Governor Signs Budget Trailer Bill Without Language Suspending Parts of the Public Records Act - State-Mandated Activities Remain Reimbursable

by Best Best & Krieger LLP

Governor Jerry Brown has vetoed Assembly Bill 76 and signed Senate Bill 71. As introduced, both bills contained language that would have suspended certain provisions of the California Public Records Act. However, SB 71 was later amended to delete the suspension language. The end result is that local agencies must still comply with all requirements of the Public Records Act.

The provisions of the Public Records Act that were considered for suspension are those found by the Commission on State Mandates to be reimbursable activities in its Statement of Decision issued May 26, 2011, further clarified in the Parameters and Guidelines adopted on April 19, 2013. Since SB 71 does not suspend these provisions, they are still reimbursable activities for most local agencies. Specifically, those provisions include:

  • The requirement to provide written notice whether a request seeks disclosable records within 10 days of receipt of the request;
  • The requirement to notify the requester of the reason for an extension under “unusual circumstances” and the date on which a determination is expected to be sent;
  • The requirement to assist a requester to make a “focused and effective request”;
  • For K-12 school districts and county offices of education, the requirement to redact or withhold the home address and telephone number of employees from disclosable records; and
  • The requirement to provide a requester with written notice if his or her request is denied.

Had it not been vetoed, AB 76 would have recast these activities as “best practices” and required each agency to announce annually whether it would comply with the requirements.

Although these activities are reimbursable for most local agencies, it has been reported that the State has not yet paid any reimbursement for these activities. It has also been reported that the State does not have a concrete estimate of the potential costs, although the Legislative Analyst’s Office at one time estimated the total costs to the State would be in the tens of millions of dollars. 

Meanwhile, a proposed constitutional amendment, Senate Constitutional Amendment 3, is working its way up from the Senate Committee on Government and Finance. SCA 3 would require each local agency to comply with the Public Records Act and the Brown Act, and amend the constitutional language that requires the State to reimburse local agencies for State mandates to provide that the State “may, but need not” reimburse local agencies for compliance with mandates under the Public Records Act and the Brown Act. A constitutional amendment such as SCA 3 is subject to a two-thirds vote of the legislature and an affirmative vote of the majority of the electorate. If SCA 3 is adopted, local agencies could no longer claim reimbursement for mandates imposed by the Public Records Act.

Local agencies should continue to comply with all requirements of the Public Records Act. Pending the outcome of SCA 3, local agencies should consider monitoring costs of compliance with the activities outlined above, which remain reimbursable to most local agencies. The Commission on State Mandates has scheduled a hearing in July to consider the types of local agencies that can receive reimbursement for Public Records Act mandates.

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