The Electronic Frontier Foundation has pulled its support of a state bill to strengthen the California Public Records Act after the legislature gutted its most important reform: allowing courts to levy penalties against agencies that knowingly impede the public's right to access information.
A.B. 1479 had received near unanimous support when it was passed by the state Assembly and through the committee process in the Senate. Nevertheless, the legislature passed up the opportunity to come together in favor of sunlight and instead reduced the bill down to requiring agencies to appoint a "custodian of public records," a practice already employed by many agencies, including most municipalities through their city clerks.
Here's what we wrote in our letter announcing our new, neutral position:
The latest amendments to A.B. 1479 remove the provisions that would have allowed courts to levy fines against agencies that frustrate the public’s right to access records. Experience from other states has consistently shown that one way to meaningfully enforce these laws is by creating penalties for agencies that willfully disregard their legal duties.
The remaining provisions in A.B. 1479 would change the CPRA only slightly by requiring agencies to designate a custodian of public records. We do not oppose this proposal if it passes, but we do not believe that any member of the legislature should count it as a victory for transparency. Naming a point person for public records is a light reform that presents little burden for agencies and may be redundant in many jurisdictions. In our experience with filing records requests in California, most agencies already do identify a FOIA contact. In cities, this role is already fulfilled by city clerks. But even this basic “custodian of records” provision measure has a five-year trial period under the legislation.
The extreme watering down of the bill illustrates how little value the legislature places in enforcing Californians’ constitutional right “to information concerning the conduct of the people’s business” and the requirement that “the writings of public officials and agencies shall be open to public scrutiny.” Therefore, we cannot give our imprimatur to such a failure of accountability.
We believe our energy is better spent advocating for enforcement “teeth,” along with other efforts that would expand the types of records available to the public and adapt CPRA to match the changing technologies used for maintaining government records.
We thank the bill's author, Assemblymember Rob Bonta, for his courage in moving the legislation, and we urge him not to give up on this measure and to pursue it again next session.