Assemblymember Vince Fong‘s AB-289 would establish the office of CPRA ombudsman under the State Auditor. The ombudsman would review requests made of state-level offices and would be empowered to actually turn the disputed records over to the requester if it were determined that they’d been improperly withheld. This would be a really important development in CPRA-world given that presently the only recourse available to a member of the public whose requests are denied improperly is to file a lawsuit, which is expensive, anxiogenic, and slow as hell. The ombudsman would be required to respond to requests for review within 30 days.
As I said, sadly this would only apply to state-level agencies and not at all to local agencies like the City of Los Angeles and its panoply of damnable business improvement districts, all of whom deny requests improperly all the damn time. I sue a lot of them but I can’t sue all of them, at least not all at once. And a CPRA petition can take close to two years to get a BID to cough up records, so it’s not an ideal solution in any way. An intermediate level of review like this would be really useful on the local level too.
But that’s not to say that it won’t be very useful on the state level. In my experience the state is much better about CPRA compliance than the various local agencies I work with, but state agencies can nevertheless deny access to records improperly, and if this bill passes into law I expect to make fairly regular use of it. Looking at you, Alcoholic Beverage Control, you and your unhinged gun-brandishing special agent in charge Gerry Freaking Sanchez. I’ll be tracking this as it makes its way through the legislative process, and turn the page for a transcription of the Legislative Counsel’s digest and the text of the bill.
Legislative Counsel’s Digest
AB 289, as amended, Fong. California Public Records Act Ombudsman.
The California Public Records Act requires state and local agencies to make their records available for public inspection, unless an exemption from disclosure applies. The act declares that access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.
Existing law creates the California State Auditor’s Office, which is independent of the executive branch and legislative control, to examine and report annually upon the financial statements prepared by the executive branch. Existing law establishes, within the State Treasury, the State Audit Fund, which is a continuously appropriated fund, for the expenses of the California State Auditor.
This bill would establish, within the California State Auditor’s Office, the California Public Records Act Ombudsman. The bill would require the California State Auditor to appoint the ombudsman subject to certain requirements. The bill would require the ombudsman to receive requests for review from members of the public who believe that a state agency improperly denied a public records request made by that member of the public pursuant to the California Public Records Act. The bill would require the ombudsman to create a process to that effect, and would authorize a member of the public to submit a request for review to the ombudsman consistent with that process. The bill would require the ombudsman to make a determination on a request for review within 30 business days, and would authorize the ombudsman to require the state agency to disclose the record if the ombudsman determines that it was improperly denied. The bill would require the ombudsman to report to the Legislature, on or before January 1, 2021, and annually thereafter, on, among other things, the number of requests for review the ombudsman has received in the prior year. By expanding the duties of the California State Auditor’s Office, this bill would create an appropriation.
SECTION 1. Article 5 (commencing with Section 8549) is added to Chapter 6.5 of Division 1 of Title 2 of the Government Code, to read:
Article 5. California Public Records Act Ombudsman
8549. For purposes of this article, the following terms have the following meanings:
(a) “California Public Records Act” means the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1).
(b) “Member of the public” has the same meaning as defined in Section 6252.
(c) “Ombudsman” means the California Public Records Act Ombudsman created pursuant to this article.
(d) “State agency” has the same meaning as defined in Section 6252.
8549.1. (a) There is, within the California State Auditor’s Office, a California Public Records Act Ombudsman. The ombudsman shall receive requests for review from members of the public who believe that a state agency improperly denied a request made by that member of the public pursuant to the California Public Records Act.
(b) (1) (A) The ombudsman shall be appointed by the California State Auditor. The appointee shall have expertise in the California Public Records Act.
(B) In the event of a vacancy or if the ombudsman is unable to fulfil the duties of the ombudsman for a period of 30 days, the California State Auditor shall appoint a new ombudsman within 30 days.
(2) The California State Auditor shall provide necessary staff to the ombudsman to perform the functions and carry out the objectives of the ombudsman.
(c) (1) The ombudsman shall create a process that allows members of the public to request a review of a denial of a public records request by a state agency pursuant to the California Public Records Act.
(2) A member of the public who believes that a state agency improperly denied a public records request made by that member of the public may, in the form and manner prescribed by the ombudsman pursuant to paragraph (1), submit a request for the ombudsman to review that denial.
(3) (A) The ombudsman shall respond to a request to review a denial within 30 business days.
(B) If the ombudsman determines that the state agency improperly denied disclosure of the public record or records, the office of the ombudsman may require the state agency to provide the requesting member of the public the public record or records.
(4) A state agency that is the subject of a request to review shall provide the ombudsman access to all relevant information, documents, and other records that the ombudsman requires to make a determination on the request to review a denial.
(5) The ombudsman shall not disclose any records that are exempt from disclosure pursuant to the California Public Records Act.
(d) (1) On or before January 1, 2021, and every year thereafter, the ombudsman shall provide a report to the Legislature on all of the following:
(A) The activities of the ombudsman in the prior year.
(B) The number of requests to review that were submitted to the ombudsman in the prior year.
(C) Any proposals, both legislative and administratively, that would allow the ombudsman to function more independently and provide more transparency to state agencies, departments, offices and other entities.
(2) The report shall comply with Section 9795.
Image of Vince Fong is ©2019 MichaelKohlhaas.Org and then there’s this Vince Fong on Wikimedia.
