California bill would limit access to public records

from Yue Stella YuCalMatters

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In March, Assemblywoman Blanca Pacheco introduced a measure it would make it more expensive for Californians to obtain government documents.

Amid opposition from transparency advocates and concerns about public access by his own colleagues in the assemblyhowever, the Downey Democrat softened its proposal to simply give governments more time to respond to records requests, a change that allowed the measure to pass the Assembly in May.

Now it has brought back the controversial elements – and they are even more restrictive than before, drawing fierce opposition from transparency advocates.

The latest version of her proposal, Assembly Bill 1821would allow government agencies to delay responses to certain requests and charge at least $88 an hour to search and review records they deem “commercial use.”

Government agencies can also take requests to court if they believe someone is asking for the records for a malicious reason.

Pacheco told CalMatters that her measure aims to prevent a flood of frivolous records requests from local governments, especially requests generated by artificial intelligence.

for years local agencies claim that complying with extensive records requests burdens public workers and allows bad actors to overwhelm governments. In 2023, someone requested emails from Bay Area city officials to train an AI service they wanted to sell to local governments, said Donald Larkinattorney representing the League of California Cities, which supports the legislation.

“Transparency is important to me,” Pacheco said in an interview. “We just want it to work effectively and it’s just minor amendments or minor changes to the Public Records Act.”

But First Amendment advocates say state law already allows agencies to deny frivolous records requests on the grounds that they are “unduly burdensome.” Even when requests are legitimate, agencies routinely delaying their implementation or withhold records for months or years, triggering legal challenges.

Pacheco’s measure would create barriers that would chill the public from submitting requests, effectively gutting the state’s open records law and breaking the spirit of Californians constitutional right to government informationadvocates of transparency argue.

“The only way to have any government accountability is for the people to know what the government is doing,” said David Snyder, a former journalist and now executive director of the First Amendment Coalition.

“This looks very much like an attempt to avoid responsibility.”

The proposed changes would “make California stand out as the most secretive state in the country,” said David Quillier, a University of Florida journalism professor who serves on the Federal Freedom of Information Act’s advisory committee.

The blow of amendments angered many transparency advocates, who criticized Pacheco for revising her proposal only after it was approved by the Assembly.

The move prevailing in the Legislature “often results in poorly written bills with dangerous side effects, and AB 1821 now fits right into that category,” said Tracy Rosenberg, director of advocacy at the local watchdog group Oakland Privacy, which called the proposal “a virtual horror show of government opacity.”

Authority to adjudicate “malicious” claims

While many local governments across the country have sued – and largely lost — because of what they consider “vexatious” requests, California will be the first state to specifically allow agencies to sue for “malicious intent.” Requesters deemed malicious by the court will have to pay $88 an hour to obtain records.

Public agencies already use the courts to target requests they don’t like, and curbing that authority by writing it into law would encourage them to deny more requests, First Amendment advocates say.

“It would easily be weaponized by agencies seeking to thwart transparency and accountability, as has already happened elsewhere in the country,” Snyder said.

The threat of a lawsuit alone would “disincentivize candidates from making public requests,” said Shayla Natu, a senior staff attorney at the ACLU of Northern California, which also opposes the bill.

Pacheco dismissed the concerns, saying he doubted cities would sue very often because that would require them to go to court only to recover a limited amount of fees. But the provision would offer a tool just in case, she said.

“Hopefully this will curb bad actors,” she said. “I don’t expect this to slow down legitimate requests.”

“Scandalous” fees risk chilling public engagement

Advocates also criticized Pacheco’s fee proposal, arguing it would discriminate against requesters based on their use of the records. State law prohibits agencies restricting access to public records based on the target.

The measure would allow agencies to charge more for requests they believe support someone’s “commercial, commercial or profit” interests. This will exempt only a small group of people, such as academics, journalists and government agencies. Under current law, agencies can only charge for making copies of records, usually between them 10 to 50 cents page.

For the rest of the public, agencies can ask them to provide information “promptly” to prove intent and automatically treat those who don’t as commercial applicants. The bill does not include a standard for what is “immediate.”

“It’s so specific that it’s kind of hard to say what’s reasonable, what’s quick,” Pacheco said. “Most people will respond if a city asks, and then the city can get the person’s records.”

In an email, Pacheco spokeswoman Alina Evans told CalMatters that the assemblyman wants to prevent taxpayers from subsidizing “the cost of building or improving a private company’s commercial product.” But, she said, Pacheco would amend the measure to prevent every applicant from being forced to justify their claim.

Snyder said the language would give governments broad powers to play favorites — “to see why someone wants records and then potentially make decisions based on that.”

Those considered commercial would have to pay $22 an hour in “administrative fees” and $66 an hour in “professional fees” to search, review and edit the records, though the California Supreme Court already ruling in 2020 that such fees threaten Californians’ right of access.

That hourly rate would be “outrageous” and could easily become so burdensome that low-income Californians would stop filing altogether, Coulier warned.

Critics also slammed the measure for empowering agencies to decide how quickly they should respond to requests based on how people submit them.

Under current law, state agencies must respond to a request within 10 calendar days and extend the deadline for providing the records by no more than 14 calendar days. The law does not mandate a specific submission format, although many local and state agencies allow submissions through an online portal.

Pacheco’s bill would extend the time to 10 and 14 business days, respectively, but only if requests are submitted in person or by email during normal business hours.

Those requesting records by fax, mail or through an online portal will be left at the mercy of the agencies.

The initiative originated from one of Pacheco’s many trips sponsored by special interest groups last year, its spokeswoman Alina Evans told CalMatters in March. Last year, Pacheco reported receiving more than $45,000 in sponsored travel — the most of any California lawmaker — including a study tour to Spain, a golf tournament in Pebble Beach and a conference in Maui. When asked Wednesday, however, Pacheco said she did not recall who inspired her measure and said the idea came from multiple conversations with local officials.

The latest amendment reflects conversations Pacheco had with the League of California Cities, the California State Association of Counties, the city of Downey, municipal officials and several lawmakers on the Assembly Judiciary Committee, who approved a much narrower version of her proposal, Evans said.

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