A bill before the state Legislature would finally penalize governments who would hide their records from the public.
California’s Public Records Act provides all Californians with the fundamental right of a transparent and accountable government. The CPRA is explicit and thorough in its requirements. All government records – from the smallest city hall to Sacramento ‘s statehouse -- are presumed to be public information. The law requires a compelling exception to justify hiding them from public view.
Even the term “records” is defined broadly to encompass not only any written document but also information stored in computer databases.
Under the CPRA, the government must respond to any request within a strict time frame, and disclose records in a “prompt” fashion. It must also “assist” those requesting information in finding what they seek and not impose production fees that exceed the “direct cost of duplication.”
Despite such governmental transparency being enshrined in California’s Constitution, there are no real penalties for governments who fail to comply with the law — leaving Californians with significantly less transparency from their governments than they’ve been promised.
When a government denies access to public records in violation of the CPRA, those requesting the information have only two choices: give up or sue.
Suing can take months and be very expensive. So, many simply give up.
As a result, some governments have become accustomed to violating the law in especially indefensible ways.
The city of Taft has steadfastly denied our requests for employee salary data for the past four years — despite the fact that literally every other city in Kern County and nearly every other city statewide has provided the exact same information without issue.
This year’s denial was particularly remarkable. First, city attorney Jason Epperson claimed the request was too narrow and the requested records did not exist in the exact format requested.
After we replied that the information need not be provided in a specific format, Epperson denied the request on the grounds it was “nonspecific and unfocused.”
Taft first denied a request for records documenting the names and salaries of city employees because it was too specific, then later denied the exact same request on the grounds it was overbroad!
We sued Taft and it now looks like they will start taking the law seriously. Unfortunately, it’s Taft’s taxpayers who will ultimately pay for the city’s obstinacy — which is neither fair nor an effective deterrent to non-compliance.
Another way agencies obstruct access is by charging excessive “production fees.”
That’s what happened in our recent request from the Southern Kern Unified School District. The district’s official response alleged that providing the requested records would take 35 hours of staff time, and thus demanded payment of a $1,150 programming fee before they would proceed.
The letter closed by directing all questions to the district’s legal counsel, Bill Hornback, suggesting this determination was made in consultation with an attorney.
We often hear from residents who get similar responses and feel they have no recourse and give up.
When the average citizen gets a letter from the government or its attorneys claiming something as fact, how many are comfortable disputing the claim?
Unable to fork over the hundreds or even thousands of dollars, those citizens are simply denied access to the information they are entitled to have.
Because Southern Kern Unified uses identical payroll software to a neighboring school district — who attested the information could be provided in under 5 minutes at no charge — we knew their $1,150 programming fee was bogus.
Despite telling Southern Kern this, no substantive response was provided until we finally threatened legal action three weeks later — at which point the information was provided in just a few hours at no cost.
Residents shouldn’t have to play a game of chicken with governments to get access to records they are entitled to have under state law and the California Constitution.
Assembly Bill 1479 will add a fine — paid directly to the requester — for governments who, among other things, “improperly assessed a fee upon a requester that exceeded the direct cost of duplication.”
Unfortunately, government lobbyists have already succeeded in adding exemptions so vast that it effectively erases the provision entirely, according an analysis conducted by the California Newspaper Publishers Association.
The bill’s language should revert to its original form so that all bad faith responses are punished, without exception.
The proposed maximum penalty of $5,000 is far too small to effectively ensure compliance. The bill should allow for penalties of up to $25,000 for particularly egregious bad-faith violations.
Only then will the right to a transparent government apply to all Californians — and not merely those with the resources to threaten a lawsuit to see what is already ours.
Robert Fellner is research director at TransparentCalifornia.com — the state’s largest public pay and pension database — where he has made or overseen more than 10,000 public record requests to over 2,500 unique California governments.