Bill would penalize delays in access to public records

FIRST & FOREMOST

Do you remember the Germanwings Flight 9525 plane crash? It was ranked number two in ABC News' "Year in Review: 13 Biggest News Stories of 2015." How about the Amtrak train derailment in Philadelphia that same year? It was number four on the same list. The point of these questions is not to make you feel badly if you have only vague memories (or no memory at all) of those events. The point is to demonstrate how "hot news" - news that dominates cable TV shows and newspaper headlines and that is shared widely on Facebook - can quickly become "yesterday's news."

The fact that time is often of the essence poses special problems for reporters and interested citizens seeking public records regarding California state and local agencies. The California Constitution mandates that "people have the right of access to information concerning the conduct of the people's business," and guarantees that "writings of public officials and agencies shall be open to public scrutiny." California constitution, Article I, Section 3(b). California's Public Records Act (CPRA), Gov't Code Section 6250 et seq., provides the mechanisms and procedures most commonly used by the public to obtain such records.

The CPRA's procedures are consistent with the notion that, when dealing with public records requests, timeliness matters. The CPRA requires state and local agencies, upon receipt of a request for public records, to determine "within 10 days from receipt of the request" whether there are responsive records and to notify the requestor of their determination. Section 6253(c). "In unusual circumstances," that 10-day limit may be extended, but by no "more than 14 days," and the agency must explain in writing its reasons for delay. Id. The CPRA also requires agencies to produce responsive, non-exempt records "promptly." Section 6253(b). And it further provides that "[n]othing in this chapter shall be construed to permit an agency to delay or obstruct the inspection or copying of public records." Section 6253(d).

Unfortunately, government agencies and their leaders sometimes have incentives to delay production of public records. Sometimes the reasons are mundane, such as an official's belief that there are other more pressing matters that they would prefer to prioritize over promptly producing records as required by the CPRA. Other times, the motivations can be malignant, such as a desire to cover up impropriety or incompetence, or at least to delay its exposure to lessen any resulting public controversy.

Undue delay in producing records is not just inconsistent with the CPRA's mandate that records be produced "promptly," but with the case law as well. The California Supreme Court has recognized that "the timeliness of disclosure often is of crucial importance in actions brought under the Public Records Act." Powers v. City of Richmond, 10 Cal. 4th 85, 118 (1995) (J. George, concurring) (original emphasis). Accordingly, the CPRA is designed to prevent opponents of disclosure from delaying proceedings to prevent "disclosure of public information at a time when the material still was newsworthy or of particular importance to the plaintiff" and the public. Id. Courts applying the analogous federal Freedom of Information Act have reached a similar conclusion: "information is often useful only if it is timely. Thus, excessive delay by the agency in its response is often tantamount to denial." Gilmore v. U.S. Dep't of Energy, 33 F. Supp. 2d 1184, 1187 (N.D. Cal. 1998) (internal quotation marks omitted).

Nonetheless, there has been growing concern in recent years among attorneys, reporters and interested citizens that such delays - including, in some instances, what seemed like tactical delays - are getting worse and negatively affecting the ability to gather much-needed information regarding the operation of our government. The breakneck speed of today's news cycles and the ever-shortening attention span of news consumers compound the problem.

A modest first step towards addressing the problem may be on the way. The California Assembly is currently considering Assembly Bill 1479, which would allow judges to fine public agencies up to $5,000 for, among other things, unreasonable delays in producing public records in response to CPRA requests. The Assembly Judiciary Committee approved the bill in an 11-0 vote. The next step for the bill is the Appropriations Committee and, if that hurdle is cleared, the bill could proceed to the assembly floor in the next month or two. Assembly Bill 1479 would represent a modest first step in encouraging public agencies to comply with the CPRA's requirement that they produce responsive records "promptly."

In addition, the ACLU Foundation of Southern California and the Yale Law School's Media Freedom and Information Access Clinic recently filed suit against the Los Angeles Police Department for alleged systemic failures to comply with the CPRA, including failures to respond to requests and produce responsive materials in a timely manner. Among other remedies, they are asking that the LAPD be ordered to track and report on its responses to public records requests for the next three years, which could provide more comprehensive data regarding the time between requests and the actual production of records.

One lawsuit against a particular government agency and one bill permitting for modest fines, by themselves, are not, going to solve more systemic problems with undue delays in complying with CPRA requests. However, it is encouraging that the legislative and judicial systems are now focusing on this important public issue.