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LEGISLATION COMMITTEE

Meeting Date:	03/14/2016
Subject: AB 1707 (Linder) Public Records Act Request Responses
Submitted For:	LEGISLATION COMMITTEE
Department:	County Administrator
Referral No.:	2016-09
Referral Name:	AB 1707 (Linder) Public Records Act Request Responses
Presenter:	Lara DeLaney	Contact:	L. DeLaney, 925-335-1097

Information

Referral History:

This bill was referred to the Legislation Committee by Clerk of the Board Jami Napier.

The California Association of Clerks and Election Officials' (CACEO) Clerk of the Board Legislative Committee recently voted to OPPOSE AB 1707. The members were not concerned about adding the requirement that an agency respond in writing to even an oral CPRA request when a record or portion of a record is withheld, since the bill appears to reflect current practice in many or most member counties.

However, the members were very concerned that the bill would impose an unreasonable burden upon clerks and county counsels who would have to create a "privilege log" when responding in writing to a request in which records and portions of records are withheld. As one member of the Committee pointed out, the bill also would be precedent-setting in the CPRA in that it would require agencies to create a new record that does not currently exist. This view seems consistent with some county counsels' reading of the bill.

This legislation could also increase the difficulty in responding to record requests and could increase exposure to litigation (with potential for attorney fee awards). Even more important, there is a belief by some that it would not assist the public requesting records (except to aid in their litigation) or otherwise make privileged documents disclosable.

Referral Update:

Assembly Bill (AB) 1707 (Attachment A) would require a response to a written request for public records be in writing regardless of whether the request was in writing. The bill would require that written response additionally to include a list that contains the title or other identification of each record requested but withheld due to an exemption and the specific exemption that applies to that record. Because local agencies would be required to comply with this new requirement, this bill would impose a state-mandated local program.

Attachment B is the letter from the California State Association of Counties (CSAC) to the author, opposing the bill.

Status: 02/25/2016 To ASSEMBLY Committee on JUDICIARY.

Background:

The California Public Records Act requires state and local agencies to make public records available for inspection, unless an exemption from disclosure applies. The act requires a response to a written request for public records that includes a denial of the request, in whole or in part, to be in writing.

This bill instead would require that response to be in writing regardless of whether the request was in writing. The bill would require that written response additionally to include a list that contains the title or other identification of each record requested but withheld due to an exemption and the specific exemption that applies to that record. Because local agencies would be required to comply with this new requirement, this bill would impose a state-mandated local program.

The California Constitution requires local agencies, for the purpose of ensuring public access to the meetings of public bodies and the writings of public officials and agencies, to comply with a statutory enactment that amends or enacts laws relating to public records or open meetings and contains findings demonstrating that the enactment furthers the constitutional requirements relating to this purpose.

The people of the State of California do enact as follows:

SECTION 1. Section 6255 of the Government Code is amended to read:

6255. (a) The agency shall justify withholding any record by demonstrating that the record in question is exempt under express provisions of this chapter or that on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.

(b) A response to ~~a written~~ any request for inspection or copies of public records that includes a determination that the request is denied, in whole or in part, shall be in writing. That written response also shall include a list that contains both of the following:

(1) The title or other identification of each record requested but withheld due to an exemption.

(2) The specific exemption that applies to that record.

SEC. 2. The Legislature finds and declares that Section 1 of this act, which amends Section 6255 of the Government Code, furthers, within the meaning of paragraph (7) of subdivision (b) of Section 3 of Article I of the California Constitution, the purposes of that constitutional section as it relates to the right of public access to the meetings of local public bodies or the writings of local public officials and local agencies. Pursuant to paragraph (7) of subdivision (b) of Section 3 of Article I of the California Constitution, the Legislature makes the following findings:

Because the people have the right of access to information concerning the conduct of the people's business, requiring local agencies to provide a written response to any request for public records that is denied and to include in that response a list of each record being withheld due to an exemption from disclosure and the specific exemption that applies furthers the purposes of Section 3 of Article 1.

SEC. 3. No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district under this act would result from a legislative mandate that is within the scope of paragraph (7) of subdivision (b) of Section 3 of Article I of the California Constitution.

Recommendation(s)/Next Step(s):

CONSIDER recommending to the Board of Supervisors a position of "Oppose" on AB 1707 (Linder), as introduced: Public Records: Response to Request, as recommended by the Clerk of the Board Jami Napier.

Attachments
Attachment A - AB 1707 bill text
Attachment B: CSAC Oppose