Legislation that would dramatically undermine Californians\u2019 right to know \u2014 and therefore undermine local democracy \u2014 could be on the threshold of becoming law if enough legislators and members of the public don\u2019t stand up to stop it.<\/p>\n
Assembly Bill 1821 by Assemblywoman Blanca Pacheco (D-Downey) is perhaps unique in its aggressive, omnibus approach to making it harder for the public to know what the government is doing. Late-session amendments dropped on the public just days ago have transformed the California Public Records Act bill from merely objectionable in April to a five-alarm fire of a threat to basic government transparency.<\/p>\n
AB 1821 hits Californians\u2019 constitutionally protected right to know on multiple fronts. It would make access to public records more expensive. It would also allow government to delay longer before responding \u2014 or to not respond at all if requesters don\u2019t submit requests in exactly the \u201cdesignated\u201d manner. It would allow the government to inquire into the identity of requesters and the purpose of their request \u2014 inquiries that for decades have been strictly verboten under California law.<\/p>\n
Perhaps most troublingly, AB 1821 would allow any state or local agency to sue members of the public for the simple act of filing a public records request. This provision alone, which would essentially overturn decades of case law making clear that government cannot preemptively sue requesters, will have a crippling chilling effect: If you knew that by simply filing a public records request, you could be hauled into court and forced to hire a lawyer, wouldn\u2019t you think twice? The prospect of being sued for merely asking for public records would make government dramatically less transparent.<\/p>\n
Under the bill, all an agency would need to do to bring a requester to court is decide their records request was made with \u201cmalicious intent.\u201d AB 1821 at present does not define \u201cmalicious intent,\u201d but even if it were amended to do so, agencies would have wide latitude to subject disfavored requesters, political opponents or reporters uncovering malfeasance to litigation and all the delays and costs that entails.<\/p>\n
Under current California law, the only cost agencies can bill to the public is the \u201cdirect cost of duplication,\u201d with some exceptions for fees previously set by the Legislature in limited, specific circumstances. We see too often how those fees already serve as a transparency tax, pricing people out of public records. AB 1821 would drastically alter this longstanding law, allowing agencies to bill \u201ccommercial requesters\u201d an \u201cadministrative fee\u201d of $22.35 per hour and a \u201cprofessional fee\u201d of $66.26 per hour to perform the search, review and processing functions our taxpayer dollars are already paying for. This will make the cost of receiving records easily grow into the thousands of dollars in many instances \u2014 far more than most people can afford.<\/p>\n
Specific groups would be exempt from the \u201ccommercial requesters\u201d designation \u2014 including certain members of the news media if they can prove their status under a restrictive definition \u2014 and \u201ceducational or noncommercial scientific institutions whose purpose is scholarly or scientific research.\u201d But these exceptions would inevitably be unevenly and improperly applied, would invite agencies to interrogate requesters and would ultimately chill requests before they were even fulfilled by hitting requesters with huge bills.<\/p>\n
Most notably, this fee structure would make it difficult if not impossible for requesters to ask for records anonymously, and to be free from inquiries about the purpose of their request. Both of these are rights long enshrined in California law to prevent the politicization of access to records.<\/p>\n
Pacheco, the bill author, backed by groups with the government-agency lobby, including the California State Assn. of Counties and the California League of Cities, describes extremely onerous requests as the reason these dramatic changes to the public\u2019s right of access are necessary. But existing law already provides ample tools for responding to burdensome requests. The California Supreme Court has long recognized that agencies may lawfully decline to process requests that place an undue burden on public resources. Government entities could also simplify the process by posting frequently requested records online and referring requesters to the relevant website, and they are directed under the existing California Public Records Act to help requesters make more focused requests \u2014 work that would reduce the burdens for all.<\/p>\n
The right to know is the oxygen of all our other rights, for without knowing what the government is doing, it is impossible to protest government action, to mobilize change, to vote elected officials out of office based on fact rather than lies and innuendo.<\/p>\n
This bill would cut that flow of oxygen at exactly the wrong time. California state government officials have taken a lead nationally in decrying abuses of power, including serious failures of government transparency, by the Trump administration. The Legislature should reject this effort to hamstring transparency and accountability in its own back yard.<\/p>\n
Two Los Angeles-area state senators, Maria Elena Durazo (D-Los Angeles) and Ben Allen (D-Santa Monica), should play a key role in scuttling this terrible bill by voting \u201cno\u201d when it comes before the Senate Judiciary Committee on June 30.<\/p>\n
David Snyder is the executive director of the First Amendment Coalition, a California nonprofit that works to advance free speech, a free press and a more open and accountable government.<\/p>\n