June 14, 2013 | By Dave Maass

Transparency in California Should Not Be Optional

This post has been updated and adapted to reflect the developing situation in Sacramento. Thanks to Californians Aware and the First Amendment Coalition for staying on it.

Update 2: AB 76 was passed by the legislature Friday evening, unbeknownst to many journalists and open-government advocates attempting to follow the vote. This explains why EFF's post predicted a vote on Saturday.   

The California legislature is close to suspending important provisions of the state’s public records act, giving local agencies the authority to unilaterally ignore procedures designed to ensure government transparency.

Senate Bill 71 and AB 76, which could be passed and sent to the governor's offiice on Saturday, would allow government bodies on the local level—such as cities, counties, sheriff’s departments and education systems—to choose whether or not to follow certain requirements under the California Public Records Act. These provisions would be downgraded from law to mere “best practices.”  Gone would be the deadlines for determining whether records are disclosable and notifying the member of the public who requested the records. Gone would be the requirement that agencies assist members of the public in identifying which records would answer their questions. Gone would be the mandate that agencies turn over documents in an electronic format if the records have already been digitized.

A local government wouldn’t even have to publicly disclose its records-disclosure policy in writing. The bills only say an agency must “announce orally” once a year if it decides not to follow the new “best practices.”

The impact on government watchdogs, journalists and the public—including EFFwould be profound. The legislation would create long waits for access to records, allow agencies to interpret requests narrowly (say, rejecting requests unless the citizen asks for a specific document), and leave the requesters waiting in limbo indefinitely as government agencies will have no incentive to be helpful. 

Further, it would create massive inconsistencies in policies across the state, making it difficult for members of the public to know what their rights are under the law. Because the opt-out announcement could be made orally, people may have to go back and listen to audio recordings of meetings to even find out if local officials decided to ignore the recommendations.

The state senate and assembly each passed separate versions of the legislation in May under the auspices that it would save the government money. So far no dollar figure has appeared in any public legislative analysis (meanwhile, the state's revenue has exceeded expectations by $4.5 billion).

Even if the change in law would save money on the front end (if anything, a drop in the bucket), taxpayers would pay a heavy price for it in the long haul: It could mark the end of the public’s ability to uncover wasteful spending, ineffective social and educational programs, foolish development projects, abusive practices by law enforcement, and political graft.  The agencies most likely to opt out of the best practices won’t be the ones with the tightest budgets, but the ones with the most to hide.

California has long had a strong commitment to government transparency. The California Public Records Act became law in 1968, just one year after the federal Freedom of Information Act, and recognizes that:

access to information concerning the conduct of the people's business is a fundamental and necessary right of every person in this state.

Californians even incorporated a right to government transparency into the state constitution by overwhelming majority vote in 2004. However, this proposed legislation would strongly undermine this important right.

As is it now, California’s public-records laws are inadequate. The State Integrity Project—a report-card-style study by the Center for Public Integrity, Global Integrity and Public Radio International—gave the state a D- in the terms of public access to information. The grade was based on a 75-percent mark for the legal right to access and a 47-percent for actual effectiveness.

If this measure is passed, we predict that failing grade will drop even lower.

This legislation runs in exactly the opposite direction that the government should be moving in terms of open government. Public access to records should be included as a standard part of the overhead of any government activity. EFF urges the state legislature to stand up for accountability and remove the public-records provisions from SB 71/AB 76 now or vote it down altogether. And if this land on his desk, Governor Jerry Brown should not hesitate to veto the anti-transparency measure buried in this budget.


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