California Legislature digressing on transparency and open data

150 150 Alexandra Bjerg

(Photo Credit: Allison Rose Ramirez)

The legislature recently took one step forward and two steps back on the road towards greater transparency in California. For the first time in recent history, the budget bill and accompanying trailer bills were made publicly available online several days before the vote in both houses. But lurking somewhere in the 1,600 page budget bill sitting on Gov. Brown’s desk is a provision that could severely undermine the public’s right to access government records.

Late Friday, both houses approved legislation that allows local agencies to opt out of complying with several requirements under the California Public Records Act, dealing a significant blow to government transparency and accountability. If Gov. Brown approves the measure as expected, key provisions of the California law, designed to help residents monitor how their government is working, would be suspended, downgrading the legal requirements to rules, or “best practices”. 

Open government advocate and general counsel of the California Newspaper Publisher’s Association, Jim Ewert, is concerned about the “potentially very significantly damaging” impact on transparency. 

The budget would make it easier for cities, counties, school districts, and other local agencies to ignore requests for public documents. Officials would no longer be legally required to respond to a records request within 10 days nor to provide any explantion for witholding information.

“Not only does the suspension allow an agency to not provide a reason for denying a request,” Ewert explained.  Even more troubling, “it presumably allows an agency to not respond to a request at all.”

The proposed changes give local government entities discretion over the format in which to provide information to the public and make assisting constituents through the cumbersome records request process voluntary. Lifting requirements to provide documents electronically could hinder access and stymie civic innovation, if agencies opt to solely offer paper copies.

“All of this was done in the cover of darkness and without a single policy committee hearing,” added Ewert. 

Legislators point to potential cost-saving as a justification for the proposal. By allowing the state to avoid being billed by local governments to cover the cost of disclosing information, suspension of the mandate would save the state money, but exactly how much is unclear. Although the Legislative Analyst’s office estimates the mandate currently costs the state tens of millions of dollars, an exact number has yet to be released. 

On the other hand, the changes, Ewert said, “have the potential of costing local governments a tremendous amount of money.” Under the budget, residents would retain the right to sue to force disclosure, thanks to a 2004 voter approved initiave giving Californians the constitional right to access public meetings and records. As a result, agencies that do not comply with the “best practices” may become entangled in an increased number of costly lawsuits. 

The good news is, statewide representatives of local government have already said local entities will continue to comply with the Public Records Act, regardless of whether or not the state reimburses them for cost. But Ewert is skeptical; believing the removal of legal obligations may “encourage and foment corruptive practices in local agency government.” The law was initially enacted precisely because government wasn’t making records publically available. 

Transparency is the cornerstone of good governance. The proposed changes weaken the California Public Records Act and have the potential to significantly restrict access to local government documents, limiting the public’s ability to hold leaders accountable.  

At a time when public confidence in government is at historic lows, we should be strengthening requirements that safeguard transparency, not removing them. Transparency should not be sacrificed as a way to balance the budget; the temporary fiscal benefits do not outweigh the long-term impact transparency and inclusion has on good governance. 


Alexandra Bjerg

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