Legislation would create ombudsman to decide public records act disputes

A proposed bill would create an ombudsman in the California State Auditor’s office to decide disputes under the Public Records Act.

Assemblyman Vince Fong, R-Bakersfield, authored the bill, which states merely that it is the “intent” of the Legislature to create the office to “serve as the appeals body for all requests related to the California Public Records Act.”

Important details are still missing, such as how citizens would file appeals, how long the office would have to consider them and what means the ombudsman would have of enforcing decisions.

Fong is an outspoken critic of the Department of Motor Vehicles and the California Department of Technology. Since-departed DMV Director Jean Shiomoto unilaterally decided last year to withhold numerous documents about the troubled rollout of the state’s motor voter program from the press.

“The objective is to bring real transparency to state government, so we can better hold Sacramento accountable,” Fong said. “How can you hold state agencies accountable if no one knows that’s going on?”

Fong said the bill was just the beginning of a process, and he was open to adding provisions. AB 289 will be written only to apply to state agencies, and not local government or law enforcement, to keep costs down.

He also answered a main worry of some Public Records Act advocates.

“This does not replace the court process,” Fong said. “If an individual or organization wants to pursue legal action, they can still do so.”

This was a concern raised by David Snyder, executive director of the First Amendment Coalition in San Rafael, who said the ombudsman should not become the “sole arbiter” of California Public Records Act, or CPRA, denials.

“It leaves a lot of questions to be answered,” Snyder said, “Without pretty significant funding, planning and foresight, [it] would run the serious risk of simply adding more delays to a process that already takes too long.”

James W. Ewert, general counsel with the California Newspaper Publishers Association, said his group is “generally supportive” of the bill but wants to see more details.

“If it’s going to be meaningful at all, it’s going to need to provide pretty clear guidance, not just for the ombudsman but all of the stakeholders that engage in the CPRA process,” Ewert said.

The newspaper publishers sponsored similar bills two decades ago: SB 48 in 1999 and SB 2027 in 2000. Both would have placed the decision-making authority with the California Department of Justice, but the first bill was vetoed and the second died in committee.

“There’s better ways to achieve [the] goals of this proposed legislation,” said Paul Nicholas Boylan, a Davis-based attorney specializing in Public Records Act cases.

Boylan said the current court process has advantages, especially because Public Records Act cases are given calendar priority. He suggested strengthening the law by requiring detailed reasons behind each denial and having sanctions for agencies that repeatedly deny valid requests.

The proposed ombudsman appears to approximate a process within the federal Freedom of Information Act, he added.

“There is an immediate appeals process that you have to go through before you actually take something to court,” Boylan said. “It’s been around for a very long time, and frankly, it doesn’t work very well.”