State Senator Ricardo Lara (D, LB-Bell Gardens) As Chair Of Sen. Appropriations Committee, Blocked Bill Text That Would Have Let Courts Fine Gov't Bodies ($1,000-$5,000) If/When They Unreasonably Fail To Comply With Public Records Act '

' State Senator Ricardo Lara (D, LB-Bell Gardens) As Chair Of Sen. Appropriations Committee, Blocked Bill Text That Would Have Let Courts Fine Gov't Bodies ($1,000-$5,000) If/When They Unreasonably Fail To Comply With Public Records Act '

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State Senator Ricardo Lara (D, LB-Bell Gardens) As Chair Of Sen. Appropriations Committee, Blocked Bill Text That Would Have Let Courts Fine Gov't Bodies ($1,000-$5,000) If/When They Unreasonably Fail To Comply With Public Records Act

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(Sept. 8, 2017, 8:10 p.m.) -- State Senator Ricardo Lara (D, Long Beach-Bell Gardens), in his capacity as chair of the state Senate Appropriations Committee, effectively prevented the advance of a key provision in AB 1479 by Assemblyman Bob Bonta (D, Oakland-Alameda-San Leandro) that would have let courts assess a $1,000-$5,000 fine on government bodies if/when they unreasonably fail to comply with requirements of the CA Public Records Act.

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When it included that provision, AB 1479 was supported by (among others), the First Amendment Coalition which pointed out:

[First Amendment Coalition text] One of the most frequent complaints FAC hears from people seeking records under the California Public Records Act (CPRA) is that government agencies simply ignore the law’s requirement that the government respond to a request within a certain time frame. One reason government agencies do this is that there is very little cost to doing so: Although strict timelines are mandated by the CPRA, that law provides no specific penalties for delay. Assembly Bill 1479 [would have imposed] monetary penalties on agencies that unreasonably delay in responding to requests [and] for "unreasonable" fees charged to records.

AB 1479 was also supported by the CA Mewspaper Publishers Association and the Electronic Frontier Foundation.

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AB 1479 passed two Assembly Committees (including the Assembly's Appropriations Committee) and passed the full Assembly. It cleared state Senate Judiciary Committee but when it reached the Senate Appropriations Committee -- which can block or send measures to the full state Senate -- chair Lara announced that the Committee's action on AB 1479 was "do pass as amended."

The "amendment" gutted the key provision of AB 1479 that would have enabled a court to impose a $1,000-$5,000 fine on a government agency that withheld a public record clearly subject to disclosure, or unreasonably delayed providing the contents of a record subject to disclosure, or charged a requester an unreasonable or unauthorized fee, or otherwise didn't act in good faith under the Public Records Act.

Below is the "red lined" (deleted) text stripped from the bill.

It was a 7-0 Senate Appropriations Committee voted action, meaning Committee Repubs (in the minority) joined with Committee Dems (in the majority) to approve the "do pass as amended" action. In its gutted form, AB 1479 passed in the state Senate 39-0. It will now return to the Assembly -- which it passed in late May with its penalty-fine provision still intact -- for a concurrence vote in the Senate amendments.

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Invited by LBREPORT.com to provide Senator Lara's reasons for doing what he did, Sen. Lara's Communications Director, Michael Soller, told LBREPORT.com:

"The Appropriations Committee made amendments to reduce costs to state and local public agencies related to paying out awards and costs for attorneys to litigate claims. Civil penalties would have been awarded to the person or entity bringing the lawsuit, which would create a perverse incentive to bring litigation and would likely lead to more claims and lawsuits."

Spokesman Soller noted that the Department of Finance [Governor Brown's office] had taken the position that "The provision allowing for civil penalties could, in aggregate, become very costly for the state. It is also unclear what $1,000 to $5,000 in monetary damages would do to make plaintiffs whole, after they have already received a court order directing the release of the requested records and recouped all costs and fees."

The "amendment" added in Senator Lara's Appropriations Committee caused the Electronic Frontier Foundation to withdraw its support of AB 1479 and change its position to "neutral." It issued this statement,

[Electronic Frontier Foundation statement] 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, Assembly member 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.

CA Newspaper Publisher Ass'n website states, "Despite CNPA’s concerns, [AB 1479] was amended to include a provision that makes it virtually impossible for a judge to levy the penalty. CNPA has since removed its support."

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The League of CA Cities, which had opposed AB 1479, switched to a "neutral" position on July 18 after the author added text allowing a court to award costs and reasonable attorney fees to a government agency against a plaintiff if the plaintiff's case is "clearly frivolous."

The City of LB took no public position on AB 1479.

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