California Public Records Act New Legislation

Best Best & Krieger LLP

Best Best & Krieger LLP

Part 1: New CPRA Laws for 2020

While an expansive array of records can be sought via a California Public Records Act request, the right to inspect public records is not without limits. The CPRA does not give unlimited access to records that may be exempt from disclosure. Occasionally the public’s right of access must yield to exemptions, such as individual privacy rights and defined privileges. However, transparency remains the goal.

Last year, the California Legislature and courts gave further guidance in balancing the rights of the public with those of the individual, aiming to further transparency when appropriate. In Part 1 of this Best Best & Krieger Legal Alert series, we look at updates from Sacramento that impact the CPRA.

CPRA New Laws

SB 126 Charter schools
SB 126 adds a new section to the California Education Code that explicitly states that charter schools and entities managing charter schools are subject to the CPRA. It further says that the chartering authority of a charter school is the custodian of records with regard to requests submitted to the charter school if either the charter school is located on a federally recognized California Indian reservation or the charter school is operated by a nonprofit formed on or before May 31, 2002 and is currently operated by a federally recognized California Indian tribe. However, it also says that, to the extent a governing body of a charter school or an entity managing a charter school engages in activities that are unrelated to a charter school, the CPRA does not apply to those activities.

AB 1819 Committee on Judiciary. Inspection of public records: use of requester’s reproduction equipment
AB 1819 amends Government Code section 6253 to say that a requester, who inspects a public record on the premises of the public agency disclosing the record, has the right to use his or her own equipment, at no cost, to photograph or otherwise copy the record. This must be done in a way that does not require the equipment to make physical contact with the record, unless such reproduction would damage the record or result in unauthorized access to the agency’s computer systems or secured networks. It further amends section 6253 to say that the public agency disclosing the record may impose “reasonable limits” on the use of the requester’s equipment to protect the safety of the records, prevent the copying of records from being an unreasonable burden to the orderly function of the agency and its employees or preserve historic or high-value records.

Law Enforcement

AB 748 Peace officers: video and audio recordings: disclosure
AB 748 amended the CPRA to limit the circumstances when police department audio and/or video recordings related to a critical incident may be with withheld. This change affects body-worn camera footage disclosure depicting a firearm discharge at a person by a peace officer or use of force against a person resulting in death or great bodily injury. AB 748 went into effect on July 1, 2019.

Read more in the BB&K Legal Alerts:

SB 978 Law enforcement agencies: public records
SB 978 added a new section 13650 to the California Penal Code to provide that “[c]ommencing January 1, 2020, the Commission on Peace Officer Standards and Training and each local law enforcement agency shall conspicuously post on their Internet Web sites all current standards, policies, practices, operating procedures, and education and training materials that would otherwise be available to the public if a request was made pursuant to the [CPRA].”

Failed Legislation

If passed, SB 518 and AB 1184 would have significantly impacted the CPRA; however, Gov. Gavin Newsom vetoed both bills.

SB 518 would have amended Code of Civil Procedure section 998 and prohibited pretrial settlement offers, or “998 offers,” in CPRA litigation. The bill was rejected on the basis that it would “provide a perverse incentive for more litigation instead of more transparency.” Permitting 998 offers in CPRA litigation arguably encourages local agencies to disclose inadvertently overlooked or mistakenly withheld documents early in litigation in an effort to quickly settle the dispute.

AB 1184 would have required state and local public agencies to retain every public record transmitted by email for at least 2 years. Newsom said he vetoed this bill because it would not “strike the appropriate balance between the benefits of greater transparency through the public’s access to public records, and the burdens of a dramatic increase in records-retention requirements.”

SB 518 and AB 1184 were both enrolled prior to being vetoed — meaning they were passed by both houses of the Legislature. California Supreme Court precedent suggests that courts should take judicial notice of enrolled bill reports. Nevertheless, lower courts have found that enrolled bill reports cannot adequately reflect the Legislature’s intent when they are prepared by the Executive Branch, though they may be used to corroborate legislative intent.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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