A state lawmaker from San Bernardino County and Attorney General Jerry Brownhave teamed to support a bill that newspaper industry officials and FirstAmendment lawyers say could damage the state's Public Records Act.
The bill, AB 520, was authored by Assemblywoman Wilmer Amina Carter(D-Rialto) and has been officially sponsored by the attorney general.If enacted as written, the legislation would allow governmentinstitutions and agencies to seek out court orders against individualswhom they have deemed to be abusing or harassing the given institutionor agency through improper or "vexatious" records act requests.
The legislation is scheduled to be heard April 28 by the Assembly's Judiciary Committee.
According to Legislative Counsel, AB 520 (if enacted) would "... authorizea superior court to issue a protective order limiting the number andscope of requests a requestor may make under the act. The bill wouldrequire the court, in issuing the order, to determine that therequester has sought records under the act for an improper purpose,including, but not limited to, the harassment of a public agency or itsemployees...."
Officials with the California Newspaper Publishers Association, the California First Amendment Coalition and Californians Awarehave all filed protests against the proposed law, saying it would havea chilling effect on the legal rights of Californians to monitor theoperations of local and statewide government.
CNPAofficials added that if a court finds the requester has made a requestfor "an improper purpose," it could limit or eliminate an agency'sduty to respond to requests in the future. "The Records Act has longforbid an agency's inquiry into a requester's purpose for the recordsfor obvious reasons.
"Agenciesmust never be allowed to determine whether or not to comply with arequest based on whether the request is for a use approved by theagency (i.e., a good use). Courts are no better equipped to decide whoshould and who should not receive public records based upon theperson's purpose or use of the records (i.e., to affect public policy,perform academic research, newsgathering, anti-corruption, businessplanning, political, etc.)," CNPA officials said in a statement postedon their website.
CalAware'sGeneral Counsel Terry Francke said he was mystified by the reasoningbehind the entire bill, let alone the Attorney General's participationin sponsoring it. In an April 8 letter to Carter, Francke said:
Perhapsthe Attorney General is aware of a case in which a court has found anagency obliged to satisfy what it argued to be an abusive publicrecords request, but we are not. This appears to be an instance ofasking for a legislative solution to a problem never defined byjudicial decision. But even were there such case experience, theultimate principle arguing against AB 520 is that like the right ofspeech itself, which under California law has exactly the same degreeof constitutional protection, the right to obtain information found inpublic records is so fundamental to informed democracy that certainexpressions of that right, while they may be deplored as an excess oflicense, must be tolerated as a cost of liberty. Not every person'srequest need or should be fulfilled, but no person should be taken tocourt for asking.
But according to state DeputyAttorney General Marc Le Forestier, evidence of such abuse --admittedly a tiny percentage of all Records Act requests filed eachyear -- does exist.
LeForestier, who is supervising director of Brown's legislative affairsunit, said work on the bill began about a year ago. Since then theDepartment of Justice sent out survey letters to state agencies askingif they had encountered any kind of abuse or harassment via the act. LeForestier said about 30 agencies responded and of those departmentlawyers isolated about half dozen incidents where abuse seemed apparent.
LeForestier said in one case a man filed a records act request that endedup with the agency involved making copies of 20,000 documents. When theagency was ready to release the documents the man never showed up topick them up. Another case of seeming abuse involved a person who made174 separate requests of one agency over the course of a year. Hedeclined to name the requestors or the agencies involved, citingattorney-client confidentiality.
Originallyscheduled to be heard by the Judiciary Committee today, Le Forestiersaid the department wants to continue shaping and narrowing thelanguage of the bill before it is presented to the committee. Thatsaid, Le Forestier said he believes that the bill has merit in that itwill force an agency to fully prove its case before an independentsuperior court judge and that it will not be able to act independentlyin shutting down a particular requester's activities.
"Thisis foremost a resources issue. It's our job to present to lawmakers thepolicy implications -- pro and con," Le Forestier said. "If they choosenot to act, that's fine. If it's to enact new law that will address theissue of abuse, then that's fine, too."
For her part, Assemblywoman Carter said she sponsored the bill as a courtesy to Brown.
"Thesponsors of the bill asked me to introduce this bill as a courtesy.Opposition arose, and now the sponsors are working with the opponentsof the bill to see, if in fact, there could be compromise language toremove the opposition," Carter said in a prepared statement releasedlate Monday afternoon. "If the opposition is removed, the bill willmove forward. If the opposition is not removed, the bill will bedropped. That's why the bill was put over to next week to see if thiscan be accomplished."
Newsof AB 520 comes on the heels of recent public Record Act audits byCalAware, CFAC, CNPA and its member newspapers. The audits revealedthat dozens of California governments and agencies failed to complywith the law by wrongfully delaying or denying requests, demanding thereasons for the requests and/or improperly charging fees far beyondthose authorized by the act.
Jeff Mitchell is a longtime California journalist and political observer. Find his politics blog at www.bapolitix.org.
