Will a New Bill Weaken Public Records Act?

A state lawmaker from San Bernardino County and Attorney General Jerry Brown
have teamed to support a bill that newspaper industry officials and First
Amendment lawyers say could damage the state’s Public Records Act.

The bill, AB 520, was authored by Assemblywoman Wilmer Amina Carter
(D-Rialto) and has been officially sponsored by the attorney general.
If enacted as written, the legislation would allow government
institutions and agencies to seek out court orders against individuals
whom they have deemed to be abusing or harassing the given institution
or agency through improper or “vexatious” records act requests.

The legislation is scheduled to be heard April 28 by the Assembly’s Judiciary Committee.

According to Legislative Counsel, AB 520 (if enacted) would “authorize
a superior court to issue a protective order limiting the number and
scope of requests a requestor may make under the act. The bill would
require the court, in issuing the order, to determine that the
requester has sought records under the act for an improper purpose,
including, but not limited to, the harassment of a public agency or its
employees….”

Officials with the California Newspaper Publishers Association, the California First Amendment Coalition and Californians Aware
have all filed protests against the proposed law, saying it would have
a chilling effect on the legal rights of Californians to monitor the
operations of local and statewide government.

CNPA
officials added that if a court finds the requester has made a request
for “an improper purpose,” it could limit or eliminate an agency’s
duty to respond to requests in the future. “The Records Act has long
forbid an agency’s inquiry into a requester’s purpose for the records
for obvious reasons.

“Agencies
must never be allowed to determine whether or not to comply with a
request based on whether the request is for a use approved by the
agency (i.e., a good use). Courts are no better equipped to decide who
should and who should not receive public records based upon the
person’s purpose or use of the records (i.e., to affect public policy,
perform academic research, newsgathering, anti-corruption, business
planning, political, etc.),” CNPA officials said in a statement posted
on their website.

CalAware’s
General Counsel Terry Francke said he was mystified by the reasoning
behind the entire bill, let alone the Attorney General’s participation
in sponsoring it. In an April 8 letter to Carter, Francke said:

Perhaps
the Attorney General is aware of a case in which a court has found an
agency obliged to satisfy what it argued to be an abusive public
records request, but we are not. This appears to be an instance of
asking for a legislative solution to a problem never defined by
judicial decision. But even were there such case experience, the
ultimate principle arguing against AB 520 is that like the right of
speech itself, which under California law has exactly the same degree
of constitutional protection, the right to obtain information found in
public records is so fundamental to informed democracy that certain
expressions of that right, while they may be deplored as an excess of
license, must be tolerated as a cost of liberty. Not every person’s
request need or should be fulfilled, but no person should be taken to
court for asking.

But according to state Deputy
Attorney General Marc Le Forestier, evidence of such abuse —
admittedly a tiny percentage of all Records Act requests filed each
year — does exist.

Le
Forestier, who is supervising director of Brown’s legislative affairs
unit, said work on the bill began about a year ago. Since then the
Department of Justice sent out survey letters to state agencies asking
if they had encountered any kind of abuse or harassment via the act. Le
Forestier said about 30 agencies responded and of those department
lawyers isolated about half dozen incidents where abuse seemed apparent.

Le
Forestier said in one case a man filed a records act request that ended
up with the agency involved making copies of 20,000 documents. When the
agency was ready to release the documents the man never showed up to
pick them up. Another case of seeming abuse involved a person who made
174 separate requests of one agency over the course of a year. He
declined to name the requestors or the agencies involved, citing
attorney-client confidentiality.

Originally
scheduled to be heard by the Judiciary Committee today, Le Forestier
said the department wants to continue shaping and narrowing the
language of the bill before it is presented to the committee. That
said, Le Forestier said he believes that the bill has merit in that it
will force an agency to fully prove its case before an independent
superior court judge and that it will not be able to act independently
in shutting down a particular requester’s activities.

“This
is foremost a resources issue. It’s our job to present to lawmakers the
policy implications — pro and con,” Le Forestier said. “If they choose
not to act, that’s fine. If it’s to enact new law that will address the
issue of abuse, then that’s fine, too.”

For her part, Assemblywoman Carter said she sponsored the bill as a courtesy to Brown.

“The
sponsors of the bill asked me to introduce this bill as a courtesy.
Opposition arose, and now the sponsors are working with the opponents
of the bill to see, if in fact, there could be compromise language to
remove the opposition,” Carter said in a prepared statement released
late Monday afternoon. “If the opposition is removed, the bill will
move forward. If the opposition is not removed, the bill will be
dropped. That’s why the bill was put over to next week to see if this
can be accomplished.”

News
of AB 520 comes on the heels of recent public Record Act audits by
CalAware, CFAC, CNPA and its member newspapers. The audits revealed
that dozens of California governments and agencies failed to comply
with the law by wrongfully delaying or denying requests, demanding the
reasons for the requests and/or improperly charging fees far beyond
those authorized by the act.

Jeff Mitchell is a longtime California journalist and political observer. Find his politics blog at www.bapolitix.org.