AB1819 Passes Assembly — Now On To Senate — A Tiny But Essential Improvement To The California Public Records Act — Will Require Agencies To Allow Requesters To Copy Records At No Charge — Using Their Own Equipment — Includes Electronic Files — Take That, Department Of Alcoholic Freaking Beverage Control!

Assembly Bill 1819, which would require agencies to allow requesters to copy records using their own equipment at no charge, was unanimously passed by the Assembly yesterday and now it’s on to the Senate. As I wrote in March when the bill was introduced, most agencies already do this for paper records, although there are some which, in their frenzied desire to obstruct oversight by the very citizens they were created to serve, do not.

Most notable among these in my experience is the Department of Alcoholic Beverage Control which, in addition to being plagued by unchecked corruption, is also imbued with the kind of paranoiac institutional culture that enables heavily armed power junkies like Special Agent In Charge Gerry Sanchez of the Los Angeles Metro Office to feed their need to control by forbidding requesters to take photographs of records during the inspection process.

As amended the bill will also require local agencies to allow copying of electronic records using the requester’s own equipment unless to do so “would result in…[u]nauthorized access to the agency’s computer systems or secured networks by using software or any other technology capable of accessing, altering, or compromising the agency’s electronic records.”

This clause is much more consequential for my own work, as many, many, many business improvement districts, mostly under the baleful influence of Carol Humiston, the world’s angriest CPRA attorney, refuse to allow me to copy electronic records during inspection unless I pay them outrageous fees for expensive storage media.

Humiston designed this policy explicitly to impede access to records by driving up the costs, an illegal plan for which she is presently under investigation by the State Bar. Her BIDdies certainly can’t argue convincingly that use of the requester’s own equipment, e.g. a USB drive, WOULD result in compromised security (as opposed to MIGHT so result in some feverishly imagined world) this bill will likely put an end to Humiston’s illegal nonsense.

And interestingly this bill has drawn no significant opposition, not even from the California Downtown Association or other assorted BID fronts that habitually oppose even the mildest and most unobjectionable improvements in the Public Records Act.1 E.g. this year Todd Gloria’s AB 1184, which merely clarifies that existing state records retention law applies to emails.

Anyway, passing the Assembly unanimously is a good sign, and fingers crossed for the Senate. You’ll find no pre-hatch chicken counting around here, though. We saw in 2017 how determined coalitions of well-funded shadow-dwelling BIDdies can sink even very well-supported bills in the reconciliation process long after they’ve passed one house or another. Turn the page for a transcription of selections from the Assembly floor analysis of the bill.

While most public agencies do not interfere with a person who merely wishes to photograph a record, others insist that the requester must wait to obtain a copy and pay the agency to produce it. Also, despite the clear requirements and timelines of the California Public Records Act (CPRA), some agencies may delay providing copies of public records, or interfere with the public making their own copies of records in a free and unobtrusive manner, such as by taking a photograph of a record with a cell phone.

This bill minimizes the administrative burden on public agencies of allowing copying on their premises by explicitly authorizing agencies to impose some limits on the ability of a requester to use their own equipment to make copies of records. The bill would merely clarify the CPRA to ensure that a member of the public has a right to copy a public record with their own equipment, as long as copying the record would not cause damage to the record, or allow unauthorized access to the agency’s computer systems or electronic records. In addition, the bill specifies that an agency may impose reasonable limits on the use of the requester’s equipment that are necessary to protect the safety of the records or to prevent the copying of records from being an unreasonable burden to the orderly function of the agency and its employees. In addition, the bill allows an agency to impose any limit on copying that is necessary to maintain the integrity of certain fragile or sensitive records—such as historic or high-value documents—including by prohibiting the use of equipment that could cause long-term harm to those records. This language provides reasonable guidance to both agencies and the public about the circumstances that justify limits on the right of the public to make copies of records with their own equipment.

According to the Author:

This commonsense bill merely clarifies that a member of the public has a right, under the California Public Records Act, to make a copy of a public record on the premises of the agency by using their own equipment and without paying a fee.

Arguments in Support:

The California News Publishers Association (CNPA) writes:

In recent years, though, state and local agencies have turned the CPRA’s fee provision on its head. They have used the cost provision to delay and obstruct public access to information where no CPRA exemption would allow it to otherwise be withheld. This approach operates as a barrier to access government held information and especially targets as a source of revenue small newspapers and members of the public that are economically disadvantaged. … In this day and age when every person has a cell phone camera in their pocket, there is no reason why journalists on deadline should not be able to use their phones to make a copy of a public document for a story they are working on and be on their way.

Arguments in Opposition:
The California Historical Records Advisory Board (Board) removed its opposition after the latest amendments to the bill.

  1. The California Historical Records Advisory Board previously opposed unless amended because they were worried about damage to irreplaceable historical records. The bill was amended to allow this kind of damage to forestall copying.

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