California voters made public records a right, will they give it more teeth?

Nearly 20 years after California voters made access to government records a constitutional right, requests are being met with interminable delays, exorbitant fees and a host of exemption claims, consumer and open-government advocates say.

Those advocates are behind a new effort to sharpen open records laws with a proposed 2024 voter initiative designed to end abuses that keep the public’s business from public view.

“The Public Records Act is full of loopholes and fails to live up to the constitutional right to open records in California,” said Jerry Flanagan of Consumer Watchdog, the advocacy group sponsoring the proposed initiative. “The Government Transparency Act is necessary to protect and expand the public’s right to an open and accountable government.”

Gov. Ronald Reagan signed California’s Public Records Act into law in 1968.  In 2004, the state’s voters overwhelmingly approved Proposition 59 to bolster its provisions by establishing a constitutional right to government documents and meetings.

But because citizens must submit individual requests for documents to all levels of government — city, county, state and more — the types of responses they receive are all over the map, some good, some bad. Consumer Watchdog, the nonprofit whose founder led the 1988 Proposition 103 campaign to check insurance rates in the state, lists a host of practices that continue to frustrate citizens and news reporters requesting government records.

Some examples of responses include:

• California Public Utilities Commission resistance to disclosing requested records relating to the safety and integrity of power company infrastructure concealed flaws that led to devastating wildfires like the deadly 2018 Camp Fire sparked by a failed PG&E transmission tower that destroyed the town of Paradise.
• The city of San Jose has been sued repeatedly for perpetually extending its own deadline for producing records, delaying access beyond the time when they are relevant to public debate. In 2019, San Jose police told this news organization it would take four years to review and release requested records of police use of force. The Bay Area News Group sued, and the city ultimately agreed to a 30-day turnaround for most requests as part of a settlement.
• At least eight counties including Santa Cruz and Los Angeles have laws imposing substantial fees for providing requested records. Mendocino County in one recent example charged $84,000 to produce records and required a deposit up front.
• The Secretary of State’s office had until recently posted on its website an employee handbook on Public Records Act compliance that encouraged staff to destroy records as soon as legally permissible to avoid records requests and legal liability.

Officials at the Public Utilities Commission and Mendocino County had no immediate comment. San Jose officials denied perpetually extending deadlines and said response delays are allowed due to the volume of records involved. A Santa Cruz County spokesman said the county hasn’t enforced its 2010 cost collection ordinance because of judicial rulings.

Consumer Watchdog said the proposed initiative would stop practices that deny records by:

• Clarifying that public records include documents maintained by private contractors and vendors relating to their work on behalf of the public.
• Requiring agencies to provide most requested public records within 30 calendar days of a request. The law currently lacks such a deadline.
• Capping charges at the actual cost of producing records, no more than 10 cents per page.
• Prohibiting agencies from deleting or destroying public records for a minimum of five years after a record is created.

David Loy, legal director for the First Amendment Coalition, said that while the group doesn’t yet have a formal position on the just-announced initiative, it is “quite comprehensive” and anything that would strengthen the state’s public records law would be beneficial.

“Public disclosure should be the first duty of a democratic government,” Loy said.

He believes the proposed initiative will help combat abuse of the “deliberative process” exemption in which agencies deny access to records that helped public officials reach a policy decision. It was intended to allow officials to freely share ideas in private, but Loy said it has become a “catch-all exemption” used to deny records and force requesters to challenge the denial in court.

The proposed initiative has been submitted to the Attorney General’s office for a ballot summary and title, which is expected in eight weeks. After that, advocates must gather some 560,000 valid voter signatures to qualify the initiative for the ballot, Flanagan said.

Other measures already headed for the November 2024 ballot would ban new oil and gas wells near homes, schools and hospitals and undo a state council on fast food wages.

Consumer Watchdog cited polling that indicated 70% would approve the proposed public records initiative, support that held even when respondents were told it could lead to higher costs for government. That may not be surprising given Proposition 59 passed with 83% approval.

Paul Maslin of FM3 Research, the company that conducted the poll, said it is “extremely rare” to see “such broad support as this for a measure across partisan and ideological lines.”