Public Records Bill Would Make California The ‘Most Secretive’ State In The US

from the using-the-public’s-money-to-shortchange-the-public dept

There aren’t many governments out there actually trying to be more transparent. Every so often, a law gets passed that benefits the public more than its benefits the government, but these are the exceptions, not the rule.

California experienced one of these anomalies fairly recently. In 2019, a law was passed that finally made police misconduct records public records. They were no longer something simply buried in PD filing cabinets until they could be destroyed. They became presumptively public, putting the burden on the government to explain refusals to relinquish records.

The law enforcement wing of California’s government was less than pleased. As soon as it became apparent the bill had a good chance to become law, law enforcement agencies began destroying records. After its passage and enactment, the state’s Attorney General began pretending the law wasn’t retroactive and the state itself was sued by police unions. The law still stands and police agencies hoping to keep these records out of the public’s hands have been shut down repeatedly at multiple levels of the court system.

Now, the state is poised to take a big step backwards in terms of transparency, thanks to the efforts of a legislator whose bill doesn’t even have the support of her own party. In March, Assembly member Blanca Pacheco introduced a bill that would have erected a significant paywall for public records, with the obvious intent of deterring records requests.

After running into internal and external opposition, Pacheco performed a legislative head-fake:

Amid opposition from transparency advocates and public access concerns from her own Assembly colleagues, though, the Downey Democrat diluted her proposal to simply give governments more time to respond to records requests, a change that allowed the measure to sail through the Assembly in May. 

Now that it’s gotten over this initial legislative hurdle, Pacheco is turning her proposal back into the one she really wants — the one that couldn’t pass without being stripped of its objectionable clauses.

Now, she’s brought the controversial elements back — and they are even more restrictive than before, drawing fierce opposition from transparency advocates.

The latest version of her proposal, Assembly Bill 1821, is co-written by the League of California Cities and the California State Association of Counties. It would allow government agencies to delay responding to certain requests and to charge $22 to $66 an hour to search for and review the records they deem are for “commercial use.” 

Government agencies could also take requests to court if they believe someone is asking for the records for a malicious reason. 

Pacheco says this is nothing more than some needed “minor amendments or minor tweaks” meant to prevent government agencies from being “inundated” by records requests, “especially” those “generated by artificial intelligence.”

But that’s just one of several explanations given by Pacheco. She also says the new fee structure is meant to prevent taxpayers from “subsidizing” public records requests made by commercial entities. She also claims several discussions with local governments prompted this effort, as well as stuff she learned while she was enjoying paid-for trips to multiple tourist destinations for the ostensible purpose of getting better at legislating.

The initiative originated from one of Pacheco’s many trips sponsored by special interest groups last year, her spokesperson, Alina Evans, told CalMatters in March. Last year, Pacheco reported receiving more than $45,000 in sponsored travel — the most of any California lawmaker — including a study tour in Spain, a golf tournament in Pebble Beach and a conference in Maui. When asked Wednesday, however, Pacheco said she did not remember which one inspired her measure and said the idea came from multiple conversations with local governments. 

While I can absolutely believe most government agencies would prefer to handle fewer public records requests, public records request laws are supposed to benefit the public that pays for all of this, not the agencies that are supposed to serve the public.

Pacheco claims these are minor tweaks. The mandatory fees ($22 to $66 an hour) and giving agencies more options to sue records requesters aren’t small adjustments. They’re changes that will lead to exactly what so many government agencies want: fewer requests, more opacity, and a whole lot of leeway when it comes to responding.

Pacheco’s measure would create barriers that would chill the public from filing requests, effectively gutting the state’s open records act and violating the spirit of Californians’ constitutional right to government information, transparency advocates argue. 

“The only way that there’s any government accountability is that people know what the government is doing,” said David Snyder, a former journalist and now the executive director of the First Amendment Coalition.

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[C]alifornia would be the first state to explicitly allow agencies to sue for “malicious intent.” Requesters the court deems malicious would have to pay an hourly fee to obtain records to compensate agencies for their time. 

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“It would be easily weaponized by agencies seeking to thwart transparency and accountability, as has already happened elsewhere in the country,” Snyder said.

The threat of a lawsuit alone would “chill requesters from submitting public requests,” said Shaila Nathu, a senior attorney with ACLU of Northern California, which also opposes the bill. 

Governments (including those in California) are already allowed to reject requests they deem “burdensome” or “vexatious.” They’ve always been able to go to court to justify refusals to release records. This addition gives California agencies a new offensive weapon in the war on transparency.

On top of this, the proposal would allow agencies to take however long they want to respond to requests. Most requests are now handled through online portals, but the 10-14 day timeline for request responses would now only apply to requests “made in person” or via email during “normal business hours.” It seems like a small thing, but in practice would allow agencies to ignore a large majority of records requests indefinitely.

The bill is still a few steps away from landing on the governor’s desk. But beyond a few people in government agencies who think the public has too much power, Pacheco seems to be on her own here. With any luck, it will remain that way and this terrible proposal will become something else that can be ignored indefinitely. But never underestimate the government’s constant trend towards opacity. It takes periodic resets to set it back on the road towards accountability. This is nothing more than Pacheco crafting an off-ramp, and being urged on (mostly secretly) by agencies who love the public’s money, but feel they owe nothing to the public in return for their paychecks.

Filed Under: 1st amendment, accountability, blanca pacheco, california, free speech, public access, public records, transparency