Governor, Ruling Dems Suffer Black Eye in PRA Spat

Demands for transparency forced reversal of earlier positions

By Alex Matthews, Special Report from Capitol Weekly

Just days after the Legislature and the administration concluded months of budget battles, a routine bill sat on Gov. Brown’s desk awaiting his routine signature.

But the obscure, budget-linked bill – called a “trailer” because it is hooked to the state budget – was anything but routine.

It contained five paragraphs of startling language that changed the Public Records Act, or PRA. In effect, according to the sharpest critics of the plan, it expanded the ability of local governments to reject the public’s requests for information.   

But that prompted a fierce outcry from public interest groups, the media and the public and it ended with the governor and the Democrat-controlled Legislature caving to demands for transparency. Brown and lawmakers scrambled to remove the incendiary PRA language removed, with the Assembly approving it last week and the Senate approving it on Monday.

 The governor has 12 days from the passage to sign the bill, SB 71.

The political fallout is still being assessed. 

Clearly, Brown and lawmakers who supported changing the Public Records Act suffered a black eye. The local governments, who have long complained about shouldering the costs of the PRA and other access-linked rules, were not pleased because those costs will continue.  

Thus, the Public Records Act – for now, least -- remains the same, toothless and cumbersome in some respects, but still the principal law guaranteeing the public’s access to the government’s business. 

"The sky isn't falling," Chris McKenzie, executive director of the California League of Cities, told the Mercury-News last week. "We didn't ask for this. But the consequences of providing information is very, very significant, especially for elected officials. Cities will continue to act in a responsible manner."

Meanwhile, Sen. Mark Leno introduced a constitutional amendment to protect the PRA and Gov. Brown issued a statement in support of the amendment, which requires voter approval to take effect. The actions marked a 180-degree shift in position.  The amendment was expected to be considered later in the week.

Phillip Ung, a policy advocate for California Common Cause saw the change coming. 

“The fact that there is such a huge uproar now, I know privately that some legislators and staff wish that they could take it back,” he said earlier. “They are afraid, rightfully so, that this is going to be an election issue.”

Ung’s prediction that this would be an election issue also proved accurate by the end of the week: Leno’s amendment will go to the voters next June if legislators approve it by the requisite two-thirds, making the PRA a salient issue in the next election cycle.

While the debate escalated into a referendum on the importance of public access to government information, the issue started as an agreement between the Legislature and the administration to save what the Legislative Analyst’s Office predicted could be tens of millions of dollars.

The proposal intended to transfer the cost of complying with public records requests from the state to local governments. In the past, the state had been constitutionally required to reimburse local authorities for the cost of enforcing such mandates. By making some parts of the PRA—such as the requirement to respond to requests within ten days—optional best practices, the state hoped to avoid paying those reimbursements. 

That LAO’s projected savings were nebulous, however, because the state had not yet processed claims for these costs, and there was therefore no data on the exact costs. 

According to the LAO’s Brian Uhler, the estimate given by the office was based on historical data on claims from similar mandates, such as the Brown Act, for which savings were over $20 million. Uhler said that the actions required by the Public Records mandates may have been more extensive and that there may have been additional savings to be gained from bypassing the administrative costs of measuring the amount to be reimbursed.

But without only historical estimates of savings, the rationale for rolling back a law that has ensured fundamental public access since 1968 was unclear, and journalists and public interest groups like California Common Cause cried foul.  

“We actually believe there are significant savings for the public when corruption waste and fraud are discovered through public records requests,” Ung said of the economic justifications for the law.

Meanwhile, the League’s McKenzie and Gregg Fishman with the California State Association of Counties said that despite the costs of compliance their member governments were likely to continue business as usual. 

Furthermore, both pointed out that the state has not yet paid the amount it owes to the local governments for compliance to the Public Records Act but has instead accumulated an account payable to the state. 

The locals largely have remained quiet regarding their positions on Leon’s constitutional amendment, Uhler noted, because the state has yet to reimburse local governments for these activities. Those costs are unlikely to change. 

McKenzie added that processes such as public records requests become entrenched in the fabric of local government and changing them, particularly in the face of potential future legislative action, would require more effort than continuing business as usual. He said in speaking with city leaders, they didn’t expect anything to change with the trailer bill, and now that the PRA language in it has been usurped by the potential constitutional amendment, they still had no plans to change their process.

McKenzie said the fiscal debates are of less concern to local entities than the principles of transparency underpinning public records mandates.

“[The cities are] telling us this is part of the fabric of city government. They believe in transparency,” McKenzie said. “I’m not saying there won’t be people who are criticized for their conduct, but the vast majority, I would guess, are going to respond in just the way they did before.”

Ung disagreed. 

“If you’ve ever filed a public records request you know that local government or any government agencies, they don’t want to comply with even mandatory requirements of the Public Records Act,” he said. “By making it optional, all you do is just throw gasoline on that fire and give local agencies of government legal authority to say ‘We don’t want to comply,’ and give them a whole set of tools that they can use to not disclose records.”

Peter Scheer, executive director of the First Amendment Coalition was skeptical that some local governments would not have to shirk some expectations of transparency. Scheer and Ung’s concern is not without historical basis. 

For example, The Los Angeles Times uncovered a scandal in the City of Bell, California in which city officials were being paid significantly higher salaries than officials elsewhere in the state. The Public Records Act was vital to the reporters in unveiling this scandal.

While some suggested that the fiscal consequences will have no impact on how local entities process public records requests, the Senate’s initial decision to hold the Assembly bill, before reversing position and agreeing to remove the language, was rooted in economic concerns. The amendment seemed to be a means of making that statement:  “The amendment will clarify that this controversy was never about weakening the public records act,” Senate Leader Darrell Steinberg said. “It is instead about whether state taxpayers pay the bill for what city and county officials should be doing on their own.”

Ung, Scheer, and others viewed this claim dubiously: 

“They’re trying to put dollars behind it and account for money at the expense of public trust and public accessibility,” Scheer said. “We don’t believe you can put a price tag on that.”

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