, take out that portion that the assembly did about public record access. So how does that actually work? Can two bills now go to the governor's desk?
CHAVEZ: No, what's going to happen is it's going to go back to the Senate, the Senate is not going to take it. It ultimately goes to the governor who has the ability to decide which ones he wants to strike or accept with mis veto power. That's I didn't think the Senate's position of the constitution amendment is just really a smoke screen to say, well, if you're willing to change the bill, I'm going to do one more and go after a constitutional amendment, which is trying to put a smokescreen up on identifying that this really came from his office, his organization. It does restrict the ability of public records. It wasn't a best practice move. And they basically are caught with their hands in the cookie jar. They're scrambling very quickly.
CAVANAUGH: Now, if this unchanged budget bill is approved, if the governor does sign it, what happens to public access to government records between now and perhaps the time voters get a chance to vote on a constitutional amendment?
CHAVEZ: I don't believe it's going to happen, but if it went through, actually it would have the best practices that was originally approved by the assembly and the Senate last week.
CAVANAUGH: And so therefore the legislature would basically say that it's going to monitor how local governments -- whether they are applying this and not allowing access to public records? And if they see that, they'll step in and will amend it at that point, which is very confusing.
CHAVEZ: It's very confusing. And as I mentioned earlier, it goes back to the whole discussion we're having in the community between privacy and transparency. And I think that this is clearly a transparency issue, that it's important that the public have a right to know what their government is doing, and anything that we do to restrict that ability -- and it's a very important element for the press to have that ability. It's their job to have a light on what we're doing and communicate to the voters and inform the voters on what governments are doing.
CAVANAUGH: My last question to you, it sounds from some of your answers that you think that the Senate might eventually get on board with this amendment, with the changes, and move that forward to the governor's desk.
CHAVEZ: I would think that would be a very smart move, but I think the smoke and mirrors of the constitutional amendment is -- at the end of the day, as we just identified earlier, it's a very convoluted process that the Senate is laying out. It's not going to put them well in the public eye. I don't believe the governor will allow it go forward as it's written. And so I think at the end of the day, we're going to go back to where we were before. And the thing I would think that the public needs to recognize, we just had a whole budget put together, it was done in a very quick and nontransparent way, and things like this get added into the making of the budget or as we like to say in the streets, making of the sausage. Which is wrong.
[ LAUGHTER ]
CAVANAUGH: Okay. Thank you so much.
CHAVEZ: Thank you.
[ LIVE STUDIO ]
CAVANAUGH: Joining us now is Guylyn Cummins, a lawyer in the San Diego office of Shepherd Mullen Richter and Hampton, a consultant for KPBS. Welcome to the program.
CUMMINS: Thank you very much for having me.
CAVANAUGH: Organizations like the First Amendment Coalition, the California newspapers, Publisher's Association, they were up in arms over AB-76. What was in the bill that might have limited access to public records?
CUMMINS: It had, for example, the California Public Records Act has strict deadlines in which government agencies can respond. So they can't just sit on the records if are years and not make it newsworthy. It also has to provide the reason, the exception if you will, why the information doesn't have to be provided. And that's critical in knowing whether you need to initiate a lawsuit to force the government to comply. And in this age of technology, there's lots of technology that is available in formats that are exceedingly helpful. So the government can make them available however it wants, including maybe tens of thousands of e-mails in paper form that are not searchable. So it essentially gutted the California Public Records Act. It made it optional.
CAVANAUGH: Can you give us an example of a news story we might not have gotten if local governments were not required to give access to public records?
CUMMINS: Yeah, I can give you several. One that's pending right now before the California Supreme Court, it was one that the LA Times was involved in, that is the names of officers who were involved in lethal shootings. And so under the California Public Records Act, that information should be available to the public. And what law enforcement is saying is no, that's part of their personnel file or part of the investigation of lethal shootings. Therefore the public can't have it. Several years ago, I was involved in litigation against the city with respect to what it cost the City of San Diego to host the Super Bowl. And the city said that was secret or proprietary information because at the present timed to bid on future super bowls. Well, what it cost the city or the taxpayers is a critical piece of information. So under the California Public Records Act, we were able to get the proposals and the cost.
CAVANAUGH: I don't want to leave the impression that this was only a measure that might have affected journalists. This would have affected everyone's access to public records.
CUMMINS: Yes, many businesses and corporations use the Public Records Act to get information out of the government as well. Any business, big or small, private citizens, the media entities, almost all of us.
CAVANAUGH: This was put forward as a cost-cutting measure for the state. Haven't local governments complained about how much public records request cost them?
CUMMINS: They have. And their argument is that it's now costing them more with the Public Records Act, and those are state mandates that the state should pay for. But access to information is a fundamentam right of every person. And what the amendments have tried to do is say government, you need to help the people who want information formulate their response. You need to actually respond in a timely fashion or to explain why you can't comply with the statutory deadline. And access stoinformation, if it's delayed for years, it has little or no value.
CAVANAUGH: Don't news organizations also have to kick in if they ask for an extended amount of data?
CUMMINS: There are some provisions with respect to the electronic data that can be provided that they can charge for formatting it if they don't have the record in that form. They can charge a certain cost if they're justified under the statute. But generally that's just with respect to electronic information. Also the state law has always been that they can provide for the actual cost of duplication but you can't make the cost so prohibitive that a citizen can't actually ask for the information. And we've seen in the last couple years, sometimes the information is so exceedingly helpful, for example maps, that the government entities want to make a lot of money off selling those databases. So they don't want to give it away free. They want to charge for it, even though it's public information.
CAVANAUGH: As we just heard in the discussion with assemblyman Chavez, the situation in Sacramento pretty murky. If compliance to public records access is left up to local governments, even only temporarily, between the time the governor signs a bill, to the time the constitutional amendment might be introduced, what effect do you think that might have?
CUMMINS: My experience has been if the government has dirty laundry, they're not willing to make it public voluntarily, that you either have to have a whistleblower that's telling you what's really happening so you can go after the information or you have to do a data request and hope that the e-mails or the documents of the elected public officials show you what the miss conduct is. But in my experience, that's not something government willingly makes public.
CAVANAUGH: What is your feeling about whether or not the state does need a constitutional amendment that basically guarantees these provisions of the public access?
CUMMINS: Well, are I've heard very different viewpoints. I talked with Terry Frank of Caloware, and he believes if they pass a institutional amendment that says local agencies have to bear the cost of providing their own record, that'll be the end of it. Constitutional amendments are hard to get passed. And as the law is right now under the California records act, it works relatively well. Much better than the federal counterpart. So I guess I would rather see the governor at this point just veto assembly bill 76 and leave the status quo.
CAVANAUGH: And one last question for you, Scott Sherman says he wants the City Council to approve a San Diego Public Records Act. Do you think that would be a good move?
CUMMINS: Well, I think that, for example, San Francisco, has the Sunshine Bill that augments the California Public Records Act. The problem is once you start getting these piecemeal pieces of legislations, if I'm for example a journalist doing a statewide study of arrest records, every city has their own different Sunshine Act. I may or may not be able to get that information. So in my opinion right now, it's better that it's a state mandate. And I think we saw a good example in Bell California, even if they had their own Sunshine Act, you are might not get the information of the wrongdoing and corruption that was happening there.
CAVANAUGH: Thank you so much.
CUMMINS: Thank you.