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.
Continue reading Senator Ben Hueso Introduced SB615 Yesterday — Would Gut California Public Records Act By Requiring Proof That Noncompliant Agencies Knowingly And Willfully Withheld Records — This Would Make It Extremely Difficult For Requesters To Recover Fees — Which Would Make It Extremely Difficult For Requesters To Hire A Lawyer — Which Would Decimate The Already Lousy Compliance Level