Californians may have to pay more for public records under this bill

from Yue Stella YuCalMatters

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Want to know what your government is doing? Be prepared to pay.

A California state lawmaker wants to allow public agencies to charge an unspecified, unlimited fee if searching for records to fulfill a public records request takes workers more than two hours. The proposal raises concerns among transparency advocates that the fees could deter Californians from accessing the documents they are constitutionally entitled to.

Assembly Bill 1821assembly author Blanca PachecoD-Downey, also would allow the fee if state officials spend more than 10 hours in a month searching for documents requested by the same person. The proposal will apply to most people, with exceptions for journalists and educational or scientific institutions.

In a statement responding to questions from CalMatters, Pacheco said public agencies have had to take significant time to respond to a surge in the volume and scope of records requests.

“This bill is intended to address a narrow set of costly and resource-intensive requests that can delay agencies’ ability to respond to other records requests,” she said. “The goal is to ensure that agencies can continue to respond to all requests in a timely manner.”

The measure follows years of complaints from local authorities that processing extensive, sometimes duplicative records requests can take so much time that it distracts state personnel from other vital tasks, such as conducting health insurance eligibility checks, responding to homeless encampments or conducting elections.

“The growing volume and complexity of requests creates real challenges for local governments — straining limited public resources,” said Ben Adler, a spokesman for the California State Association of Counties, which has not taken an official position on the bill.

It becomes even more difficult for governments when someone “unhappy” or “unreasonable” submits requests maliciously, a lawyer representing public agencies in California wrote in a 2023 article.

Pacheco said in his statement that one person filed more than 100 records requests with the city of Fontana and stated that their goal was to disrupt the city’s operations, resulting in more than $300,000 in legal and personnel costs. Another request received in Chula Vista, she said, could require 150 to 300 man hours to complete.

“Requests of this size consume a disproportionate share of public resources and delay agencies’ ability to respond to other requests.”

But agencies are already trying to charge astronomical fees for public records, which has a chilling effect on the public’s right to know because “for most people … $100 is going to be too much,” said David Snyder, executive director of the First Amendment Coalition.

Applying the charge to most Californians threatens their constitutional right to government information, Snyder said.

“The California Constitution says this is a fundamental … right of everyone in this state to obtain records from their public agencies,” he said. “The basic principle is that the government’s records are the people’s records. The government serves the people, not the other way around.”

State law allows public agencies to charge fees for making copies of public records, but not for time spent searching, reviewing or editing them. In 2020The California Supreme Court concluded that governments cannot charge for searches and redactions and said such costs would undermine Californians’ right to access.

“Just as agencies cannot recover the costs of index searches for paper records, they cannot recover comparable costs for electronic records,” the ruling said. “Even if higher costs to the agency mean slower disclosure rates or greater inconvenience to the requester, these burdens on access are negligible if the alternative is no access at all.”

But several local governments tried to impose these fees anyway. Shasta Countyfor example, passed an ordinance in January 2021 to charge $25 an hour for staff to locate, review and edit records. A year later, Mendocino County established regulations for charging up to $150 an hour, in one case sending a local journalist 84,000 dollars bill. Both counties reversed their ordinances only after drawing widespread criticism and threats of litigation from journalists and First Amendment advocates.

Under Pacheco’s measures, they wouldn’t have to.

What is a “reasonable” fee?

The measure would require rates agencies to charge for records searches to be “reasonable.” But without a dollar amount cap, that railing is meaningless, Snyder said.

“If it’s a large volume of body camera footage, it can take many, many, many hours of time to review,” he said. “And if agencies are charging by the hour, say $100 an hour, you can see how those numbers can go up very quickly.”

The proposal also does not say who will determine what is a reasonable amount of time needed to search and review records, which could further give public agencies an opportunity to justify expensive fees, Snyder said.

“It leaves a huge range of variables at the discretion of the agency,” he said. “Many agencies unfortunately behave in a way that suggests their purpose is to withhold the requested records.”

The measure would also give agencies more time to respond and comply with requests: While state laws require agencies to tell a requester what can be disclosed within 10 calendar days and allow them to extend that period by no more than 14 calendar days, Pacheco’s measure would extend those periods to 10 and 14 business days, respectively.

Pacheco said he would amend the bill to ensure it is “narrowly tailored” to establish “appropriate thresholds” for charging for public records, though he did not specify what those thresholds would be.

Pacheco has pushed for several measures to limit disclosure requirements in recent years, including a law last year that made it easier agencies to redact police misconduct records and another that allows more government officials to withhold personal information.

This article was originally published on CalMatters and is republished under Creative Commons Attribution-NonCommercial-No Derivatives license.