Californians
Aware
Proposals
for
Open
Government
Reform
in
2017
Public
Information
and
the
California
Public
Records
Act
(CPRA)
The
Deliberative
Process
Privilege
Needs
Definition
The
Problem:
This
common
law
privilege—one
not
recognized
in
the
Evidence
Code
or
defined
as
an
exemption
from
disclosure
under
any
other
statute—was
cited
by
the
California
Supreme
Court
as
a
justification
for
denying
public
access
to
five
years’
worth
of
the
appointment
calendars
of
Governor
George
Deukmejian,
sought
by
the
Los
Angeles
Times
under
the
CPRA.
The
1991
decision
in
Times
Mirror
Co.
v.
Superior
Court,
53
Cal.3d
1325
concluded
that
if
the
public
knew
who
was
meeting
with
the
Governor
that
would
disclose
the
Governor’s
thinking
and
degrade
the
quality
of
his/her
deliberative
process,
since
people
would
be
reluctant
to
participate
in
such
meetings
if
their
doing
so
became
widely
known.
Not
what
was
said,
but
merely
the
fact
that
the
meeting
took
place.
Since
then
the
Governor’s
special
need
for
such
discretionary
confidentiality—also
known
as
the
executive
privilege—has
been
recognized
in
two
appellate
decisions
dealing
with
the
power
to
appoint
persons
to
mid-‐term
vacancies
on
boards
of
supervisors.
But
another
appellate
case
extended
the
privilege
to
protect
the
deliberations
of
members
of
a
city
council,
and
since
then
the
privilege
claim
is
too
often
used
the
keep
secret
the
development
of
policy
by
legislative
bodies.
This
is
utterly
contrary
to
the
principle
underlying
the
Brown
Act
that
such
policy
development
and
deliberation
are
to
be
open
to
public
examination
and
to
some
extent
even
public
participation.
Some
local
bodies
have
even
tried
to
extend
the
privilege
to
communications
among
staff
members
during
the
policy
development
process.
The
Correction:
Amend
the
CPRA
to
codify
the
Times
Mirror
Co.
principle,
but
narrowly.
Add
an
express
exemption
from
disclosure
for
records
revealing
the
advice
given
to
the
Governor,
or
his
or
her
mental
processes,
concerning
and
preliminary
to
a
specified
and
disclosed
decision.
To
qualify,
such
advice
must
come
from
and
originate
with
executive
branch
advisors,
not
consultants,
lobbyists
or
others,
who
are
either
professionals
paid
to
take
the
heat
of
the
kitchen
or
those
outside
the
government
whom
it
is
vital
to
be
able
to
link
with
campaign
contribution
disclosures
and
other
indicia
of
potential
improper
influence.
This
exemption
would
parallel
and
complement
the
existing
exemption
for
the
Governor’s
correspondence.
But
it
would
also
expressly
exclude
availability
of
the
exemption
for
legislative
bodies
subject
to
the
Brown
Act
and
the
Bagley-‐Keene
Open
Meeting
Act,
their
members
and
their
advisors.
Please
direct
questions
to
Terry
Francke,
CalAware
General
Counsel:
terry@calaware.org
Overcharging for Digital Copies of Records Needs to be Ended
The
Problem:
The
CPRA
language
providing
access
to
government’s
electronic
records
dates
from
the
1990s
and
badly
needs
updating
to
reflect
a
completely
transformed
digital
environment.
In
particular,
the
rates
charged
for
copies
of
electronic
records
bear
little
relation
to
the
legal
standard
for
recoverable
“direct
costs
of
duplication,”
as
understood
in
the
paper
domain.
The
California
State
University
System,
for
example,
charges
the
same
amount
for
copies
of
a
pdf
document
as
for
the
paper
document:
20
cents
per
page.
Also,
many
agencies
charge
a
substantial
fee
for
extracting
data
from
an
existing
database
whether
or
not
any
new
programming
has
to
be
done
to
permit
the
extraction.
The
Correction:
Amend
the
CPRA
to
prohibit
charges
for
copies
of
pdfs,
or
for
data
extracted
from
a
database
if
no
new
programing
is
required
to
permit
the
extraction.
Use
the
clarification
already
found
in
the
California
Rules
of
Court:
"For
purposes
of
this
rule,
selecting
data
from
extractable
fields
in
a
single
database
using
software
already
owned
or
licensed
by
the
judicial
branch
entity
does
not
constitute
creating
a
record
or
compiling
or
assembling
data."
Agencies Need to Accept Digital Payment for Smaller Records Orders
The
Problem:
California
State
University
refuses
to
accept
credit
card
or
other
digital
payment
for
copies
of
public
records.
Its
headquarters
in
Long
Beach
has
even
been
known
to
insist
on
a
mailed
check
for
less
than
a
dollar
before
emailing
a
requester
in
the
north
state
a
one-‐
or
two-‐page
document.
The
Correction:
Require
public
agencies
to
accept
credit
card
or
other
digital
forms
of
payment
for
copies
of
public
records
involving
fewer
than
20
pages.
Officials Need to Use Official Email to Conduct Official Business
The
Problem:
Increasingly,
public
officials
appear
to
be
communicating
on
matters
of
official
business
using
their
personal
owned
email
accounts,
with
their
agencies
then
arguing
that
these
messages
are
private
and
beyond
the
reach
of
the
CPRA.
This
is
not
necessary
to
protect
officials’
privacy,
however,
since
the
CPRA
already
permits
withholding
of
records
to
preserve
personal
privacy.
If
an
agency
is
so
small
or
strapped
for
resources
that
it
has
not
been
able
to
support
email
accounts
for
its
officials,
that
is
one
problem.
But
if
it
does
provide
email
service
for
its
officials,
then
they
should
not
“go
private”
with
their
agency
business
communications
just
to
avoid
CPRA
disclosure.
The
Correction:
Prohibit
the
use
of
personal
email
accounts
by
public
employees
or
officials
to
communicate
on
agency
business
if
the
agency
provides
them
with
an
official
email
account.
Prohibit
agencies
that
provide
their
employees
and
officials
with
such
Please
direct
questions
to
Terry
Francke,
CalAware
General
Counsel:
terry@calaware.org
accounts
as
of
the
effective
date
of
the
bill
from
withdrawing
them
to
avoid
its
application.
The
Problem:
If
a
public
agency
denies
access
to
a
requested
record
the
requester
very
often—perhaps
even
typically—has
no
sense
of
how
legally
well-‐founded
that
denial
is,
or
what
the
prospects
of
success
for
suing
to
get
access
might
be.
Even
experienced
requesters’
attorneys
who
consult
case
law
may
sometimes
be
unsure
of
the
strength
of
their
case
for
access.
In
such
instances
it
may
be
necessary
to
sue
to
find
out—or
to
simply
accept
the
denial
and
walk
away.
Some
mechanism
to
provide
a
reality
check
to
both
requesters
and
denying
agencies
is
badly
needed
to
reduce
the
necessity
of
litigation.
The
Correction: AB 2927 of
2006
by
then
Assembly
Member
Leno
would
have
required
the
Attorney
General,
upon
request,
to
provide
a
relatively
prompt
and
brief
public
opinion
on
the
validity
of
a
public
agency’s
denial
of
access
sought
under
the
CPRA.
The
opinion
would
have
no
binding
effect
but
would
provide
either
the
requester
or
the
denying
agency,
as
the
case
might
be,
with
support
for
its
position
sufficient
to
avoid
litigation.
AB
2927
was
vetoed
because
of
both
its
anticipated
high
cost
and
the
interest
conflict
created
when
a
public
agency
advised
by
the
Attorney
General
had
its
access
denial
referred
for
AG
review.
The
basic
provisions
of
AB
2927
should
be
revised
with
two
changes.
Requesters
should
be
required
to
pay
a
review
fee
based
on
one
hour’s
time
of
a
deputy
attorney
general
until
actual
costs
of
the
program
are
known,
with
a
one-‐year
experience
report
to
the
Legislature.
And
any
denial
by
an
agency
advised
by
the
Attorney
General
in
any
matter
should
be
exempt
from
AG
review
of
CPRA
denials.
Public Agencies Need to Base Their Access Denials on the Public Interest
The
Problem:
The
CPRA
recognizes
three
different
species
of
exemption
from
disclosure.
One
is
where
a
privilege
or
other
law
outside
the
CPRA
flatly
overrides
or
even
prohibits
public
access,
for
example
in
the
case
of
attorney-‐client
communications,
personal
medical
history
or
tax
return
information.
The
second
is
where
the
government
is
given
the
discretion
to
deny
access,
while
not
mandated
to.
The
third
is
where,
despite
any
express
authority
to
deny
access,
the
public
agency
can
do
so
if
it
can
show
that
on
the
facts
of
the
particular
case
there
is
a
greater
public
interest
in
withholding
than
in
disclosing
the
information.
The
latter
“balancing
test”
or
“catchall
exemption”
acts
as
a
wild
card
for
justifying
secrecy.
The
result
is
a
fundamental
structural
imbalance
in
the
CPRA—a
tilt
favoring
secrecy
based
on
ad
hoc
considerations
of
overriding
public
interest.
Consequently,
agencies
with
discretion
to
withhold
public
records
(the
second
category),
with
no
obligation
to
justify
or
explain
the
need
to
do
so,
treat
their
discretion
as
a
virtual
mandate
to
withhold
records.
Using
their
discretion
to
release
information
is
essentially
never
considered,
much
less
exercised.
Please
direct
questions
to
Terry
Francke,
CalAware
General
Counsel:
terry@calaware.org
The
Correction:
To
provide
policy
parity,
amend
the
CPRA
to
allow
access
to
records
normally
subject
to
discretionary
exemption
based
on
a
demonstration
that,
under
the
given
circumstances,
the
public
interest
in
disclosure
outweighs
the
public
interest
in
denial
of
access.
The
result:
just
as
the
government
has
the
power
to
make
a
persuasive
argument
for
at
least
temporary
or
one-‐time
withholding
of
information
to
serve
a
defined
public
interest,
a
requester
is
able
to
do
likewise
on
behalf
of
a
temporary
or
one-‐time
override
of
the
normally
imposed
secrecy.
This
leveling
of
the
field
would
not
affect
first-‐category
rules
that
flatly
prohibit
public
disclosure,
only
situations
where
an
agency
is
given
discretion
to
permit
access—but
now
simply
never
does
so.
Dismissals of Unworthy Peace Officers Need to be Publicly Discoverable
The
Problem:
Case
law
interpretation
of
the
confidential
treatment
given
to
the
contents
of
peace
officer
personnel
files
holds
that,
unlike
the
case
with
all
other
public
employees,
no
information
may
be
disclosed
as
to
even
confirmed
misconduct
leading
to
the
termination
of
these
officers
for
dishonesty,
brutality
or
other
abuses
of
power
and
authority.
Citizens
have
no
way
of
determining
whether
a
newly
hired
officer
in
the
local
police
or
sheriff’s
department
was
fired
from
his
or
her
last
job
for
such
offenses.
The
Correction:
Require
the
Commission
on
Peace
Officer
Standards
and
Training
to
disclose
not
only
the
beginning
and
end
dates
of
an
officer’s
employment
with
a
particular
department—data
which
are
now
matters
of
public
record—but
also
if
the
officer’s
separation
was
a
termination
for
cause.
Require
law
enforcement
employers
in
such
cases
to
disclose
on
request
under
the
CPRA
the
complaint(s)
and
investigative
finding(s)
that
resulted
in
such
terminations.
Agencies Need to Preserve Emails As They Do Other Public Records
The
Problem:
All
state
and
local
public
agencies
are
subject
to
one
or
another
statutes
or
regulations
requiring
the
preservation
of
various
records
for
various
periods
of
time.
Some
must
be
maintained
in
some
form
in
perpetuity,
while
most
can
be
destroyed
if
unneeded
after
a
relatively
brief
period—typically
one
to
three
years.
Nevertheless
too
many
public
agencies
either
purge
their
networks
and
archives
of
emails
after
one
to
three
months,
or
archive
them
in
fragmentary
form
requiring
a
costly
process
to
reassemble,
arguing
that
while
the
CPRA
defines
email
as
a
medium
whose
content
is
presumed
open
to
the
public,
these
messages
are
not
really
“records”
requiring
preservation
under
the
applicable
statutes.
The
result
is
a
loss
of
institutional
memory
and
accountability
in
short
order,
before
the
potential
public
significance
of
these
communications
can
be
properly
assessed.
The
Correction:
Amend
the
CPRA
and
the
preservation
statutes
to
provide
that
for
purposes
of
those
laws,
email
is
a
record
subject
to
the
presumption
of
disclosure
and
is
subject
to
the
same
preservation
standards
and
schedules
as
paper
or
other
media.
Please
direct
questions
to
Terry
Francke,
CalAware
General
Counsel:
terry@calaware.org
The
Problem:
The
Brown
Act
not
only
permits
local
government
bodies
to
consider
and
instruct
bargaining
agents
or
attorneys
on
matters
being
negotiated
with
other
parties—employee
unions,
real
property
dealmakers,
litigation
adversaries
involved
in
settlement
talks—it
allows
these
officials
to
use
closed
sessions
to
approve
binding
agreements,
with
the
public
informed
of
the
agreement
only
afterward.
The
result
can
be
costly
and
irreversible
commitments
of
public
funds
and
assets
with
no
public
awareness,
much
less
opportunity
to
comment
prior
to
locking
these
decisions
in.
This
need
not
be
the
case.
For
example,
the
Education
Code
has
a
considerably
more
transparent
process
for
school
boards
to
engage
in
negotiations
with
employee
unions,
while
cities,
who
handle
bargaining
under
the
Brown
Act,
are
vulnerable
to
seeking
bankruptcy
because
of
imprudent
employee
union
commitments
entered
into
with
no
public
awareness.
The
Correction:
Amend
the
Brown
Act
to
require
the
text
of
all
local
governing
body
agreements
of
any
kind
bargained
in
closed
session
involving
the
commitment
of
public
funds
or
assets
to
be
announced
and
attached
to
the
agenda
of
any
meeting
at
which
approval
is
ought,
and
confine
such
approvals
to
regular
meetings.
Submit
employee
unit
bargaining
in
cities,
counties
and
special
districts
to
the
same
transparency
procedures
as
the
Education
Code
requires
for
school
districts.
The
Problem:
The
Brown
Act
permits
a
local
government
body
to
hold
a
meeting
off
the
regular
schedule
or
at
a
different
place
(or
both)
for
any
purpose
it
chooses,
and
after
only
24
hours
notice,
not
the
72
hours
required
for
regular
meetings.
Many
if
not
most
local
agencies
have
special
meetings
only
infrequently,
for
fairly
predictable
purposes.
But
some
hold
special
meetings
on
the
same
day
as
regular
meetings,
which
allows
them
in
effect
to
collapse
the
72
hour
notice
period
to
only
24
hours
for
any
subject
normally
destined
for
a
regular
meeting
for
which
they
would
prefer
to
arouse
less
advanced
public
attention.
At
least
one
local
body
even
schedules
special
meetings
for
certain
topics
during
regular
meetings,
adjourning
and
then
reconvening
the
latter
as
bookends.
These
maneuvers
are
nothing
but
gaming
the
rules
to
minimize
public
awareness
and
participation.
The
Correction:
Amend
the
Brown
Act
to
prohibit
holding
special
meetings
on
the
same
day
as
regular
meetings,
and
limit
special
meeting
purposes
to:
1.
take
action
on
an
urgent
matter
that
must
be
addressed
sooner
than
the
next
regular
meeting,
such
as
action
required
to
avoid
a
specified
substantial
and
irremediable
Please
direct
questions
to
Terry
Francke,
CalAware
General
Counsel:
terry@calaware.org
adverse impact that would occur if the action were delayed;
2.
comply
with
a
deadline
imposed
by
a
court,
by
law
or
by
legally
binding
agreement
or
one
determining
eligibility
for
a
grant,
gift
or
other
valuable
benefit;
3.
take
a
purely
ceremonial
or
commendatory
action
of
no
known
or
reasonably
foreseeable
controversy,
scheduled
by
another
person
or
organization,
on
a
date
over
which
the
city
had
no
control;
4.
address
a
matter
of
sufficient
complexity,
controversy
or
both
that
considering
it
at
a
regular
meeting
would
leave
insufficient
time
to
address
more
conventional
business
on
the
agenda;
or
5.
meet
at
a
location
outside
the
city
for
purposes
permitted
by
the
Brown
Act,
or
at
a
location
within
the
city
of
sufficient
capacity
to
accommodate
an
anticipated
public
attendance
significantly
larger
than
experienced
at
ordinary
regular
meetings.
The
Problem:
In
a
1999
case
the
Court
of
Appeal
held
that
members
of
local
government
bodies
could
not
be
questioned
about
things
discussed
in
closed
session,
as
part
of
litigation
discovery
to
determine
whether
the
Brown
Act
had
been
violated.
This
creation
of
a
virtual
privilege
outside
the
Evidence
Code
means
that
absent
an
actual
voluntary
admission
by
a
member
of
the
body—which
can
then
be
denied
by
others
present—there
is
no
way
to
acquire
evidence
confirming
whether
matters
have
been
discussed
in
closed
session
with
unlawful
secrecy.
The
Correction:
Allow
members
of
local
bodies
to
be
subjected
to
normal
processes
of
discovery
as
to
particular
discussions
in
closed
session,
in
an
action
to
enforce
the
Brown
Act,
after
appropriate
foundation
suggesting
a
possible
violation,
and
subject
to
a
protective
order
forbidding
the
plaintiff’s
counsel
from
disclosing
the
information
learned
to
any
person,
including
the
plaintiff,
until
it
is
accepted
by
the
court
as
admissible
evidence
of
a
violation.