The California bill would keep high-speed rail records private

from Yue Stella YuCalMatters

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The auditor of California’s high-speed rail authority wants the authority to keep certain records confidential, raising concerns from transparency advocates that the agency could hide vital information about a controversial and expensive public infrastructure project from the public.

Assembly Bill 1608author of the chairman of the committee on transportation of the assembly Laurie Wilsonwould allow the inspector general overseeing the high-speed rail authority to withhold records that the official said would “reveal weaknesses” that could harm the state or improperly benefit someone.

The bill would also prevent the release of internal discussions and “personal documents and correspondence” if the person involved submits a written request to keep their records confidential.

The legislation appears to have the blessing of Gov. Gavin Newsom, whose administration has released an almost identical one budget trailer bill — a means for the governor and legislative leaders to pass major reforms quickly with minimal public input — on Monday. The language in both proposals comes from the inspector general’s office, said H.D. Palmer, a spokesman for the state Treasury Department.

The High Speed ​​Rail Authority’s Office of the Inspector General, which audits, monitors and makes policy recommendations to the Authority, was formed in 2022 after Assembly Democrats held bullet train funding hostage in exchange for increased oversight.

The rail line, intended to connect San Francisco and Los Angeles, was approved by voters in 2008. At the time, it was estimated to cost $33 billion and be completed by 2020. Now valued at more than $100 billion, only a 171-mile segment connecting Merced and Bakersfield is slated for completion by 2033.

The project’s delays and ever-increasing cost have frustrated both Democrats and Republicans. Former Assembly Speaker Anthony Rendon, a Los Angeles Democrat who withheld funding in 2022, said at the time that there “no confidence” in the project. U.S. Rep. Kevin Kiley, R-Rocklin, fiercely criticized it as a waste of money and introduced legislation to gut federal funding for him.

Wilson, a Suisun City Democrat and former county auditor, said her bill would empower the inspector general’s office and protect it from public records requests for sensitive data, such as whistleblower identities, details of fraud, documents related to pending litigation and records of security risks. High-speed rail officials often don’t turn over sensitive records to the watchdog agency for fear the agency will be forced to provide them, forcing the inspector general’s office to jump through hoops to get information for audits, she argued.

“The only way we can achieve the level of transparency and accountability that the Legislature requires is to make sure that our (office of inspector general), which is technically the eyes and ears of the public … has every protection that it needs to be able to do the full dive unimpeded,” Wilson said in an interview with CalMatters last week.

Palmer echoed Wilson’s point, arguing that the governor’s proposal is intended to allow the inspector general’s office to “communicate sensitive findings to outside bodies that are in a position to take corrective action.”

But some good-government groups see the measure as offering blanket power to the inspector general’s office to withhold anything it doesn’t want to reveal.

“This is a wholesale atomic bomb,” said Chuck Champion, president of the California News Publishers Association.

And the measure is drawing opposition from Republicans, who already see the project as a failure. MP Alexandra Macedoa Visalia Republican, said it was “insulting” that the project started when she was in middle school and remains far from complete. She called the empty concrete high-speed rail structures in her area a “modern-day Stonehenge.”

“As far as I’m concerned, every ounce of this project should be available for public use and should be presented factually and fully to the entire legislature,” she said.

Officials from the High-Speed ​​Rail Authority and the inspector general overseeing it declined CalMatters’ request for comment. Newsom’s office also did not respond to questions from CalMatters.

The bill is the latest in a series of legislative attempts to protect documents and agencies from the public. Last year, lawmakers passed laws that loosened public meeting requirements for various groups, from local authorities to research review organizationsand released insurers not have to disclose information they report to the legislature. State Treasurer Fiona Ma sponsored a measure to create a new infrastructure agency in her office while exempting much of its operations from public disclosure, a bill that was ultimately watered down and killed last year.

California’s public records law, which applies to all state and local agencies except the state Legislature and the judiciary, already exempts the disclosure of various kinds of sensitive information that Wilson aims to protect, said Ginny LaRow, director of advocacy at the First Amendment Coalition, which defends press freedom and transparency.

For example, state law widely allows agencies to withhold records when they believe they serve the public interest. There are also specific protections for preliminary designs and internal discussions, trade secrets and documents related to pending litigation involving a public agency that are subject to disclosure after the resolution of a lawsuit.

But interpreting the public records law would take away much of the inspector general’s capacity, said Wilson’s chief of staff, Taylor Woolfork.

“The intent of the bill is for this small oversight body to concentrate on generating meaningful reports that strengthen the high-speed rail program, not to divert limited resources to interpreting complex CPRA issues or defending disclosure decisions in court,” he said in an email.

While Woolfork acknowledged existing exemptions for the agency in the public records law, he said it does not go far enough to protect the inspector general’s office. Under current law, if the high-speed rail authority is sued, the inspector general’s office could be required to provide information because the agency itself is not being sued, he said.

Both proposals would allow people who communicate with the inspector general’s office to remain confidential as long as they file a written request, a practice in laws that govern the state auditor’s office and inspectors general at other agencies, such as the state departments of transportation and corrections and rehabilitation.

“If any project should have intense transparency and scrutiny, it’s high-speed rail.”

Chuck Champion, president of the California News Publishers Association

But the decision to withhold that information should be based on a set of “objective legitimate criteria … independent of anyone’s personal desires,” LaRow said.

“A whistleblower . . . may understandably be afraid to come forward with important information about waste, fraud or abuse, but that does not mean they should be able to unilaterally control what the public has access to.”

LaRoe also opposed allowing the inspector general to protect information because of potential “weaknesses” such as “information security, physical security, controls to detect fraud or pending litigation” — language that CalMatters could not find anywhere else in state public records access laws.

“I could see an agency refusing to release information because it’s embarrassing because it shows weakness,” LaRow said. “Too often we see agencies interpret words in ways that end up protecting people or decisions that maybe seem inconvenient or inconvenient or create controversy.”

Asked about the language, Wilson said he expected the proposal to be “refined” through the legislative process. “We thought it was a good starting point,” she said.

But it’s troubling any time lawmakers seek to further shield public agencies from disclosure requirements — especially a watchdog agency overseeing such a controversial project, LaRow and Champion said.

“If any project should have intense transparency and scrutiny, it’s high-speed rail,” Champion said. “That project was a Jump Street disaster. And what else is out there that we haven’t discovered yet that they could slip into that loophole?”

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