Sunday, June 16, 2013

Who Buried SB 71/AB 76 Legislation In The CA Budget?

The bill was authored by the Senate Budget and Fiscal Review Committee. None of the Bay Area committee members -- chairman Mark Leno, D-San Francisco, and members Jim Beall, D-San Jose; Mark DeSaulnier, D-Concord; and Loni Hancock, D-Berkeley -- responded to emails and calls seeking comment late Friday afternoon.
Brown's spokesman on the budget, H.D. Palmer, said late Friday the budget conference committee had adopted a "compromise" solution by the Legislative Analyst's Office,
California Public Records Law 'Eviscerated' in Budget Bill, Critics Charge
By Thomas Peele and Josh Richman
Proposed Budget Would Weaken California's Public Records Laws- By Chris Megerian LA Times
See this important post for embedded links, here:
"Transparency in California Should Not Be Optional

** this is just the text, please visit the link above to view add'l info**
This post has been updated and adapted to reflect the developing situation in Sacramento. Thanks to Californians Aware and the First Amendment Coalition for staying on it.

The California legislature is close to suspending important provisions of the state’s public records act, giving local agencies the authority to unilaterally ignore procedures designed to ensure government transparency.

Senate Bill 71 and AB 76, which could be passed and sent to the governor's offiice on Saturday, would allow government bodies on the local level—such as cities, counties, sheriff’s departments and education systems—to choose whether or not to follow certain requirements under the California Public Records Act. These provisions would be downgraded from law to mere “best practices.” Gone would be the deadlines for determining whether records are disclosable and notifying the member of the public who requested the records. Gone would be the requirement that agencies assist members of the public in identifying which records would answer their questions. Gone would be the mandate that agencies turn over documents in an electronic format if the records have already been digitized.

A local government wouldn’t even have to publicly disclose its records-disclosure policy in writing. The bills only say an agency must “announce orally” once a year if it decides not to follow the new “best practices.”

The impact on government watchdogs, journalists and the public—including EFF—would be profound. The legislation would create long waits for access to records, allow agencies to interpret requests narrowly (say, rejecting requests unless the citizen asks for a specific document), and leave the requesters waiting in limbo indefinitely as government agencies will have no incentive to be helpful.

Further, it would create massive inconsistencies in policies across the state, making it difficult for members of the public to know what their rights are under the law. Because the opt-out announcement could be made orally, people may have to go back and listen to audio recordings of meetings to even find out if local officials decided to ignore the recommendations.

The state senate and assembly each passed separate versions of the legislation in May under the auspices that it would save the government money. So far no dollar figure has appeared in any public legislative analysis (meanwhile, the state's revenue has exceeded expectations by $4.5 billion).

Even if the change in law would save money on the front end (if anything, a drop in the bucket), taxpayers would pay a heavy price for it in the long haul: It could mark the end of the public’s ability to uncover wasteful spending, ineffective social and educational programs, foolish development projects, abusive practices by law enforcement, and political graft. The agencies most likely to opt out of the best practices won’t be the ones with the tightest budgets, but the ones with the most to hide.

California has long had a strong commitment to government transparency. The California Public Records Act became law in 1968, just one year after the federal Freedom of Information Act, and recognizes that:

access to information concerning the conduct of the people's business is a fundamental and necessary right of every person in this state.
Californians even incorporated a right to government transparency into the state constitution by overwhelming majority vote in 2004. However, this proposed legislation would strongly undermine this important right.

As is it now, California’s public-records laws are inadequate. The State Integrity Project—a report-card-style study by the Center for Public Integrity, Global Integrity and Public Radio International—gave the state a D- in the terms of public access to information. The grade was based on a 75-percent mark for the legal right to access and a 47-percent for actual effectiveness.

If this measure is passed, we predict that failing grade will drop even lower.

This legislation runs in exactly the opposite direction that the government should be moving in terms of open government. Public access to records should be included as a standard part of the overhead of any government activity. EFF urges the state legislature to stand up for accountability and remove the public-records provisions from SB 71/AB 76 now or vote it down altogether. And if this land on his desk, Governor Jerry Brown should not hesitate to veto the anti-transparency measure buried in this budget."
and also this:
Legislative Alert!!! Stop CA SB 71 !!
it reads:
"From Peggy Rossi – CSGA Legislative Watch Chair ….. I received a call and the message below this morning from Jan Meisels Allen of IAJGS. It is a heads up to a “trailer bill” attached to another bill. Please read below and contact your representatives as soon as possible. This could have serious consequences for records access.
IAJGS Public Records Access Monitoring Committee member Teven Laxer heard about this trailer bill about it on NPR this morning as Common Cause is strongly opposed. The following information was sent out by IAJGS…..

“… SB 71—it’s a trailer bill—NO HEARINGS and will be heard on floor of Senate and Assembly today or tomorrow. It requires only a majority vote to pass. One of the provisions is to make the California Public Records Act requests for records VOLUNTARY compliance by the local agency.

“trailer bills” that will accompany the budget bill for floor votes Friday — and possibly Saturday. The last-minute release of the policy bills needed to implement the spending plan has become something of a tradition at the Capitol, with open government advocates complaining that the public is not given enough time to evaluate the sometimes voluminous provisions. The Senate this morning voted to send all the bills to the floor without committee hearings, drawing the ire of Republicans.

This is the link to the bill—see pages 3 ( paragraph (3) , 17 (lines 2-40) -18 (lines 1-24).

There is very little we can do other than contact CA State Senators and Assembly persons to vote no on the bill or try to have someone amend it on the floor by removing these provisions. If the bill passes and since the D’s have a majority and this came from the D’s it is assumed it will pass is to ask Governor Brown to line item veto these provisions on pages 3, 17 and 18.

This is the link to the CA Legislature; —click on Senate or Assembly then on each of those pages either member or Senators for a list and link to each office.

While I am copying below only select sections please read all three pages to get the entirety of the bill

Page 3:

(3)Existing law, the California Public Records Act (CPRA), requires state and local agencies to make public records available upon receipt of a request that reasonably describes an identifiable record not otherwise exempt from disclosure, upon the payment of fees to cover costs. This bill would, commencing on the effective date of this bill, make compliance with certain provisions of the CPRA, which among other things relate to the delivery of electronic data, optional for local agencies.

The bill would encourage local agencies to follow these provisions as “best practices” and would require a local agency that determines that it will not follow these best practices to so announce orally at its next regularly scheduled public meeting and annually thereafter. By requiring this announcement, this bill would impose a state-mandated local program.

Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest. This bill would make legislative findings to that effect.

While Section 4 of the bill provides that compliance with the Public Records Act by California local agencies could be voluntary, upon notice by that agency at a public hearing.


LINE 21- b) Beginning on January 1, 2014, a local agency that
line 22 – determines that it will not follow these best practices, shall so
line 23 – announce orally at its next regularly scheduled public meeting
line 24- and annually thereafter at a regularly scheduled public meeting
Note also on page 18: (3) Section 6253.9. As on this requirement, the local agency - line 17 – may determine the format of electronic data to be provided in - line 18 – response to a request for information
Sacramento Bee’s Dan Walters column is a scathing rebuke of this process:

Please share this info.
California Public Record Act Threatened By Stealth Amendments by Peter Scheer, a lawyer and journalist, is executive director of the First Amendment Coalition.
The California Public Records Act (CPRA) is gravely threatened by stealth amendments revealed for the first time yesterday as part of a “trailer bill” to the new state budget. Instead of the relatively minor cost-saving tweaks proposed earlier by the governor and approved in legislative committees, the actual amending language will gut key transparency safeguards in California’s most important open-government law.
I am writing to ask you to call on Governor Brown to veto the relevant portions of the budget trailer bill that is headed to his desk as early as tomorrow. We invite you to do this by email to the Governor office, using the form provided in this email.
How, exactly, will the budget trailer bill undercut the CPRA and set back open government?
1) Public access to data controlled by local governments, so important to open-data and big-data initiatives, will come to an end. The final trailer bill, SB 71, eliminates the requirement of existing law that agencies must make available “electronic” records or information in “any format” in which the agency already holds them. Gov Code sec. 6253.9(a)(1). Instead, according to SB 71, “the local agency may determine the format of electronic data to be provided in response to a request for information.”
This change will empower local governments to limit data access to situations in which the requested data will show government agencies and officials in a positive light. All other requests for data will be blocked by producing data in formats that are unusable in databases. Example: Requests for data held in .xls (Excel) or .csv formats will be produced (if at all) as .pdf files–even though the agency has the data in the requested formats and therefore can provide it in the requested formats at no cost.
2) Local governments, when denying written requests for public records, will no longer be required to give a reason for the denial. SB 71 purports to make that common sense requirement (found in Gov Code sec. 6255(b)) completely optional. What does optional mean? You can be sure that all lawyers for cities, counties or school boards, once they become aware of this change, will advise their clients to give no reasons for denying records.
3) Local governments may even take the position that SB 71′s changes free them from any obligation to communicate–at all!—with requesters about the status of a denied CPRA request. Agencies that believe requested records are exempt from disclosure could elect to say nothing to the requester, leaving him/her in the dark, unable to determine–without suing–whether the requested records will be disclosed or withheld.
Tell Governor Brown to veto the provisions of SB 71 that would affect these changes in existing law."

Legislature Moves to Neuter the Public Records Act

Let everyone you know who cares that their right to a prompt and informative response to a request to copy or even see public records of local government agencies is being switched off indefinitely by the Legislature, without a single public hearing debate. With the relevant trailer bill amendments in print today (SB 71 and AB 76) which will go into immediate effect with the budget, it’s clear that the California Public Records Act (CPRA) mandate suspensions are far worse than had been anticipated. If they go into effect, local agencies including counties, cities, educational and special districts and others will no longer have the legally enforceable obligation to:

assist requesters to frame and direct their written requests in effective ways;
provide electronic records in a format specified by the requester, even if the agency can do so without special cost;
provide a determination notice within 10 days as to what if any information will be released;
provide a notice within 10 days that up to an additional 14 days will be needed to make the determination, and what justifies the added delay;
provide any written response to the requester at all, even if the request was in writing, including a written statement of the legal basis for withholding information.
These CPRA requirements are still encouraged in the bill as “best practices,” and agencies are required to state orally (but not in writing) at their first public meeting of the calendar year beginning in 2014, any intention not to observe these obligations. But failing to make that statement does not prevent the agency from changing its mind, and in fact an affirmative commitment to continue would not be enforceable in court.

This blog stated in back in February, when the proposed suspensions were more limited, why as a policy matter they are completely bogus, even compared with the previous Brown Act suspensions, which were actually based on some kind of experience.

The purpose of suspending mandates, as shown with last year’s unplugging of certain open meeting law requirements, is supposedly to keep the state from having to pay unaffordable local government claims for the cost of performing extra services added to the law in the last few decades.

In the case of the Brown Act, such documented reimbursement claims accumulated over the years to constitute multiple millions of dollars of obligations from the state to cities, counties and districts. But unlike the Brown Act claim drain, there is no huge and continuing mountain of mandate reimbursement demands under the Public Records Act. In fact the Commission on State Mandates (CSM) only approved the CPRA requirements for state reimbursement in May 2011, and the Legislative Analyst’s Office (LAO) concedes, “As the CSM has yet to issue a statewide cost estimate, the annual state cost of funding the CPRA mandate is uncertain.”

But nevertheless, the LAO insists, “given the breadth of activities required by the CPRA mandate and the number of local governments affected, we estimate that annual state costs could reach the tens of millions of dollars”

In 10 years, maybe, if never paid.

Otherwise, the estimate is wildly conjectural. The costly Brown Act mandates such as meeting agenda composition and posting became costly simply because they were automatically triggered by every meeting, month after month, of every one of the thousands of local government bodies in the state. They understandably accumulated very rapidly, like the animated brooms propagating around Mickey Mouse in the Sorcerer’s Apprentice sequence of Fantasia.

In contrast, the targeted CPRA mandates are triggered only upon specific requests.The problem is that while the majority of local agencies that already do their best to get back to the requester with a determination within 10 days would probably continue to do so without the mandate, and needing no “best practices” preachments from Sacramento, there are some others that already consider servicing CPRA requests a low priority if not a nuisance. If they took advantage of the mandate suspension to adopt a “when we get around to it” and hide-the-ball standard, nothing could compel them to do better—not even a lawsuit.

Moreover, this exploitation of the suspension would probably happen very quietly. Again in contrast with the Brown Act suspension last year, in that episode almost no local agencies took advantage to go dark because to stop posting agendas would have been a conspicuous and politically damaging departure from public expectations, whereas only the CPRA requester would notice if the agency stopped being as responsive or helpful as the law previously required. In a relatively small but persistent percentage of instances brought to CalAware’s attention, the public records request never gets a response of any kind after months of waiting. Those agencies are the ones who look forward to the proposed suspensions.
The suspect circumstance of this move is that no one has been willing to go on record with even an estimate of the cost savings to the state. Any reimbursement claims sent to the Controller so far have not accumulated to the point that a number can be ventured. Thus the suspensions cannot be justified by fiscal necessity. So what are they doing in a budget bill? One reasonable conclusion is that someone simply wants to take these burdens off local government whether they are threatening the state treasury or not. That’s certainly the laissez faire message of the Prop 59 clause in the bills:

The interest being protected is the strong interest of the Legislature in allowing, to the extent possible, local agencies to control the manner in which they perform their public duties, including, but not limited to, the manner in which they comply with the spirit and purpose of the California Public Records Act.
You can check status of SB 71 here
and AB 76 here

-it looks like AB 76 passed on June 14th but it is unclear if SB 71 has passed.-- Um, it looks like folks are saying the budget passed - so...

After voting Friday for the state's main, $96.3 billion budget bill, lawmakers today finished voting on all but one of the numerous trailer bills required to implement the annual spending plan. Senators were expected in committee Monday to discuss the final measure, involving a coordinated care program for "dual eligibles" - people enrolled in both Medi-Cal and Medicare.

For the most part, however, the budget is done.

"I'm just very pleased," Steinberg said.

Gov. Jerry Brown is expected to sign the spending plan before the next fiscal year begins July 1.
from: California Budget Negotiations A Breeze For Jerry Brown
and also see: California Democrats wrap up budget, flex supermajority power

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