Getting your
Trinity Audioplayer ready...The paper trail provides one of the most fundamental ways to monitor government agencies in California.
That’s why, in 1968, the Legislature passed, and then-Gov. Ronald Reagan signed, the state Public Records Act, the state’s version of the federal Freedom of Information Act.
California law contains extensive protection against the release of private records and information that would endanger ongoing police investigations. But, beyond that, the law generally and appropriately treats public agencies as open books.
The law declares that “access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.”
But just as the Trump administration has launched attacks on government transparency, so too are state and local officials in California trying to undermine access to public records.
Legislative assault
Assemblymember Blanca Pacheco, D-Downey, is leading the latest assault with the backing of groups like the California State Association of Counties and the League of California Cities.
Pacheco’s proposed legislation, AB 1821, would allow government agencies to charge steep fees — an “administrative fee” of $22.35 per hour and a “professional fee” of $66.26 per hour — for staff time finding records that are supposed to already be publicly available.
Until now, the law has been clear that agencies may generally only charge for copying costs (something that’s essentially unnecessary in this day of digital records). But Pacheco’s bill would allow the agency to delay fulfilling a request made with “malicious intent,” a phrase that is not defined in the legislation, and to seek a court order to impose the steep fees.
Let that sink in: Your government wants to be able to file a lawsuit against you for the mere act of submitting a records request it deems harmful or spiteful. It’s a horrible precedent. Public records should be made available in a timely manner and without charges to any member of the public or press, without examination of intent. For it should not be up to the members of a public agency, or a court, to determine who can access public records nor to judge their motives.
This is yet another version of the Trump administration’s weaponization of access denial to punish members of the press or public who are in disfavor.
The bill does not stop there. It would also allow charges for staff time if the records sought are for “commercial use,” defined as for a purpose “that furthers commercial, trade, or profit interests.”
That standard is so broad that it would apply to, say, a business owner who wanted to know the reason their building permit application was denied, or their license fees were going up.
And imposing charges for commercial use would create an absurd two-tier system of access. Could a renter, for example, receive information without charge about a property tax increase, but a landlord who has a profit interest could not?
The “malicious intent” fee could apply to anyone seeking public information. And, although the “commercial use” fee would not apply to educational institutions or members of the news media who can meet the bill’s definition, it would still stifle information for the public generally — especially because some of the most compelling news stories start with tips by members of the public inquisitive enough to check government records.
Existing protection
Public records and meetings should be just that: Public. Yet groups like those representing counties and cities annually push bad legislation trying to narrow access to records and public meetings. Worse, the staff of these organizations often act without their board’s knowledge. For example, for AB 1821, I surveyed four Bay Area members of the board of the California State Association of Counties to find out what they knew about it.
Supervisors John Gioia of Contra Costa and David Haubert of Alameda County were not familiar with the details of the bill. The CSAC board president, Susan Ellenberg of Santa Clara County, and vice president, Luis Alejo of Monterey County, declined to comment, referring my calls back to the counties association.
Yet the association they’re leading was working to undermine public access to public records their constituents should be able to see.
The county association argues that AB 1821 is needed because some humongous records requests seem designed to hamstring government agencies. I’m sympathetic with the problem. But the state Supreme Court for more than four decades has provided protection against abusive requests.
The high court in 1982 recognized the “public concern with the cost and efficiency of government,” and held that it is not “in the public interest” to “make it possible for any person requesting information, for any reason or for no particular reason, to impose upon a governmental agency a limitless obligation.”
In such cases, the court said in 2020, agencies can decline to process what the law calls “requests that place undue burdens on an agency.”
In other words, there’s already a solution in the law, supported by state Supreme Court rulings, that addresses the purported purpose of AB 1821. And there’s no need for this legislation that goes much further, undermining the transparency that the state Supreme Court has said is fundamental to our democracy.
“Implicit in the democratic process is the notion that government should be accountable for its actions,” the court said in 1986.
“In order to verify accountability, individuals must have access to government files. Such access permits checks against the arbitrary exercise of official power and secrecy in the political process.”
It’s time for local governments to stop trying to block that access.
Daniel Borenstein is editor-at-large for the opinion section.