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Proposals for Open Government Reform Legislation, 2019

Public Information and the California Public Records Act (CPRA)
The Deliberative Process Privilege Needs Definition

The Problem:
This common law privilege—one not recognized in the Evidence Code or defined
as an exemption from disclosure under any other statute—was cited by the California Supreme Court
as a justification for denying public access to five years’ worth of the appointment calendars of
Governor George Deukmejian, sought by the Los Angeles Times under the CPRA.

The 1991 decision in Times Mirror Co. v. Superior Court, 53 Cal.3d 1325 concluded that if the public
knew who was meeting with the Governor that would disclose the Governor’s thinking and degrade
the quality of his/her deliberative process, since people would be reluctant to participate in such
meetings if their doing so became widely known. Not what was said, but merely the fact that the
meeting took place.

Since then the Governor’s special need for such discretionary confidentiality—also known as the
executive privilege—has been recognized in two appellate decisions dealing with the power to
appoint persons to mid-term vacancies on boards of supervisors. But another appellate case extended
the privilege to protect the deliberations of members of a city council, and since then the privilege
claim is too often used the keep secret the development of policy by city councils, county supervisors
and school boards. This is utterly contrary to the principle underlying the Brown Act that such policy
development and deliberation are to be open to public examination and to some extent even public
participation. Some local bodies have even tried to extend the privilege to communications among
staff members during the policy development process.

The Correction:
Amend the CPRA to codify the Times Mirror Co. principle—but narrowly. Add an
express exemption from disclosure for records revealing the advice given to the Governor, or his or
her mental processes, concerning and preliminary to a specified and disclosed decision. To qualify,
such advice must come from and originate with executive branch advisors, not consultants, lobbyists
or others, who are either professionals paid to take the heat of the kitchen or those outside the
government whom it is vital to be able to link with campaign contribution disclosures and other
indicia of potential improper influence. This exemption would parallel and complement the existing
exemption for the Governor’s correspondence. But it would also expressly exclude availability of the
exemption for legislative bodies subject to the Brown Act and the Bagley-Keene Open Meeting Act,
their members and their advisors.

Overcharging for Digital Copies of Records Needs to End

The Problem:
The CPRA language providing access to government’s electronic records dates
from the 1990s and badly needs updating to reflect a completely transformed digital environment. In
particular, the rates charged for copies of electronic records bear little relation to the legal standard
for recoverable “direct costs of duplication,” as understood in the paper domain. The California State
University System, for example, charges the same amount for copies of a pdf document as for the
paper document: 20 cents per page. Also, many agencies charge a substantial fee for extracting data
from an existing database whether or not any new programming has to be done to permit the
extraction.

The Correction: Amend the CPRA to prohibit charges for copies of pdfs, or for data extracted from a
database if no new programing is required to permit the extraction. Use the clarification already
found in the California Rules of Court: "For purposes of this rule, selecting data from extractable fields
in a single database using software already owned or licensed by the judicial branch entity does not
constitute creating a record or compiling or assembling data."

Agencies Need to Accept Digital Payment for Smaller Records Orders

The Problem:
California State University refuses to accept credit card or other digital payment
for copies of public records. Its headquarters in Long Beach has even been known to insist on a mailed
check for less than a dollar before emailing a requester in the north state a one- or two-page
document.

The Correction:
Require public agencies to accept credit card or other digital forms of payment for
copies of public records involving fewer than 20 pages.

Attorney General Needs to Weigh in on Access Denials

The Problem:

If a public agency denies access to a requested record the requester very
often—perhaps even typically—has no sense of how legally well-founded that denial is, or what the
prospects of success for suing to get access might be. Even experienced requesters’ attorneys who
consult case law may sometimes be unsure of the strength of their case for access. In such instances it
may be necessary to sue to find out—or to simply accept the denial and walk away. Some mechanism
to provide a reality check to both requesters and denying agencies is badly needed to reduce the
necessity of litigation.

The Correction: AB 2927 of 2006 by then Assembly Member Leno would have required the Attorney
General, upon request, to provide a relatively prompt and brief public opinion on the validity of a
public agency’s denial of access sought under the CPRA. The opinion would have no binding effect but
would provide either the requester or the denying agency, as the case might be, with support for its
position sufficient to avoid litigation. AB 2927 was vetoed because of both its anticipated high cost
and the interest conflict created when a public agency advised by the Attorney General had its access
denial referred for AG review. The basic provisions of AB 2927 should be revised with two changes.
Requesters should be required to pay a review fee based on one hour’s time of a deputy attorney
general until actual costs of the program are known, with a one-year experience report to the
Legislature. And any denial by an agency advised by the Attorney General in any matter should be
exempt from AG review of CPRA denials.
The Government Needs to Base Its Public Records Access Denials on the Public Interest

The Problem:
The CPRA recognizes three different species of exemption from disclosure. One is
where a privilege or other law outside the CPRA flatly overrides or even prohibits public access, for
example in the case of attorney-client communications, personal medical history or tax return
information. The second is where the government is given the discretion to deny access, while not
mandated to. The third is where, despite any express authority to deny access, the public agency can
do so if it can show that on the facts of the particular case there is a greater public interest in
withholding than in disclosing the information. The latter “balancing test” or “catchall exemption”
acts as a wild card for justifying secrecy. The result is a fundamental structural imbalance in the
CPRA—a tilt favoring secrecy based on ad hoc considerations of overriding public interest.
Consequently, agencies with discretion to withhold public records (the second category), with no
obligation to justify or explain the need to do so, treat their discretion as a virtual mandate to
withhold records. Using their discretion to release information is essentially never considered, much
less exercised.

The Correction: To provide policy parity, amend the CPRA to require access to records normally
subject to discretionary exemption based on a demonstration that, under the given circumstances,
the public interest in disclosure outweighs the public interest in denial of access. The result: just as
the government has the power to make a persuasive argument for at least temporary or one-time
withholding of information to serve a defined public interest, a requester is able to do likewise on
behalf of a temporary or one-time override of the normally imposed secrecy. This leveling of the field
would not affect first-category rules that flatly prohibit public disclosure, only situations where an
agency is allowed to exercise its judgment to permit access—but now in practice simply never does
so.

Agencies Need to Preserve Emails As They Do Other Public Records

The Problem:
All state and local public agencies are subject to one or another statutes or
regulations requiring the preservation of various records for various periods of time. Some must be
maintained in some form in perpetuity, while most can be destroyed if unneeded after a relatively
brief period—typically one to three years. Nevertheless too many public agencies either purge their
networks and archives of emails after one to three months, or archive them in fragmentary form
requiring a costly process to reassemble, arguing that while the CPRA defines email as a medium
whose content is presumed open to the public, these messages are not really “records” requiring
preservation under the applicable statutes. The result is a loss of institutional memory and
accountability in short order, before the potential public significance of these communications can be
properly assessed.

The Correction: Amend the CPRA and the various preservation statutes to provide that for purposes
of those laws, email is a record subject to the presumption of disclosure and is subject to the same
preservation standards and schedules as paper or other media.
 Open Meetings and the Ralph M. Brown Act
Commitment of Public Funds or Assets Must Have Timely Transparency

The Problem:
The Brown Act not only permits local government bodies to consider and instruct
bargaining agents or attorneys on matters being negotiated with other parties—employee unions,
real property dealmakers, litigation adversaries involved in settlement talks—it allows these officials
to use closed sessions to approve binding agreements, with the public informed of the agreement
only afterward. The result can be costly and irreversible commitments of public funds and assets with
no public awareness, much less opportunity to comment prior to locking these decisions in. This need
not be the case. For example, the Education Code has a considerably more transparent process for
school boards to engage in negotiations with employee unions, while cities, who handle bargaining
under the Brown Act, are vulnerable to seeking bankruptcy because of imprudent employee union
commitments entered into with no public awareness.

The Correction: Amend the Brown Act to require the text of all local governing body agreements of
any kind developed in closed session involving the commitment of public funds or assets to be
announced and attached to the agenda of any meeting at which approval is ought, and confine such
approvals to regular meetings. Submit employee unit bargaining in cities, counties and special districts
to the same transparency procedures as the Education Code requires for school districts.

Special Meetings Need to Be Reserved for Special Purposes

The Problem:
The Brown Act permits a local government body to hold a meeting off the regular
schedule or at a different place (or both) for any purpose it chooses, and after only 24 hours notice,
not the 72 hours required for regular meetings. Many if not most local agencies have special meetings
only infrequently, for fairly predictable purposes. But some hold special meetings on the same day as
regular meetings, which allows them in effect to collapse the 72 hour notice period to only 24 hours
for any subject normally destined for a regular meeting for which they would prefer to arouse less
advanced public attention. At least one local body even schedules special meetings for certain topics
during regular meetings, adjourning and then reconvening the latter as bookends. These maneuvers
are nothing but gaming the rules to minimize public awareness and participation.

The Correction:
Amend the Brown Act to prohibit holding special meetings on the same day as
regular meetings, and limit special meeting purposes to:

1. take action on an urgent matter that must be addressed sooner than the next regular meeting,
such as action required to avoid a specified substantial and irremediable adverse impact that would
occur if the action were delayed;

2. comply with a deadline imposed by a court, by law or by legally binding agreement or one
determining eligibility for a grant, gift or other valuable benefit;

3. take a purely ceremonial or commendatory action of no known or reasonably foreseeable

controversy, scheduled by another person or organization, on a date over which the city had no
control;
4. address a matter of sufficient complexity, controversy or both that considering it at a regular
meeting would leave insufficient time to address more conventional business on the agenda; or

5. meet at a location outside the city for purposes permitted by the Brown Act, or at a location within
the city of sufficient capacity to accommodate an anticipated public attendance significantly larger
than experienced at ordinary regular meetings.

Brown Act Enforcement Needs Relevant, Probative Evidence

The Problem:
In a 1999 case the Court of Appeal held that members of local government bodies
could not be questioned about things discussed in closed session, even as part of litigation discovery
to determine whether the Brown Act had been violated. This creation of a virtual privilege outside the
Evidence Code means that absent an actual voluntary admission by a member of the body—which
can then be denied by others present—there is no way to acquire evidence confirming whether
matters have been discussed in closed session with unlawful secrecy.

The Correction:
Allow members of local bodies to be subjected to normal processes of discovery as

to particular discussions in closed session, in an action to enforce the Brown Act, after appropriate
foundation suggesting a possible violation, and subject to a protective order forbidding the plaintiff’s
counsel from disclosing the information learned to any person, including the plaintiff, until it is
accepted by the court as admissible evidence of a violation.