Yesterday, February 22, 2019, Senator Ben Hueso introduced SB 615, a bill which would rewrite the California Public Records Act to make it radically more difficult for requesters to file and win petitions against noncompliant public agencies. As it stands, a petition filed in Superior Court is the only mechanism for enforcement of this essential law. Most people can’t afford lawyers, of course, but the CPRA at least tries to ameliorate this flaw by making it relatively easy for requesters to recover attorney’s fees from noncompliant agencies.
The law presently says that a requester wins a CPRA suit if the suit induces the agency to produce a record that was previously withheld. It’s not necessary to prove that the agency withheld the record on purpose. In fact, in Community Youth Athletic Center v. National City the California Court of Appeals specifically held that even incompetence or neglect were not valid excuses for not producing. Hueso’s bill would nullify this opinion and many others like it and require requesters to show that agencies “knowingly, willfully, and without substantial justification failed to respond to a request for records.”
In my extensive experience, agencies are already expert at denying access to records without ever saying that that’s what they’re doing. Instead they create an endless series of delays, errors, failures to respond quickly, and so on, which add up to a denial. I have had public agencies shine me on for years this way. And sadly judges are generally so deferential to public agencies that it’s already nearly impossible to prove that an agency involved in this kind of disingenuous delay is in violation. If it becomes necessary to prove that they’re doing it on purpose in order to recover fees there will be even fewer lawyers than there already are willing to take on these cases.
The bill would add a few other ways for a requester to prevail. Most of these are bad or neutral, but one is somewhat positive. That is the statement that petitioner wins by showing that “[t]he agency unreasonably delayed providing the contents of a record subject to disclosure in part or in whole.” Currently the CPRA says that agencies can’t delay access but it doesn’t explicitly create a cause of action for delay. Again, in my experience, judges’ deference makes attorneys reluctant to file such petitions. Maybe this would improve that situation.
That one potential improvement is not worth the destruction, though. If this bill passes into law look for already obstructionist agencies to ramp up their obstruction. Look for the already small number of lawyers willing to take CPRA cases on an affordable basis to decline sharply. Look for the already slow flow of records to decrease drastically.
Interestingly, the right of access to public records is written into the California Constitution at Article I Section 3, and in subpart (b)(2) it requires that “A statute, court rule, or other authority adopted after the effective date of this subdivision that limits the right of access shall be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.” Hueso’s bill contains some boilerplate language about this, but it doesn’t demonstrate anything, it just states it. The bill would clearly limit access, though, so maybe it would end up being unconstitutional.
And turn the page for a transcription of the legislative counsel’s summary and of the actual proposed changes. And then find your legislator and write in opposition to this crappy and dangerous bill.
Legislative Counsel’s Digest
SB 615, as introduced, Hueso. Public records: disclosure.
The California Public Records Act requires a public agency, defined to mean a state or local agency, to make its public records available for public inspection and to make copies available upon request and payment of a fee, unless the public records are exempt from disclosure. The act makes specified records exempt from disclosure and provides that disclosure by a state or local agency of a public record that is otherwise exempt constitutes a waiver of the exemptions.
Existing law permits any person to institute proceedings for injunctive or declarative relief or a writ of mandate in any court of competent jurisdiction to enforce their right to inspect or to receive a copy of any public record or class of public records covered by the act. The act, when it appears to a superior court that certain public records are being improperly withheld from a member of the public, requires the court to order the officer or person charged with withholding the records to disclose the public record or show cause why they should not do so. The act requires the court to award court costs and reasonable attorney’s fees to the requester if the requester prevails in litigation filed pursuant to these provisions, and requires the court to award court costs and reasonable attorney’s fees to the public agency if the court finds that the requestor’s case is clearly frivolous.
This bill would require a person to meet and confer in good faith with the agency in an attempt to informally resolve each issue before instituting any proceeding for injunctive or declarative relief or writ of mandate. The bill would require the person or their attorney to file a declaration stating that this has occurred at the time that proceedings are instituted. Because the declaration would be made under penalty of perjury, the bill would expand the definition of a crime and impose a state-mandated local program.
The bill would define “improperly withheld” for purposes of the act to mean a refusal by a public agency or public official to disclose a public record or some part thereof. The bill would require that in order for a requester to prevail in litigation related to the act, the trial court must find by a preponderance of the evidence that an agency knowingly, willfully, and without substantial justification failed to respond to a request for records, improperly withheld from a member of the public records that were clearly subject to public disclosure, unreasonably delayed providing the contents of a record subject to disclosure in part or in whole, improperly assessed a fee upon a requester that exceeded the direct cost of duplication, or otherwise did not act in good faith to comply with these provisions. The bill would make other nonsubstantive changes.
The California Constitution requires local agencies, for the purpose of ensuring public access to the meetings of public bodies and the writings of public officials and agencies, to comply with a statutory enactment that amends or enacts laws relating to public records or open meetings and contains findings demonstrating that the enactment furthers the constitutional requirements relating to this purpose.
This bill would make legislative findings to that effect.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
SECTION 1. 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 their right to inspect or to receive a copy of any public record or class of public records under this chapter. Before instituting any proceeding for injunctive or declarative relief or writ of mandate in any court or competent jurisdiction, the person shall meet and confer in good faith with the agency in an attempt to informally resolve each issue. The person or their attorney shall file a declaration stating that this meet and confer process has occurred at the time that proceedings are instituted. 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. 2. 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 they 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 the court 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 the court 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 the party of a written notice of entry of the order, or within such a 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 they are not in contempt of court.
(d) (1) The court shall award court costs and reasonable attorney’s fees to the requester should the requester prevail in litigation filed pursuant to this section.
The In order for a requester prevail in litigation filed pursuant to this section, the trial court shall find by a preponderance of the evidence one of the following:
(A) The agency knowingly, willfully, and without substantial justification failed to respond to a request for records.
(B) The agency improperly withheld from a member of the public records that were clearly subject to public disclosure.
(C) The agency unreasonably delayed providing the contents of a record subject to disclosure in part or in whole.
(D) The agency improperly assessed a fee upon a requester that exceeded the direct cost of duplication.
(E) The agency otherwise did not act in good faith to comply with these provisions.
(2) 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 requester’s case is clearly frivolous, it shall award court costs and reasonable attorney fees to the public agency.
(e) Nothing in this section shall be construed to limit a requestor’s right to obtain fees and costs pursuant to subdivision (d) or pursuant to any other law.
(f) For purposes of this section, “improperly withheld” means a refusal by a public agency or public official to disclose a public record or some part thereof.
SEC. 3. The Legislature finds and declares that Sections 1 and 2 of this act, which amends Sections 6258 and 6259 of the Government Code, furthers, within the meaning of paragraph (7) of subdivision (b) of Section 3 of Article I of the California Constitution, the purposes of that constitutional section as it relates to the right of public access to the meetings of local public bodies or the writings of local public officials and local agencies. Pursuant to paragraph (7) of subdivision (b) of Section 3 of Article I of the California Constitution, the Legislature makes the following findings:
This act furthers the purposes of the California Public Records Act by promoting speedy resolution of conflicts relating to disclosure of records.
SEC. 4. No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.
Image of Ben Hueso is ©2019 MichaelKohlhaas.Org and is based to some extent on a screenshot from this damn video of Ben Hueso doing what he does.