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A state bill being pushed by Sen. Ben Hueso and City Attorney Mara Elliott would incentivize government agencies to recklessly deny public records without any consequence, and will halt all but the wealthiest from pursuing public records.
Recently, the public learned that San Diego City Attorney Mara Elliott sponsored Senate Bill 615 to, purportedly, ease the burden on local governments’ compliance with the California Public Records Act.
SB 615 puts up serious roadblocks to government transparency, limiting our rights to know what public officials are doing. Elliott claims that public interest in government has grown so greatly in recent years (a good thing, right?) that it must now be stymied. On the back of this far-fetched public record-aggedon scenario, SB 615 aims to eliminate the only means the people of California have to counter governmental opacity, skullduggery or just plain laziness.
The CPRA was modeled after the federal Freedom of Information Act. It acts as a check on government, permitting the public an opportunity to audit an agency’s actions. Given the virtually unlimited funds and resources available to government, the CPRA acts gives the public a view into out-of-control spending, gross misapplications of the law and the horrific mistreatment of the most vulnerable in our society.
But the CPRA has no teeth. Officials who refuse to comply with the law face no penalties. Instead, the CPRA forces one to file a lawsuit to secure those records.
That’s OK if you have the tens or hundreds of thousands of dollars to burn on attorneys. But for the vast majority of individuals who cannot afford to hire a lawyer, they must themselves delve into the arcane world of filing writs of mandate, researching case and statutory law, preparing court briefs and presenting oral arguments before a judge. On the off chance one can find a public interest attorney willing to take on such a case, that advocate must expend dozens, if not hundreds, of hours of her time without pay (know many attorneys willing to work for free?). Only upon prevailing against a recalcitrant government may the attorney ask to be reimbursed. And then, judges rarely grant an award commensurate to the time and expense actually incurred, requiring much of the attorney’s time must be written off. Clearly, this is not ideal, but like our system of governance, it’s the best we’ve got.
As if the public did not have enough on its hands fighting city hall, SB 615 would further diminish the public’s rights. Through SB 615, Elliot in concert with state Sen. Ben Hueso, the legislator carrying the bill, aim to gut the already meager prospects for open government. If Elliott were looking for a state legislator whose run-ins with the CPRA were less than flattering, it would be hard to pick someone more apt than Hueso. Elliott, too, has had her share of questionable decisions on government transparency and the Public Records Act.
This SB 615 love-child of Elliot and Hueso is bad for the public in myriad ways.
First, SB 615 requires the record requesting public to “meet and confer” with an agency before filing a lawsuit, putting the burden on the public to arrange such a discussion. Yet it does not compel the government to actually participate, resulting in a potentially interminable delay before one has their day in court. The proposed bill also provides ample opportunity to trip up members of the public, possibly requiring dialogue with government attorneys without representation present for the member of the public requesting the records. Saying the wrong thing due to ignorance of the law may result in a denial of one’s claims. Perhaps the most insidious aspect of this meet and confer requirement is that it runs counter to an existing aspect of the law — the requirement that the government assist a member of the public to identify responsive records or the purpose of their request, and to provide suggestions to overcome any practical basis for denying access to records or information. Why would one need to meet and confer with a public official to resolve records disputes if that same official is already proactively required by law to resolve such disputes? The answer is simple: Most people will simply drop the matter rather than take on this additional hassle.
Flipping the CPRA on its head, SB 615 countermands the current state of the law which requires the government to explain why it refused to release records to the public, instead demanding that the public now explain why the government refuses to release its records. Consider the predicament: You ask for a public record, the agency refuses to give it to you, and now you must prove why the government refused to give you the record without the benefit of records which might prove that point as well. It takes a sharp mind to devise a legal trap like this one. Were this effort not counter to the public’s interest, it would almost be worthy of genuine admiration for its Machiavellian cunning.
SB 615 also requires that a court find that “the public records … were clearly subject to public disclosure.” The California Public Records Act has over six dozen exemptions authorizing governments to withhold documents. A good public agency attorney can always raise some doubt as to the propriety of withholding records. So, even though one might succeed in proving the government failed to follow the law, under SB 615 a judge can withhold reimbursement if she decides the government raises sufficient doubt on the legal necessity to disclose public records. Removing this right to reimbursement affords government agencies the ability to recklessly deny records without any consequence, and will halt all but the wealthiest from pursuing public records.
Rather than pose obstacles to the public’s rights to an open government, Elliott and Hueso could have suggested means to reduce agency expenses while also providing more records to the public. For instance, additional categories of records could be identified to limit time-consuming reviews for potentially applicable exemptions. Or public records, including emails, text messages, letters and other communications, can be made public automatically unless an official opts to proactively withhold a sensitive document before it is published. Or government officials could be held personally liable for failing to disclose records.
But Elliott argues that SB 615 is necessary because of a CPRA case resulting in a $158,000 award of attorney’s fees that could have been put to better use repairing streets. She fails to mention that this award would not have been granted had public officials followed the law in disclosing the public records sought in the first place. She also fails to acknowledge that the CPRA saves the public far more money than it costs.
Voice of San Diego, a single news outlet, has used the CPRA with great success to find mismanagement of public funds on the scale of hundreds of thousands, tens of millions and even billions of dollars. It has found public records that uncover issues that have resulted in significant public waste and which may, unchecked, lead to substantial downstream liability. And Voice of San Diego has employed the CPRA to check government corruption, which costs all of us more than we will ever know.
If Elliott would like to measure the costs versus savings attributable to the CPRA on a dollar-for-dollar basis, let her.
Felix Tinkov is an attorney whose practice entails land use, real property development and the California Public Records Act. He represents the Voice of San Diego on public record matters.