California’s in danger of moving much of government out of the sunshine, according to critics of two budget-related bills awaiting the governor’s signature.
And that’s dangerous because other states less than enthusiastic about encouraging the public’s right to know may be encouraged to follow a similar course.
The “say adios” quote comes from columnist Jeff Mitchell, writing for TheCalifornian.com, who used it as the headline of a column describing the measures critics fear would allow local jurisdictions to essentially opt out of the state’s public records law.
Late last week, the California Legislature voted to approve a new state budget. It was on time and balanced, both minor miracles.
But without so much as a hearing or a “Hello, can I buy you a drink?” lawmakers screwed over their constituents by approving Senate Bill 71 and Assembly Bill 76 which contained off-the-wall 11th-hour language that, in its current form, will gut the California Public Records Act.
According to the Mercury News:
The proposed changes suggest local governments follow current law as a “best practice” but also allows them the option of ignoring transparency provisions by announcing annually that they will not follow them.
It also changes a major provision of the law about electronic records, stripping a requirement that governments release things like data bases and spreadsheets in the form they are kept, instead giving them the option of picking their own format, such as paper copies.
Ostensibly, the changes are designed to stop cash-strapped cities and special districts from demanding the state reimburse them for compiling the Public Records Act, the state’s transparency law signed in 1968 by Gov. Ronald Reagan,
But Ewert said no firm dollar amounts had been quantified and that he doubted any real cost reductions would be realized. One lawmaker agreed.
“It’s not about saving money — it’s all about curtailing an open, transparent government that can be held accountable,” said state Sen. Leland Yee, D-San Francisco. “The only way we’re held accountable is when the public has the information to understand what were doing.”
The First Amendment Coalition provided this summary:
How, exactly, will the budget trailer bill undercut the CPRA and set back open government?
1) Public access to data controlled by local governments, so important to open-data and big-data initiatives, will come to an end. The final trailer bill, SB 71, eliminates the requirement of existing law that agencies must make available “electronic” records or information in “any format” in which the agency already holds them. Gov Code sec. 6253.9(a)(1). Instead, according to SB 71, “the local agency may determine the format of electronic data to be provided in response to a request for information.”
This change will empower local governments to limit data access to situations in which the requested data will show government agencies and officials in a positive light. All other requests for data will be blocked by producing data in formats that are unusable in databases. Example: Requests for data held in .xls (Excel) or .csv formats will be produced (if at all) as .pdf files–even though the agency has the data in the requested formats and therefore can provide it in the requested formats at no cost.
2) Local governments, when denying written requests for public records, will no longer be required to give a reason for the denial. SB 71 purports to make that common sense requirement (found in Gov Code sec. 6255(b)) completely optional. What does optional mean? You can be sure that all lawyers for cities, counties or school boards,once they become aware of this change, will advise their clients to give no reasons for denying records.
3) Local governments may even take the position that SB 71?s changes free them from any obligation to communicate–at all!—with requesters about the status of a denied CPRA request. Agencies that believe requested records are exempt from disclosure could elect to say nothing to the requester, leaving him/her in the dark, unable to determine–without suing–whether the requested records will be disclosed or withheld.
Hawaii’s county governments have repeatedly gone to the legislature in the past seeking additional exemptions from the current sunshine law. It’s going to take push back from the public to prevent them from following California’s lead.