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SB 615 would require members of the public to bear the cost of forcing the government to comply with its own transparency law.
Sen. Ben Hueso wants to make it harder for you to find out how the government is spending your money.
For the past half-century, California state law has declared that the right to access information concerning government conduct is a “fundamental and necessary right of every person in this state.”
In 2004, this right was elevated to the state Constitution after receiving the support of more than 83 percent of voters.
Hueso’s SB 615 would all but abolish that right.
Despite the strong language of California’s Public Records Act, enforcement is weak. Only if a requester has the time and resources to initiate a lawsuit can a government agency be compelled to comply with the law. And the only thing that makes this mechanism work, even if only partially, is that a prevailing requester is entitled to recoup their legal fees from the offending government agency.
Under SB 615, however, fees would only be awarded in the impossible-to-meet-standard of a “knowing and willful” violation of the law. So, for example, a government official who responds to a request by saying, “I know state law requires a response within 10 days, but I am choosing to ignore that and will respond to you whenever I feel like it,” would qualify. For all other violations, the requester would be forced to pay tens of thousands of dollars in order to exercise their so-called right to access government records.
In other words, SB 615 would require anyone requesting information to bear the cost of forcing the government to comply with its own transparency law.
This would allow governments to freely hide records from public view, secure in the knowledge that ordinary citizens could never bear the enormous financial burden of filing a lawsuit, at their own expense.
This isn’t an unintended consequence of a poorly written bill; it’s intentional. Anyone doubting that should consider Hueso’s history with transparency, or lack thereof.
In 2010, while serving as San Diego City Council president, Hueso ordered $11,000 in bonuses to be paid to certain city staffers.
But when the Voice of San Diego submitted a request for any records pertaining to those bonuses, Hueso’s staff falsely claimed that no such records existed. This untruthful and unlawful response was only exposed because of a tip from within the agency and the persistence of Voice of San Diego reporter Liam Dillon.
That same year, Hueso received the Voice of San Diego’s Whopper of the Year Award for having lobbied for a new tax hike based on the false claim that taxes had gone down in recent years.
Ironically, Hueso’s history of dishonesty is a perfect demonstration of why the California Public Records Act is so important. Taxpayers cannot just blindly trust government officials to give it to them straight, especially when it comes to potential misconduct or the real reason for higher taxes.
The California Public Records Act does need to be amended, however, by including penalties for officials who violate the law. It is an affront to the principles of democracy and representative government to allow government employees to violate the law with impunity, while simultaneously imposing dire penalties on residents if they fail to pay any of the taxes demanded of them.
The Legislature should grant courts the discretion to apply additional sanctions, like a $100 per day penalty for each day the public record was unlawfully withheld. Most importantly, courts must also have the discretion to find the official responsible for the lawbreaking personally liable for some or all of the fees assessed.
By treating the public records law the same as every other law and including a penalty for those who violate it, California can finally make good on its promise of a transparent government to all of its citizens.
Hueso’s hostility to transparency, however, reveals a profound misunderstanding of his role as a representative of the people. Voters should replace him with a representative who appreciates and encourages the role of an informed citizenry, instead of someone actively working to keep them in the dark.
Robert Fellner is executive director of Transparent California, the state’s largest public pay database.