Thursday, June 27, 2013

Battle Over CA's Public Records Act was Actually a Budget Deal

By Associate Clinical Professor Jessica Levinson

This op-ed is cross-posted from KCET.

Some of you may have gotten whiplash following the latest kerfuffle over California's Public Records Act (CPRA).

First, as part of the budget deal it looked like there would be limited access to government documents. Why? Because the deal provided that the CPRA would be suspended, instead of paid for from state coffers. Specifically, the state is required to reimburse local agencies for the cost of compliance. The anticipated cost of the CPRA totals in the tens of millions of dollars.

Under the budget plan, local agencies would have the ability to opt out of certain portions of the law, those requiring local agencies to help people trying to access information, provide respond to record requests within 10 days, and furnish people with electronic records when they are obtainable.

Then, predictably, there was a significant backlash. And then, equally predictably, legislators reacted. At the end of last week two State Senators introduced a constitutional amendment purportedly intended to strengthen the CPRA. State President Pro Tem Darrell Steinberg (D - Sacramento) and State Senator Mark Leno (D - San Francisco) introduced an amendment, which would require that local agencies comply with and pay the costs of complying with the CPRA.

This proposal reveals the ultimate truth about this hubbub; it is likely much more about who pays to comply with the CPRA then it is about public records. (As an interesting side note, legislators are subject to a more limited disclosure law, the Legislative Open Records Act). This is perhaps yet another reason why this fight is about the budget, not disclosure.

Because the proposal is a constitutional amendment it will have to be approved by a two-thirds vote in both legislative houses and then a majority of the voters, likely in June 2014.
But here's another proposal: How about we save ourselves the cost of putting this question to the voters and ask our legislators to simply enact a law? The legislature could enact a statute, which does not require a supermajority vote or approval by the voters. The legislature need not attempt a constitutional amendment.

What will happen in the meantime? Well, the State Assembly passed a revised bill, which would retain the status quo with respect to the CPRA. The next stop for the bill is the State Senate. It is likely to pass in that house, and then be signed by Gov. Jerry Brown.

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