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Will a New Bill Weaken Public Records Act?

by Indy, published

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.

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