The California Public Records Act requires that public records, as defined, be open to inspection at all times during the office hours of a state or local agency and that every person has a right to inspect any public record, with specified exceptions. Existing law provides that the act shall not be construed to require the disclosure of specified information concerning utility customers of local agencies, except for certain purposes.

This bill would, instead, provide that the act shall not be construed to require the disclosure of specified information concerning residential utility customers of local agencies. would remove requests for usage rates of industrial, institutional, and commercial water users from that exception to required disclosure. By increasing the duties of local officials, the bill would impose a state-mandated local program.

The California Constitution requires local agencies, for the purpose of ensuring public access to the meetings of public bodies and the writings of public officials and agencies, to comply with a statutory enactment that amends or enacts laws relating to public records or open meetings and contains findings demonstrating that the enactment furthers the constitutional requirements relating to this purpose.

This bill would make legislative findings to that effect.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

The California Public Records Act requires that public records, as defined, be open to inspection at all times during the office hours of the a state or local agency and that every person has a right to inspect any public record, with specified exceptions. Existing law provides that the act shall not be construed to require the disclosure of specified information concerning utility customers of local agencies, except for certain purposes.

This bill would, instead, provide that the act shall not be construed to require the disclosure of specified information concerning residential utility customers of local agencies. By increasing the duties of local officials, the bill would impose a state-mandated local program.

The California Constitution requires local agencies, for the purpose of ensuring public access to the meetings of public bodies and the writings of public officials and agencies, to comply with a statutory enactment that amends or enacts laws relating to public records or open meetings and contains findings demonstrating that the enactment furthers the constitutional requirements relating to this purpose.

This bill would make legislative findings to that effect.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

The Ralph Civil Rights Act of 1976 provides, in part, that all persons within the jurisdiction of this state have the right to be free from any violence, or intimidation by threat of violence, on account of their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation.

This bill would repeal the provision entitling the Ralph Civil Rights Act of 1976, and would instead state the findings of the Legislature that the above-described provision was enacted as part of the Ralph Civil Rights Act of 1976.

 THIRD READING  

Bill No: AB 1520

Author: Mark Stone D, Chau (D), Chiu (D), Cristina Garcia (D), and Holden (D)

:

Vote:

SENATE JUDICIARY COMMITTEE: 5-2, 6/14/16

AYES: Jackson, Hertzberg, Leno, Monning, Wieckowski

NOES: Moorlach, Anderson

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

ASSEMBLY FLOOR: 53-21, 4/16/15 - See last page for vote

SUBJECT:

SOURCE: Author

DIGEST: This bill clarifies that the exemption from public disclosure, under the California Public Records Act, for specified personal information does not apply to industrial, commercial, and institutional water use data.

Senate Floor Amendments of 8/4/16 strike the word “residential” from the bill and instead creates an exception to the exemption for industrial, commercial, and institutional water use data.

ANALYSIS:

Existing law:

1. Declares, pursuant to the California Constitution, the people’s right to transparency in government. (Cal. Const., Art. I, Sec. 3.)
2. Governs the public disclosure of information collected and maintained by public agencies pursuant to the California Public Records Act (CPRA) (Gov. Code Sec. 6250 et seq.) Generally, all public records are accessible to the public upon request, unless the record requested is exempt from public disclosure. (Gov. Code Sec. 6254.) There are 30 general categories of documents or information that are exempt from disclosure, essentially due to the character of the information, and unless it is shown that the public’s interest in disclosure outweighs the public’s interest in non-disclosure of the information, the exempt information may be withheld by the public agency with custody of the information. (Gov. Code Sec. 6254 et seq.)
3. Defines state agency, for purposes of the CPRA, to include every state office, department, division, bureau, board, and commission or other state body or agency, except for the Legislature and the Judiciary. (Gov. Code Sec. 6252.)
4. Exempts from public disclosure records that are the residence address of any person contained in the Department of Housing and Community Development, if the person has requested confidentiality of that information, as specified, and the residence or mailing address of any person in any record of the Department of Motor Vehicles. (Gov. Code Sec. 6254.1.)
5. Exempts from public disclosure the name, credit history, utility usage data, home address, and telephone number of utility customers of local agencies, except that disclosure of name, utility usage data, and the home address of utility customers of local agencies shall be made available upon request, as specified. (Gov. Code Sec. 6254.16.)
6. Exempts from public disclosure corporate financial records and corporate proprietary information, including trade secrets (Gov. Code Secs. 6254, 6254(k), 6254.15, 6276.44), employee personal information (Gov. Code Secs. 6254(c), 6254.3, 6276.34, 6276.36), and information affecting public safety or security (Gov. Code Secs. 6253.9, 6254(aa), (ab), 6254.19, 6254.23).
7. Provides that information held by the California Public Utilities Commission (CPUC), which is deemed confidential under Public Utilities Code Section 583, is not required to be disclosed. (Gov. Code Secs. 6276, 6276.36.)
8. Provides that any person may institute proceedings for injunctive or declarative relief or writ of mandate in any court of competent jurisdiction to enforce his or her right to inspect or to receive a copy of any public record or class of public records, and authorizes an award of court costs and reasonable attorney fees to the plaintiff should the plaintiff prevail in litigation, and those costs and fees are required to be paid by the public agency, as specified (Gov. Code Secs. 6258, 6259(d)). The test for determining whether a record may be withheld from public access is whether the public’s interest in disclosure is outweighed by the public’s interest in withholding disclosure of the record. (Gov. Code Sec. 6255.)

This bill:

1. Clarifies that the public disclosure exemption for the name, credit history, utility usage data, home address, and telephone number of utility customers of local agencies does not apply to industrial, commercial, and institutional water use data.
2. Provides legislative findings and declarations that this bill furthers the purposes of the California Constitution as it relates to the right of public access to the meetings of local public bodies or the writings of local public officials and local agencies, it is in the public’s interest to know the usage rates of industrial, institutional, and commercial water and energy users, and, unlike residential utility users, the privacy interests of industrial, institutional, and commercial users are not sufficient to justify granting an exemption from the public disclosure requirements, in this context.
3. Makes other technical and conforming changes.

Background

The CPRA requires state and local agencies to make public records available for inspection by the public, with specified exceptions. The CPRA provides for the confidentiality and non-disclosure of numerous classes of information, including the residential address of an individual in a record maintained by the Department of Housing and Community Development, the residence or mailing address of any person in any record of the Department of Motor Vehicles, and the name, credit history, utility usage data, home address, or telephone number of utility customers of local agencies. These confidentiality provisions were enacted to protect individual privacy in the wake of several instances of criminal activity against individuals whose residential information was disclosed by public agencies. (AB 1779 (Roos, Chapter 1213, Statutes of 1989); SB 448 (Sher, Chapter 276, Statutes of 1997).)

However, recent news articles charge that SB 448 was actually a measure to weaken the CPRA. According to one article:

In the midst of a historic drought, Californians have no way of knowing who’s guzzling the most water. For the source of this legislation, look no further than Silicon Valley, where the [C]ity of Palo Alto decided it needed to do more to protect the privacy of the tech elite. “Palo Alto, even then, was home to a number of very high-profile tech-related residents,” said Ariel Calonne, who was the city attorney at the time. “We had fairly extensive databases that covered a lot of sensitive information for a lot of noteworthy people, and that became a concern for our utility managers.” (K. Mieszkowski, L. Williams, To Shield Tech Executives, California’s Biggest Water Users are Secret (Apr. 16, 2015) <https://www.revealnews.org/article/californias-biggest-water-users-are-secret-to-shield-tech-executives/ [as of June 28, 2015].)

A Sacramento Bee article also noted that “[s]ome cities and water agencies used to make usage data public, including the Desert Water Agency and Coachella Valley Water District in Southern California, which have some of the state’s highest per-capita water use. But after The Desert Sun newspaper in March 2014 published who was pumping the most groundwater, both agencies stopped. The First Amendment Coalition sued the agencies to obtain usage data for major businesses. Desert Water settled and agreed to make the numbers available; they show that golf resorts and country clubs are among the biggest users. Coachella Valley, however, refused – and won in court last month.” (Editorial Board, California Water Use Numbers Should Flow Freely (Apr. 28, 2015) The Sacramento Bee <http://www.sacbee.com/opinion/editorials/article19426455.html [as of June 28, 2015].)

This bill seeks to expand disclosure by clarifying that the confidentiality provisions under the CPRA for utility customers pertain to residential customers of a local agency.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

SUPPORT: (Verified 8/10/16)

California Coastal Protection Network

California League of Conservation Voters

California Newspaper Publishers Association

Californians Aware

Clean Water Action

Community Water Center

Environmental Justice Coalition for Water

Environmental Working Group

First Amendment Coalition

Natural Resources Defense Council

Sierra Club California

TreePeople

OPPOSITION: (Verified 8/10/16)

African American Farmers of California

Agricultural Council of California

American Coatings Association

American Pistachio Growers

American Planning Association

Association of California Egg Farmers

Automotive Specialty Products Alliance

Building Owners and Managers Association of California

California Asphalt Pavement Association

California Association of Nurseries and Garden Centers

California Business Properties Association; California Chamber of Commerce

California Citrus Mutual

California Construction and Industrial Materials Association

California Cotton Ginners Association

California Cotton Growers Association

California Farm Bureau Federation

California Fresh Fruit Association

California Grain and Feed Association

California Large Energy Consumers Association

California League of Food Processors

California Manufacturers and Technology Association

California Municipal Utilities Association

California Paint Council

California Restaurant Association

California Retailers Association

California Seed Association

California Special Districts Association

California Tomato Growers Association

California Warehouse Association

Chemical Industry Council of California

Consumer Specialty Products Association

Family Winemakers of California

Grocery Manufacturers of America

Independent Energy Producers

International Council of Shopping Centers

NAIOP – Commercial Real Estate Development Association

National Federation of Independent Business

National Hmong American Farmers

Nisei Farmers League

Northern California Power Agency

Pacific Coast Rendering Association

Sacramento Municipal Utility District

UnitedAG

Western Carwash Association

Western Plant Health Association

Western States Petroleum Association

Wine Institute

ARGUMENTS IN SUPPORT: The First Amendment Coalition, in support, argues that “[t]he public is entitled to know – indeed, the public has a need to know – water usage data of commercial and other institutional users. Access to this information is the only way for the public to assess the effectiveness of government water conservation policies. The severe [drought] afflicting California only underscores the importance of this access.” Further, the California Newspaper Publishers Association, in support, asserts that this bill “would provide the public with a better understanding of whether the policies of local agencies are effective in achieving state mandated cut-backs and whether enforcement is selective or is fairly applied.”

ARGUMENTS IN OPPOSITION: The California Municipal Utilities Association, in opposition, states that “[u]nder existing law, private utilities are not required to share their utility customer information upon public request. Under SB 448 (Sher, Chp. 276, Statutes 1997), public safety concerns and the issue of ‘parity’ between privacy rights that apply only to private utility customers versus no such protections for utility customers of a public agency prompted the Legislature to ensure privacy protections are equal for all utility customers. The current law provides essential limited protections on the public’s right to access individual customer information, striking a balance between the right to public information and the right for both residential and commercial customer’s usage information to be withheld. In lieu of the six exceptions [under the CPRA], it is unclear why ‘names, credit histories, usage data, home addresses, or telephone numbers’ should only apply to residential customers when such protections benefit all customers.”

The opposition further asserts that “current law also levels the playing field between customers of private investor owned utilities and utility customers of local agencies. In 1997, SB 448 (Sher) determined that utility usage information from local agencies was not public information. Yet, this bill is deliberately trying to overturn that, picking and choosing which information should remain private. Most large commercial, industrial, and institutional users of water and energy pay based on volume they use. Under existing regulations, local water districts, for example, are able to determine if conservation goals have been met. If the conservation goal is not met, the local agency can impose fines of up to $10,000 per violation, and $500 per day thereafter for every day the violation continues to enforce compliance.” The opposition states that it is also unclear how this bill, by making commercial utility usage information public, would help reduce water usage or energy consumption.

ASSEMBLY FLOOR: 53-21, 4/16/15

AYES: Alejo, Baker, Bloom, Bonilla, Bonta, Brown, Burke, Calderon, Campos, Chau, Chiu, Chu, Cooley, Cooper, Dababneh, Daly, Dodd, Eggman, Frazier, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Roger Hernández, Holden, Irwin, Jones-Sawyer, Levine, Lopez, Low, McCarty, Medina, Mullin, Nazarian, O'Donnell, Patterson, Perea, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Mark Stone, Thurmond, Ting, Waldron, Weber, Williams, Wood, Atkins

NOES: Achadjian, Travis Allen, Bigelow, Brough, Chávez, Dahle, Beth Gaines, Gallagher, Gray, Grove, Hadley, Harper, Jones, Lackey, Maienschein, Mathis, Mayes, Obernolte, Olsen, Wagner, Wilk

NO VOTE RECORDED: Chang, Kim, Linder, Melendez, Quirk, Steinorth

Prepared by:

8/10/16 15:35:00

**** END ****

 THIRD READING  

Bill No: AB 1520

Author:

:

Vote:

SENATE JUDICIARY COMMITTEE: 5-2, 6/14/16

AYES: Jackson, Hertzberg, Leno, Monning, Wieckowski

NOES: Moorlach, Anderson

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

ASSEMBLY FLOOR: 53-21, 4/16/15 - See last page for vote

SUBJECT:

SOURCE: Author

DIGEST: This bill clarifies that the exemption from public disclosure, under the California Public Records Act, for specified personal information is limited to residential utility customers.

ANALYSIS:

Existing law:

1. Declares, pursuant to the California Constitution, the people’s right to transparency in government. (Cal. Const., Art. I, Sec. 3.)
2. Governs the public disclosure of information collected and maintained by public agencies pursuant to the California Public Records Act (CPRA) (Gov. Code Sec. 6250 et seq.) Generally, all public records are accessible to the public upon request, unless the record requested is exempt from public disclosure. (Gov. Code Sec. 6254.) There are 30 general categories of documents or information that are exempt from disclosure, essentially due to the character of the information, and unless it is shown that the public’s interest in disclosure outweighs the public’s interest in non-disclosure of the information, the exempt information may be withheld by the public agency with custody of the information. (Gov. Code Sec. 6254 et seq.)
3. Defines state agency, for purposes of the CPRA, to include every state office, department, division, bureau, board, and commission or other state body or agency, except for the Legislature and the Judiciary. (Gov. Code Sec. 6252.)
4. Exempts from public disclosure records that are the residence address of any person contained in the Department of Housing and Community Development, if the person has requested confidentiality of that information, as specified, and the residence or mailing address of any person in any record of the Department of Motor Vehicles. (Gov. Code Sec. 6254.1.)
5. Exempts from public disclosure the name, credit history, utility usage data, home address, and telephone number of utility customers of local agencies, except that disclosure of name, utility usage data, and the home address of utility customers of local agencies shall be made available upon request, as specified. (Gov. Code Sec. 6254.16.)
6. Exempts from public disclosure corporate financial records and corporate proprietary information, including trade secrets (Gov. Code Secs. 6254, 6254(k), 6254.15, 6276.44), employee personal information (Gov. Code Secs. 6254(c), 6254.3, 6276.34, 6276.36), and information affecting public safety or security (Gov. Code Secs. 6253.9, 6254(aa), (ab), 6254.19, 6254.23).
7. Provides that information held by the California Public Utilities Commission, which is deemed confidential under Public Utilities Code Section 583, is not required to be disclosed. (Gov. Code Secs. 6276, 6276.36.)
8. Provides that any person may institute proceedings for injunctive or declarative relief or writ of mandate in any court of competent jurisdiction to enforce his or her right to inspect or to receive a copy of any public record or class of public records, and authorizes an award of court costs and reasonable attorney fees to the plaintiff should the plaintiff prevail in litigation, and those costs and fees are required to be paid by the public agency, as specified (Gov. Code Secs. 6258, 6259(d)). The test for determining whether a record may be withheld from public access is whether the public’s interest in disclosure is outweighed by the public’s interest in withholding disclosure of the record. (Gov. Code Sec. 6255.)

This bill:

1. Clarifies that the public disclosure exemption for the name, credit history, utility usage data, home address, and telephone number of utility customers of local agencies applies to residential customers.
2. Provides legislative findings and declarations that this bill furthers the purposes of the California Constitution as it relates to the right of public access to the meetings of local public bodies or the writings of local public officials and local agencies, it is in the public’s interest to know the usage rates of industrial, institutional, and commercial water and energy users, and, unlike residential utility users, the privacy interests of industrial, institutional, and commercial users are not sufficient to justify granting an exemption from the public disclosure requirements, in this context.
3. Makes other technical and conforming changes.

Background

The CPRA requires state and local agencies to make public records available for inspection by the public, with specified exceptions. The CPRA provides for the confidentiality and non-disclosure of numerous classes of information, including the residential address of an individual in a record maintained by the Department of Housing and Community Development, the residence or mailing address of any person in any record of the Department of Motor Vehicles, and the name, credit history, utility usage data, home address, or telephone number of utility customers of local agencies. These confidentiality provisions were enacted to protect individual privacy in the wake of several instances of criminal activity against individuals whose residential information was disclosed by public agencies. (AB 1779 (Roos, Chapter 1213, Statutes of 1989); SB 448 (Sher, Chapter 276, Statutes of 1997).)

However, recent news articles charge that SB 448 was actually a measure to weaken the CPRA. According to one article:

In the midst of a historic drought, Californians have no way of knowing who’s guzzling the most water. For the source of this legislation, look no further than Silicon Valley, where the [C]ity of Palo Alto decided it needed to do more to protect the privacy of the tech elite. “Palo Alto, even then, was home to a number of very high-profile tech-related residents,” said Ariel Calonne, who was the city attorney at the time. “We had fairly extensive databases that covered a lot of sensitive information for a lot of noteworthy people, and that became a concern for our utility managers.” (K. Mieszkowski, L. Williams, To Shield Tech Executives, California’s Biggest Water Users are Secret (Apr. 16, 2015) <https://www.revealnews.org/article/californias-biggest-water-users-are-secret-to-shield-tech-executives/ [as of June 28, 2015].)

A Sacramento Bee article also noted that “[s]ome cities and water agencies used to make usage data public, including the Desert Water Agency and Coachella Valley Water District in Southern California, which have some of the state’s highest per-capita water use. But after The Desert Sun newspaper in March 2014 published who was pumping the most groundwater, both agencies stopped. The First Amendment Coalition sued the agencies to obtain usage data for major businesses. Desert Water settled and agreed to make the numbers available; they show that golf resorts and country clubs are among the biggest users. Coachella Valley, however, refused – and won in court last month.” (Editorial Board, California Water Use Numbers Should Flow Freely (Apr. 28, 2015) The Sacramento Bee <http://www.sacbee.com/opinion/editorials/article19426455.html [as of June 28, 2015].)

This bill seeks to expand disclosure by clarifying that the confidentiality provisions under the CPRA for utility customers pertain to residential customers of a local agency.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

SUPPORT: (Verified 6/28/16)

California Coastal Protection Network

California League of Conservation Voters

California Newspaper Publishers Association

Californians Aware

Clean Water Action

Community Water Center

Environmental Justice Coalition for Water

Environmental Working Group

First Amendment Coalition

Natural Resources Defense Council

Sierra Club California

TreePeople

OPPOSITION: (Verified 6/27/16)

African American Farmers of California

Agricultural Council of California

American Coatings Association

American Pistachio Growers

American Planning Association

Association of California Egg Farmers

Automotive Specialty Products Alliance

Building Owners and Managers Association of California

California Asphalt Pavement Association

California Association of Nurseries and Garden Centers

California Business Properties Association

California Chamber of Commerce

California Citrus Mutual

California Construction and Industrial Materials Association

California Cotton Ginners Association

California Cotton Growers Association

California Farm Bureau Federation

California Fresh Fruit Association

California Grain and Feed Association

California Large Energy Consumers Association

California League of Food Processors

California Manufacturers and Technology Association

California Municipal Utilities Association

California Paint Council

California Restaurant Association

California Retailers Association

California Seed Association

California Special Districts Association

California Tomato Growers Association

California Warehouse Association

Chemical Industry Council of California

Consumer Specialty Products Association

Family Winemakers of California

Grocery Manufacturers of America

Independent Energy Producers

International Council of Shopping Centers

NAIOP – Commercial Real Estate Development Association

National Federation of Independent Business

National Hmong American Farmers

Nisei Farmers League

Northern California Power Agency

Pacific Coast Rendering Association

Sacramento Municipal Utility District

UnitedAG

Western Carwash Association

Western Plant Health Association

Western States Petroleum Association

Wine Institute

ARGUMENTS IN SUPPORT: The First Amendment Coalition, in support, argues that “[t]he public is entitled to know – indeed, the public has a need to know – water usage data of commercial and other institutional users. Access to this information is the only way for the public to assess the effectiveness of government water conservation policies. The severe [drought] afflicting California only underscores the importance of this access.” Further, the California Newspaper Publishers Association, in support, asserts that this bill “would provide the public with a better understanding of whether the policies of local agencies are effective in achieving state mandated cut-backs and whether enforcement is selective or is fairly applied.”

ARGUMENTS IN OPPOSITION: The California Municipal Utilities Association, in opposition, states that “[u]nder existing law, private utilities are not required to share their utility customer information upon public request. Under SB 448 (Sher, Chp. 276, Statutes 1997), public safety concerns and the issue of ‘parity’ between privacy rights that apply only to private utility customers versus no such protections for utility customers of a public agency prompted the Legislature to ensure privacy protections are equal for all utility customers. The current law provides essential limited protections on the public’s right to access individual customer information, striking a balance between the right to public information and the right for both residential and commercial customer’s usage information to be withheld. In lieu of the six exceptions [under the CPRA], it is unclear why ‘names, credit histories, usage data, home addresses, or telephone numbers’ should only apply to residential customers when such protections benefit all customers.”

The opposition further asserts that “current law also levels the playing field between customers of private investor owned utilities and utility customers of local agencies. In 1997, SB 448 (Sher) determined that utility usage information from local agencies was not public information. Yet, this bill is deliberately trying to overturn that, picking and choosing which information should remain private. Most large commercial, industrial, and institutional users of water and energy pay based on volume they use. Under existing regulations, local water districts, for example, are able to determine if conservation goals have been met. If the conservation goal is not met, the local agency can impose fines of up to $10,000 per violation, and $500 per day thereafter for every day the violation continues to enforce compliance.” The opposition states that it is also unclear how this bill, by making commercial utility usage information public, would help reduce water usage or energy consumption.

ASSEMBLY FLOOR: 53-21, 4/16/15

AYES: Alejo, Baker, Bloom, Bonilla, Bonta, Brown, Burke, Calderon, Campos, Chau, Chiu, Chu, Cooley, Cooper, Dababneh, Daly, Dodd, Eggman, Frazier, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Roger Hernández, Holden, Irwin, Jones-Sawyer, Levine, Lopez, Low, McCarty, Medina, Mullin, Nazarian, O'Donnell, Patterson, Perea, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Mark Stone, Thurmond, Ting, Waldron, Weber, Williams, Wood, Atkins

NOES: Achadjian, Travis Allen, Bigelow, Brough, Chávez, Dahle, Beth Gaines, Gallagher, Gray, Grove, Hadley, Harper, Jones, Lackey, Maienschein, Mathis, Mayes, Obernolte, Olsen, Wagner, Wilk

NO VOTE RECORDED: Chang, Kim, Linder, Melendez, Quirk, Steinorth

Prepared by:

7/5/16 13:55:37

**** END ****

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2015-2016 Regular Session

Bill No: AB 1520 (Author:Committee on Judiciary)

Version: July 2, 2015

Hearing Date: July 14, 2016

Fiscal: Yes

Urgency: No

Consultant: NR

SUBJECT

Public Records: exemptions: residential utility customers

DESCRIPTION

This bill, under the California Public Records Act, would clarify the exemption from public disclosure for specified personal information of residential utility customers.

BACKGROUND

The California Public Records Act (CPRA) requires state and local agencies to make public records available for inspection by the public, with specified exceptions. The CPRA provides for the confidentiality and non-disclosure of numerous classes of information, including the residential address of an individual in a record maintained by the Department of Housing and Community Development, the residence or mailing address of any person in any record of the Department of Motor Vehicles, and the name, credit history, utility usage data, home address, or telephone number of utility customers of local agencies. These confidentiality provisions were enacted to protect individual privacy in the wake of several instances of criminal activity against individuals whose residential information was disclosed by public agencies. (AB 1779 (Roos, Chapter 1213, Statutes of 1989); SB 448 (Sher, Chapter 276, Statutes of 1997).)

However, recent news articles charge that SB 448 was actually a measure to weaken the CPRA. According to one article:

In the midst of a historic drought, Californians have no way of knowing who’s guzzling the most water. For the source of this legislation, look no further than Silicon Valley, where the [C]ity of Palo Alto decided it needed to do more to protect the privacy of the tech elite. “Palo Alto, even then, was home to a number of very high-profile tech-related residents,” said Ariel Calonne, who was the city attorney at the time. “We had fairly extensive databases that covered a lot of sensitive information for a lot of noteworthy people, and that became a concern for our utility managers.”

In the name of privacy and security, the [C]ity of Palo Alto backed legislation sponsored by Byron Sher, the local [S]tate [S]enator. It allowed utilities to keep secret their customers’ “utility usage data” – that is, how much water and power they were using. Other supporters included the California Municipal Utilities Association and the League of California Cities.

At the time, the Public Records Act required agencies that operated utilities to make customers’ bills public upon request. During a 1991 drought, the press exposed California water wasters by relying on data from water utilities. The Los Angeles Times found that the top 100 water users in San Diego gulped down 3,000 gallons or more a day, while the average household used 349 gallons. Atop the list of the biggest users: The San Diego Union-Tribune’s publisher, Helen Copley, who pumped an average of 10,203 gallons a day on her 9.5-acre La Jolla estate, which was tended by 10 full-time gardeners. Dozens of those top water users complained that publicizing their water use would expose them to security concerns or ridicule, the L.A. Times reported.

In lobbying to change the law, proponents of the Sher measure noted that utility bills include ratepayers’ home addresses. They argued that it was dangerous to make that information public, citing the 1989 shooting of actress Rebecca Schaeffer, who was killed by a stalker who got her address from Department of Motor Vehicles records. The Legislature restricted access after that.

State agencies routinely redact personal information in releasing public records to address security concerns. But proponents of the measure also argued that because private utilities like PG&E did not have to release utility usage data, public ones shouldn’t have to either.

Last year, the nonprofit First Amendment Coalition sued to get water usage data for major business customers of the Coachella Valley Water District in the Palm Springs area, where golf courses are prodigious water users. Peter Scheer, the coalition’s executive director, argued that the 1997 law was intended to protect the privacy only of people, not corporations. Earlier this month, a judge ruled that corporate water bills also should remain secret, saying that while businesses don’t have the same privacy rights as people, the law nevertheless applies to all customers.

Under present law, there are a few exceptions that allow for some limited public scrutiny of water bills. Last year, The Center for Investigative Reporting used the public-official exemption to reveal the water use of officials who weren’t living up to their own calls for conservation. Many water agencies redacted the home addresses of the officials but provided copies of their bills. The law also allows the agencies to disclose customers’ water use if they have violated “utility usage policies.” As water agencies restrict use in response to Gov. Jerry Brown’s recently announced mandatory water cuts, scofflaws could find themselves in the public eye. But only if the agencies feel like sharing that information. (K. Mieszkowski, L. Williams, To Shield Tech Executives, California’s Biggest Water Users are Secret (Apr. 16, 2015) <https://www.revealnews.org/article/californias-biggest-water-users-are-secret-to-shield-tech-executives/> [as of June 28, 2015].)

A Sacramento Bee article also noted that “[s]ome cities and water agencies used to make usage data public, including the Desert Water Agency and Coachella Valley Water District in Southern California, which have some of the state’s highest per-capita water use. But after The Desert Sun newspaper in March 2014 published who was pumping the most groundwater, both agencies stopped. The First Amendment Coalition sued the agencies to obtain usage data for major businesses. Desert Water settled and agreed to make the numbers available; they show that golf resorts and country clubs are among the biggest users. Coachella Valley, however, refused – and won in court last month.” (Editorial Board, California Water Use Numbers Should Flow Freely (Apr. 28, 2015) The Sacramento Bee <http://www.sacbee.com/opinion/editorials/article19426455.html> [as of June 28, 2015].)

This bill seeks to expand disclosure by clarifying that the confidentiality provisions under the CPRA for utility customers pertain to residential customers of a local agency.

CHANGES TO EXISTING LAW

Existing law, the California Constitution, declares the people’s right to transparency in government. (“The people have the right of access to information concerning the conduct of the people’s business, and therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny....”) (Cal. Const., art. I, Sec. 3.)

Existing law provides individuals an express right to privacy specifically designed to “prevent government ... from collecting and stockpiling unnecessary information about us and misusing information gathered for one purpose in order to serve another purpose.” (Cal. Const., art. I., Sec. 1; White v. Davis (1975) 13 Cal.3d 757, 774.)

Existing law, the California Public Records Act (CPRA), governs the public disclosure of information collected and maintained by public agencies. (Gov. Code Sec. 6250 et seq.) Generally, all public records are accessible to the public upon request, unless the record requested is exempt from public disclosure. (Gov. Code Sec. 6254.) There are 30 general categories of documents or information that are exempt from disclosure, essentially due to the character of the information, and unless it is shown that the public’s interest in disclosure outweighs the public’s interest in non-disclosure of the information, the exempt information may be withheld by the public agency with custody of the information. (Gov. Code Sec. 6254 et seq.)

Existing law defines state agency, for purposes of the CPRA, to include every state office, department, division, bureau, board, and commission or other state body or agency, except for the Legislature and the Judiciary. (Gov. Code Sec. 6252.)

Existing law exempts from public disclosure records that are the residence address of any person contained in the Department of Housing and Community Development, if the person has requested confidentiality of that information, as specified, and the residence or mailing address of any person in any record of the Department of Motor Vehicles. (Gov. Code Sec. 6254.1.)

Existing law exempts from public disclosure the name, credit history, utility usage data, home address, and telephone number of utility customers of local agencies, except that disclosure of name, utility usage data, and the home address of utility customers of local agencies shall be made available upon request as follows:

• to an agent or authorized family member of the person to whom the information pertains;
• to an officer or employee of another governmental agency when necessary for the performance of its official duties;
• upon court order or the request of a law enforcement agency relative to an ongoing investigation;
• upon determination by the local agency that the utility customer who is the subject of the request has used utility services in a manner inconsistent with applicable local utility usage policies;
• upon determination by the local agency that the utility customer who is the subject of the request is an elected or appointed official with authority to determine the utility usage policies of the local agency, provided that the home address of an appointed official shall not be disclosed without his or her consent; and
• upon determination by the local agency that the public interest in disclosure of the information clearly outweighs the public interest in nondisclosure. (Gov. Code Sec. 6254.16.)

Existing law exempts from public disclosure corporate financial records and corporate proprietary information, including trade secrets (Gov. Code Secs. 6254, 6254(k), 6254.15, 6276.44), employee personal information (Gov. Code Secs. 6254(c), 6254.3, 6276.34, 6276.36), and information affecting public safety or security (Gov. Code Secs. 6253.9, 6254(aa), (ab), 6254.19, 6254.23).

Existing law provides that information held by the CPUC, which is deemed confidential under Public Utilities Code Section 583, is not required to be disclosed. (Gov. Code Secs. 6276, 6276.36.)

Existing law provides that no information, unless specifically required, furnished to the CPUC by a public utility, business that is a subsidiary or affiliate of a public utility, or corporation that holds a controlling interest in a public utility, shall be publicly available unless ordered to be public by the CPUC in the course of a hearing or proceeding. (Pub. Util. Code Sec. 583.) Any present or former employee of the CPUC who divulges any confidential public utility information provided to the CPUC is guilty of a misdemeanor. (Id.)

Existing law provides that any person may institute proceedings for injunctive or declarative relief or writ of mandate in any court of competent jurisdiction to enforce his or her right to inspect or to receive a copy of any public record or class of public records, and authorizes an award of court costs and reasonable attorney fees to the plaintiff should the plaintiff prevail in litigation, and those costs and fees are required to be paid by the public agency, as specified (Gov. Code Secs. 6258, 6259(d)). The test for determining whether a record may be withheld from public access is whether the public’s interest in disclosure is outweighed by the public’s interest in withholding disclosure of the record. (Gov. Code Sec. 6255.)

This bill would clarify that the public disclosure exemption for the name, credit history, utility usage data, home address, and telephone number of utility customers of local agencies applies to residential customers.

This bill would provide legislative findings and declarations that this bill furthers the purposes of the California Constitution as it relates to the right of public access to the meetings of local public bodies or the writings of local public officials and local agencies, it is in the public’s interest to know the usage rates of industrial, institutional, and commercial water and energy users, and, unlike residential utility users, the privacy interests of industrial, institutional, and commercial users are not sufficient to justify granting an exemption from the public disclosure requirements, in this context.

This bill would also make other technical and conforming changes.

COMMENT

1. Stated need for the bill

The author writes:

The four year drought in California has, among other things, led to calls for water conservation reductions, especially for urban users. Efforts by newspapers and others to determine the largest water users within a district or city, in order to determine whether they were meeting conservation goals, have been stymied by Government Code Section 6254.16.

However, when Government Code Section 6254.16 was added to the [California Public Records Act (CPRA)] in 1997, it was primarily concerned about the privacy rights of individual, residential users (see below). Commercial, industrial, and institutional users do not have the same privacy concerns. AB 1520 would continue to protect the legitimate privacy interests of residential users while serving the public’s interest in determining whether the largest users are meeting conservation goals. Although the drought is the primary impetus for this bill, it should be noted that this bill would apply to all utilities, not just water.

2. Clarifying confidentiality of utility consumer’s information

Under existing law, a utility consumer’s name, credit history, utility usage data, home address, and telephone number are exempted from public disclosure under the CPRA. (Gov. Code Sec. 6254.16.) This information is required to be disclosed only in the following circumstances:

• to the utility customer’s agent or authorized family member;
• to an officer or employee of another governmental agency when necessary for the performance of its official duties;
• upon court order or the request of a law enforcement agency relative to an ongoing investigation;
• upon determination by the local agency that the utility customer has used utility services in a manner inconsistent with applicable local utility usage policies;
• upon determination by the local agency that the utility customer is an elected or appointed official with authority to determine the utility usage policies of the local agency, provided that the home address of an appointed official is not disclosed without his or her consent; and
• upon determination by the local agency that the public interest in disclosure of the information clearly outweighs the public interest in nondisclosure. (Gov. Code Sec. 6254.16.)

Following below average precipitation since 2007, and record high temperatures and record dry conditions last year, California is in an unprecedented drought in which nearly all of California has been affected. In January of this year, Governor Brown declared a drought State of Emergency and directed state officials to take all necessary actions to prepare for water shortages. (California Drought, <http://ca.gov/drought/> [as of June 28, 2016].) The drought has called into question who is using the most water in California. According to the author, “[n]otwithstanding [Government Code] Section 6254.16, until fairly recently some cities and water agencies used to make usage data available. After all, the [California Public Records Act (CPRA)] does not prohibit disclosure; it merely states nothing requires the agency to disclose the information. Agencies may disclose it if they like. However, as the drought has prompted new requests for information, many cities and agencies have stopped disclosing this information and they cite Section 6254.16 as justification. For example, the Desert Water Agency and Coachella Water District stopped providing this data after a local newspaper, in March of 2014, published a list of the top users. After the First Amendment Coalition filed a lawsuit in August of 2014 to obtain usage data for large consumers, the Desert Water Agency settled and made the data available. . . . However, the Coachella Water District refused to settle and eventually won in court, based on the exemption provided in Government Code Section 9254.16.” [Emphasis in original.]

Recent allegations have been made that the legislation enacting the current CPRA exemption for utility customer usage data claimed to be about protecting individual privacy in the wake of several tragedies involving the use of personal information disclosed by public agencies, but in reality, according to several news articles, the exemption was aimed at protecting high-profile Californians using significant amounts of water during the California drought in the early 1990s. Now, public water districts are using the exemption to deny public access to water usage of companies, such as golf courses, in order to determine which entities are the biggest water wasters.

The First Amendment Coalition, in support, argues that “[t]he public is entitled to know – indeed, the public has a need to know – water usage data of commercial and other institutional users. Access to this information is the only way for the public to assess the effectiveness of government water conservation policies. The severe [drought] afflicting California only underscores the importance of this access.” Further, the California Newspapers Association, Inc., in support, asserts that this bill “would provide the public with a better understanding of whether the policies of local agencies are effective in achieving state mandated cut-backs and whether enforcement is selective or is fairly applied.”

This bill would clarify that the CPRA exemption for utility customer information, including the usage, home address, and telephone number of the customer, only applies to residential customers. In this way, this CPRA exemption would no longer apply to commercial utility customers.

3. Oppositions’ concerns

The opposition, a coalition of business groups, asserts that this bill “inappropriately makes industrial, institutional, and commercial water and energy use public information. It is an attempt to shame business under the guise of ensuring that large users are meeting conservation goals.” Further, the opposition argues that current utility usage information privacy protections serve an important purpose and protect commercial users from their competitors gaining information and knowledge regarding energy and water usage, which could be used by competitors to determine production capacity and other production information. The opposition argues that this usage information serves no public purpose other than to exploit business operations and to shame businesses who may be considered unfavorable to some and provide an avenue for protest. On this point in particular, the California Manufacturers & Technology Association states that “[t]his bill seeks to take advantage of the current and significant drought that plagues California to eliminate a privacy right of [commercial, industrial, and institutional (CII)] utility customers they currently rely on to help protect information regarding their processes from becoming public and available to competitors who may be able to use utility data to gain confidential information [which undermines] the privacy interests of California manufacturers who are subject to competition from out-of-state manufacturers who will not be subject to similar data disclosures. California manufacturers are particularly sensitive to the release of CII utility data in light of the current drought as some may seek to use this information to publicly shame a company . . . [which, as] evidenced by recent media reports, we already see this taking place across California without context, forcing companies to expend valuable resources to repair their reputation unjustly disparaged by those seeking to push water conservation burdens onto others.”

The opposition further asserts that “current law also levels the playing field between customers of private investor owned utilities and utility customers of local agencies. In 1997, SB 448 (Sher) determined that utility usage information from local agencies was not public information. Yet, this bill is deliberately trying to overturn that, picking and choosing which information should remain private. Most large commercial, industrial, and institutional users of water and energy pay based on volume they use. Under existing regulations, local water districts, for example, are able to determine if conservation goals have been met. If the conservation goal is not met, the local agency can impose fines of up to $10,000 per violation, and $500 per day thereafter for every day the violation continues to enforce compliance.” The opposition states that it is also unclear how this bill, by making commercial utility usage information public, would help reduce water usage or energy consumption.

The California Municipal Utilities Association, in opposition, states that “[u]nder existing law, private utilities are not required to share their utility customer information upon public request. Under SB 448 (Sher, Chp. 276, Statutes 1997), public safety concerns and the issue of ‘parity’ between privacy rights that apply only to private utility customers versus no such protections for utility customers of a public agency prompted the Legislature to ensure privacy protections are equal for all utility customers. The current law provides essential limited protections on the public’s right to access individual customer information, striking a balance between the right to public information and the right for both residential and commercial customer’s usage information to be withheld. In lieu of the six exceptions [under the CPRA], it is unclear why ‘names, credit histories, usage data, home addresses, or telephone numbers’ should only apply to residential customers when such protections benefit all customers.”

The Sacramento Municipal Utility District, in opposition, notes that “investor-owned utilities are not subject to the [CPRA]. Consequently, investor[-]owned utilities (70 [percent] of the State) are able to protect the confidentiality of proprietary business and customer information. This law would effectively mean that commercial or industrial customers in our service territory have less of a privacy interest in their commercial data than their competitors located in the service territory of an investor[-]owned utility.”

In response, the author states that the coalition’s argument that the usage data would be improperly used by competitors is essentially a trade secret argument, for which there is already an exemption from disclosure under the CPRA. With respect to the coalition’s arguments, the author also writes: “They claim that this would create an ‘uneven playing field’ because investor-owned utilities (IOU) like PG&E are not ‘exempted’ from [C]PRA request. . . . Actually, IOUs are not ‘exempted’ from the [C]PRA; as a private enterprise they are not covered by [C]PRA at all, so there is no need for an exemption. [C]PRA only covers government entities. Also, IOUs are regulated by the PUC, and PUC records are subject to [C]PRA.”

As for the coalition’s assertion that this bill would be an effort to shame businesses, the author states that “[t]his is partly true. But it is also a way for people, the press, and policy-makers to get a handle on who the major users are, so as to encourage and/or make policies accordingly.” Regarding the coalition’s claim that the public has no interest in usage data because the local agency can impose fines on users who violate existing limits, the author asserts that “[i]t’s true that the local agency can impose a fine on a violator. In fact, if the agency has determined that a user has violated a policy, subdivision (d) of [Government Code] Section 6254.16 says that the information is not exempt and should be disclosed. But whether or not an agency has taken an action against a user, the public still has a legitimate interest in usage data. After all, the public may want to ensure that the agency is appropriately taking against violators or failing to do so.”

The author also states that “rebuttals to all of the above include[:] (1) before 1997 this information was not exempted and there is no evidence of any harm that resulted from it; (2) even after 1997, some water districts and other agencies voluntarily disclosed this information ([C]PRA exemptions, after all, say that ‘nothing requires’ disclosures of these items, but an agency may still disclose and many did until recently); (3) the legislative history for this section shows that it was concerned with privacy of individuals. But for commercial enterprises, there is no comparable privacy or confidentiality interest – except perhaps trade secrets, which are already exempted.”

Support: California Newspaper Publishers Association; Californians Aware; California Coastal Protection Network; California League of Conservation Voters; Clean Water Action; Community Water Center; Environmental Justice Coalition for Water; Environmental Working Group; First Amendment Coalition; Leadership Counsel for Justice and Accountability; Natural Resources Defense Council; Sierra Club California; TreePeople; Union of Concerned Scientists

Opposition: African American Farmers of California; Agricultural Council of California; American Pistachio Growers; American Coatings Association; Association of California Egg Farmers; Association of California Water Agencies; Automotive Specialty Products Alliance; Building Owners and Managers Association of California; California Association of Nurseries and Garden Centers; California Business Properties Association; California Chamber of Commerce; California Citrus Mutual; California Construction and Industrial Materials Association; California Cotton Ginners Association; California Cotton Growers Association; California Farm Bureau Federation; California Fresh Fruit Association; California Grain and Feed Association; California League of Food Processors; California Manufacturers and Technology Association; California Municipal Utilities Association; California Paint Council; California Restaurant Association; California Seed Association; California Tomato Growers Association; California Warehouse Association; Chemical Industry Council of California; Consumer Specialty Products Association; Family Winemakers of California; Grocery Manufacturers of America; Independent Energy Producers; International Council of Shopping Centers; NAIOP – Commercial Real Estate Development Association; National Federation of Independent Business; National Hmong American Farmers; Nisei Farmers League; Pacific Coast Rendering Association; Sacramento Municipal Utility District; UnitedAg; Western Plant Health Association; Western States Petroleum Association; Wine Institute

HISTORY

Source: Author

Related Pending Legislation: SB 20 (Pavley, 2015) would repeal existing law makes confidential reports of completion of water wells, and, instead, require the Department of Water Resources to make the reports available to the public. SB 20 is currently in the Assembly Water, Parks and Wildlife Committee.

Prior Legislation:

SB 448 (Sher, Chapter 276, Statutes of 1997) See Background.

AB 1779 (Roos, Chapter 1213, Statutes of 1989) See Background.

Prior Vote: Prior votes not relevant

**************

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2015-2016 Regular Session

Bill No: AB 1520 (Author:Committee on Judiciary)

Version: July 2, 2015

Hearing Date: July 14, 2015

Fiscal: Yes

Urgency: No

Consultant: TMW

SUBJECT

Public Records: exemptions: residential utility customers

DESCRIPTION

This bill, under the California Public Records Act, would clarify the exemption from public disclosure for specified personal information of residential utility customers.

BACKGROUND

The California Public Records Act (CPRA) requires state and local agencies to make public records available for inspection by the public, with specified exceptions. The CPRA provides for the confidentiality and non-disclosure of numerous classes of information, including the residential address of an individual in a record maintained by the Department of Housing and Community Development, the residence or mailing address of any person in any record of the Department of Motor Vehicles, and the name, credit history, utility usage data, home address, or telephone number of utility customers of local agencies. These confidentiality provisions were enacted to protect individual privacy in the wake of several instances of criminal activity against individuals whose residential information was disclosed by public agencies. (AB 1779 (Roos, Chapter 1213, Statutes of 1989); SB 448 (Sher, Chapter 276, Statutes of 1997).)

However, recent news articles charge that SB 448 was actually a measure to weaken the CPRA. According to one article:

In the midst of a historic drought, Californians have no way of knowing who’s guzzling the most water. For the source of this legislation, look no further than Silicon Valley, where the [C]ity of Palo Alto decided it needed to do more to protect the privacy of the tech elite. “Palo Alto, even then, was home to a number of very high-profile tech-related residents,” said Ariel Calonne, who was the city attorney at the time. “We had fairly extensive databases that covered a lot of sensitive information for a lot of noteworthy people, and that became a concern for our utility managers.”

In the name of privacy and security, the [C]ity of Palo Alto backed legislation sponsored by Byron Sher, the local [S]tate [S]enator. It allowed utilities to keep secret their customers’ “utility usage data” – that is, how much water and power they were using. Other supporters included the California Municipal Utilities Association and the League of California Cities.

At the time, the Public Records Act required agencies that operated utilities to make customers’ bills public upon request. During a 1991 drought, the press exposed California water wasters by relying on data from water utilities. The Los Angeles Times found that the top 100 water users in San Diego gulped down 3,000 gallons or more a day, while the average household used 349 gallons. Atop the list of the biggest users: The San Diego Union-Tribune’s publisher, Helen Copley, who pumped an average of 10,203 gallons a day on her 9.5-acre La Jolla estate, which was tended by 10 full-time gardeners. Dozens of those top water users complained that publicizing their water use would expose them to security concerns or ridicule, the L.A. Times reported.

In lobbying to change the law, proponents of the Sher measure noted that utility bills include ratepayers’ home addresses. They argued that it was dangerous to make that information public, citing the 1989 shooting of actress Rebecca Schaeffer, who was killed by a stalker who got her address from Department of Motor Vehicles records. The Legislature restricted access after that.

State agencies routinely redact personal information in releasing public records to address security concerns. But proponents of the measure also argued that because private utilities like PG&E did not have to release utility usage data, public ones shouldn’t have to either.

Last year, the nonprofit First Amendment Coalition sued to get water usage data for major business customers of the Coachella Valley Water District in the Palm Springs area, where golf courses are prodigious water users. Peter Scheer, the coalition’s executive director, argued that the 1997 law was intended to protect the privacy only of people, not corporations. Earlier this month, a judge ruled that corporate water bills also should remain secret, saying that while businesses don’t have the same privacy rights as people, the law nevertheless applies to all customers.

Under present law, there are a few exceptions that allow for some limited public scrutiny of water bills. Last year, The Center for Investigative Reporting used the public-official exemption to reveal the water use of officials who weren’t living up to their own calls for conservation. Many water agencies redacted the home addresses of the officials but provided copies of their bills. The law also allows the agencies to disclose customers’ water use if they have violated “utility usage policies.” As water agencies restrict use in response to Gov. Jerry Brown’s recently announced mandatory water cuts, scofflaws could find themselves in the public eye. But only if the agencies feel like sharing that information. (K. Mieszkowski, L. Williams, To Shield Tech Executives, California’s Biggest Water Users are Secret (Apr. 16, 2015) <https://www.revealnews.org/article/californias-biggest-water-users-are-secret-to-shield-tech-executives/> [as of June 28, 2015].)

A Sacramento Bee article also noted that “[s]ome cities and water agencies used to make usage data public, including the Desert Water Agency and Coachella Valley Water District in Southern California, which have some of the state’s highest per-capita water use. But after The Desert Sun newspaper in March 2014 published who was pumping the most groundwater, both agencies stopped. The First Amendment Coalition sued the agencies to obtain usage data for major businesses. Desert Water settled and agreed to make the numbers available; they show that golf resorts and country clubs are among the biggest users. Coachella Valley, however, refused – and won in court last month.” (Editorial Board, California Water Use Numbers Should Flow Freely (Apr. 28, 2015) The Sacramento Bee <http://www.sacbee.com/opinion/editorials/article19426455.html> [as of June 28, 2015].)

This bill seeks to expand disclosure by clarifying that the confidentiality provisions under the CPRA for utility customers pertain to residential customers of a local agency.

CHANGES TO EXISTING LAW

Existing law, the California Constitution, declares the people’s right to transparency in government. (“The people have the right of access to information concerning the conduct of the people’s business, and therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny....”) (Cal. Const., art. I, Sec. 3.)

Existing law provides individuals an express right to privacy specifically designed to “prevent government ... from collecting and stockpiling unnecessary information about us and misusing information gathered for one purpose in order to serve another purpose.” (Cal. Const., art. I., Sec. 1; White v. Davis (1975) 13 Cal.3d 757, 774.)

Existing law, the California Public Records Act (CPRA), governs the public disclosure of information collected and maintained by public agencies. (Gov. Code Sec. 6250 et seq.) Generally, all public records are accessible to the public upon request, unless the record requested is exempt from public disclosure. (Gov. Code Sec. 6254.) There are 30 general categories of documents or information that are exempt from disclosure, essentially due to the character of the information, and unless it is shown that the public’s interest in disclosure outweighs the public’s interest in non-disclosure of the information, the exempt information may be withheld by the public agency with custody of the information. (Gov. Code Sec. 6254 et seq.)

Existing law defines state agency, for purposes of the CPRA, to include every state office, department, division, bureau, board, and commission or other state body or agency, except for the Legislature and the Judiciary. (Gov. Code Sec. 6252.)

Existing law exempts from public disclosure records that are the residence address of any person contained in the Department of Housing and Community Development, if the person has requested confidentiality of that information, as specified, and the residence or mailing address of any person in any record of the Department of Motor Vehicles. (Gov. Code Sec. 6254.1.)

Existing law exempts from public disclosure the name, credit history, utility usage data, home address, and telephone number of utility customers of local agencies, except that disclosure of name, utility usage data, and the home address of utility customers of local agencies shall be made available upon request as follows:

• to an agent or authorized family member of the person to whom the information pertains;

• to an officer or employee of another governmental agency when necessary for the performance of its official duties;

• upon court order or the request of a law enforcement agency relative to an ongoing investigation;

• upon determination by the local agency that the utility customer who is the subject of the request has used utility services in a manner inconsistent with applicable local utility usage policies;

• upon determination by the local agency that the utility customer who is the subject of the request is an elected or appointed official with authority to determine the utility usage policies of the local agency, provided that the home address of an appointed official shall not be disclosed without his or her consent; and

• upon determination by the local agency that the public interest in disclosure of the information clearly outweighs the public interest in nondisclosure. (Gov. Code Sec. 6254.16.)

Existing law exempts from public disclosure corporate financial records and corporate proprietary information, including trade secrets (Gov. Code Secs. 6254, 6254(k), 6254.15, 6276.44), employee personal information (Gov. Code Secs. 6254(c), 6254.3, 6276.34, 6276.36), and information affecting public safety or security (Gov. Code Secs. 6253.9, 6254(aa), (ab), 6254.19, 6254.23).

Existing law provides that information held by the CPUC, which is deemed confidential under Public Utilities Code Section 583, is not required to be disclosed. (Gov. Code Secs. 6276, 6276.36.)

Existing law provides that no information, unless specifically required, furnished to the CPUC by a public utility, business that is a subsidiary or affiliate of a public utility, or corporation that holds a controlling interest in a public utility, shall be publicly available unless ordered to be public by the CPUC in the course of a hearing or proceeding. (Pub. Util. Code Sec. 583.) Any present or former employee of the CPUC who divulges any confidential public utility information provided to the CPUC is guilty of a misdemeanor. (Id.)

Existing law provides that any person may institute proceedings for injunctive or declarative relief or writ of mandate in any court of competent jurisdiction to enforce his or her right to inspect or to receive a copy of any public record or class of public records, and authorizes an award of court costs and reasonable attorney fees to the plaintiff should the plaintiff prevail in litigation, and those costs and fees are required to be paid by the public agency, as specified (Gov. Code Secs. 6258, 6259(d)). The test for determining whether a record may be withheld from public access is whether the public’s interest in disclosure is outweighed by the public’s interest in withholding disclosure of the record. (Gov. Code Sec. 6255.)

This bill would clarify that the public disclosure exemption for the name, credit history, utility usage data, home address, and telephone number of utility customers of local agencies applies to residential customers.

This bill would provide legislative findings and declarations that this bill furthers the purposes of the California Constitution as it relates to the right of public access to the meetings of local public bodies or the writings of local public officials and local agencies, it is in the public’s interest to know the usage rates of industrial, institutional, and commercial water and energy users, and, unlike residential utility users, the privacy interests of industrial, institutional, and commercial users are not sufficient to justify granting an exemption from the public disclosure requirements, in this context.

This bill would also make other technical and conforming changes.

COMMENT

1. Stated need for the bill

The author writes:

The four year drought in California has, among other things, led to calls for water conservation reductions, especially for urban users. Efforts by newspapers and others to determine the largest water users within a district or city, in order to determine whether they were meeting conservation goals, have been stymied by Government Code Section 6254.16.

However, when Government Code Section 6254.16 was added to the [California Public Records Act (CPRA)] in 1997, it was primarily concerned about the privacy rights of individual, residential users (see below). Commercial, industrial, and institutional users do not have the same privacy concerns. AB 1520 would continue to protect the legitimate privacy interests of residential users while serving the public’s interest in determining whether the largest users are meeting conservation goals. Although the drought is the primary impetus for this bill, it should be noted that this bill would apply to all utilities, not just water.

2. Clarifying confidentiality of utility consumer’s information

Under existing law, a utility consumer’s name, credit history, utility usage data, home address, and telephone number are exempted from public disclosure under the CPRA. (Gov. Code Sec. 6254.16.) This information is required to be disclosed only in the following circumstances:

• to the utility customer’s agent or authorized family member;

• to an officer or employee of another governmental agency when necessary for the performance of its official duties;

• upon court order or the request of a law enforcement agency relative to an ongoing investigation;

• upon determination by the local agency that the utility customer has used utility services in a manner inconsistent with applicable local utility usage policies;

• upon determination by the local agency that the utility customer is an elected or appointed official with authority to determine the utility usage policies of the local agency, provided that the home address of an appointed official is not disclosed without his or her consent; and

• upon determination by the local agency that the public interest in disclosure of the information clearly outweighs the public interest in nondisclosure. (Gov. Code Sec. 6254.16.)

Following below average precipitation since 2007, and record high temperatures and record dry conditions last year, California is in an unprecedented drought in which nearly all of California has been affected. In January of this year, Governor Brown declared a drought State of Emergency and directed state officials to take all necessary actions to prepare for water shortages. (California Drought, <http://ca.gov/drought/> [as of June 28, 2016].) The drought has called into question who is using the most water in California. According to the author, “[n]otwithstanding [Government Code] Section 6254.16, until fairly recently some cities and water agencies used to make usage data available. After all, the [California Public Records Act (CPRA)] does not prohibit disclosure; it merely states nothing requires the agency to disclose the information. Agencies may disclose it if they like. However, as the drought has prompted new requests for information, many cities and agencies have stopped disclosing this information and they cite Section 6254.16 as justification. For example, the Desert Water Agency and Coachella Water District stopped providing this data after a local newspaper, in March of 2014, published a list of the top users. After the First Amendment Coalition filed a lawsuit in August of 2014 to obtain usage data for large consumers, the Desert Water Agency settled and made the data available. . . . However, the Coachella Water District refused to settle and eventually won in court, based on the exemption provided in Government Code Section 9254.16.” [Emphasis in original.]

Recent allegations have been made that the legislation enacting the current CPRA exemption for utility customer usage data claimed to be about protecting individual privacy in the wake of several tragedies involving the use of personal information disclosed by public agencies, but in reality, according to several news articles, the exemption was aimed at protecting high-profile Californians using significant amounts of water during the California drought in the early 1990s. Now, public water districts are using the exemption to deny public access to water usage of companies, such as golf courses, in order to determine which entities are the biggest water wasters.

The First Amendment Coalition, in support, argues that “[t]he public is entitled to know – indeed, the public has a need to know – water usage data of commercial and other institutional users. Access to this information is the only way for the public to assess the effectiveness of government water conservation policies. The severe [drought] afflicting California only underscores the importance of this access.” Further, the California Newspapers Association, Inc., in support, asserts that this bill “would provide the public with a better understanding of whether the policies of local agencies are effective in achieving state mandated cut-backs and whether enforcement is selective or is fairly applied.”

This bill would clarify that the CPRA exemption for utility customer information, including the usage, home address, and telephone number of the customer, only applies to residential customers. In this way, this CPRA exemption would no longer apply to commercial utility customers.

3. Oppositions’ concerns

The opposition, a coalition of business groups, asserts that this bill “inappropriately makes industrial, institutional, and commercial water and energy use public information. It is an attempt to shame business under the guise of ensuring that large users are meeting conservation goals.” Further, the opposition argues that current utility usage information privacy protections serve an important purpose and protect commercial users from their competitors gaining information and knowledge regarding energy and water usage, which could be used by competitors to determine production capacity and other production information. The opposition argues that this usage information serves no public purpose other than to exploit business operations and to shame businesses who may be considered unfavorable to some and provide an avenue for protest. On this point in particular, the California Manufacturers & Technology Association states that “[t]his bill seeks to take advantage of the current and significant drought that plagues California to eliminate a privacy right of [commercial, industrial, and institutional (CII)] utility customers they currently rely on to help protect information regarding their processes from becoming public and available to competitors who may be able to use utility data to gain confidential information [which undermines] the privacy interests of California manufacturers who are subject to competition from out-of-state manufacturers who will not be subject to similar data disclosures. California manufacturers are particularly sensitive to the release of CII utility data in light of the current drought as some may seek to use this information to publicly shame a company . . . [which, as] evidenced by recent media reports, we already see this taking place across California without context, forcing companies to expend valuable resources to repair their reputation unjustly disparaged by those seeking to push water conservation burdens onto others.”

The opposition further asserts that “current law also levels the playing field between customers of private investor owned utilities and utility customers of local agencies. In 1997, SB 448 (Sher) determined that utility usage information from local agencies was not public information. Yet, this bill is deliberately trying to overturn that, picking and choosing which information should remain private. Most large commercial, industrial, and institutional users of water and energy pay based on volume they use. Under existing regulations, local water districts, for example, are able to determine if conservation goals have been met. If the conservation goal is not met, the local agency can impose fines of up to $10,000 per violation, and $500 per day thereafter for every day the violation continues to enforce compliance.” The opposition states that it is also unclear how this bill, by making commercial utility usage information public, would help reduce water usage or energy consumption.

The California Municipal Utilities Association, in opposition, states that “[u]nder existing law, private utilities are not required to share their utility customer information upon public request. Under SB 448 (Sher, Chp. 276, Statutes 1997), public safety concerns and the issue of ‘parity’ between privacy rights that apply only to private utility customers versus no such protections for utility customers of a public agency prompted the Legislature to ensure privacy protections are equal for all utility customers. The current law provides essential limited protections on the public’s right to access individual customer information, striking a balance between the right to public information and the right for both residential and commercial customer’s usage information to be withheld. In lieu of the six exceptions [under the CPRA], it is unclear why ‘names, credit histories, usage data, home addresses, or telephone numbers’ should only apply to residential customers when such protections benefit all customers.”

The Sacramento Municipal Utility District, in opposition, notes that “investor-owned utilities are not subject to the [CPRA]. Consequently, investor[-]owned utilities (70 [percent] of the State) are able to protect the confidentiality of proprietary business and customer information. This law would effectively mean that commercial or industrial customers in our service territory have less of a privacy interest in their commercial data than their competitors located in the service territory of an investor[-]owned utility.”

In response, the author states that the coalition’s argument that the usage data would be improperly used by competitors is essentially a trade secret argument, for which there is already an exemption from disclosure under the CPRA. With respect to the coalition’s arguments, the author also writes: “They claim that this would create an ‘uneven playing field’ because investor-owned utilities (IOU) like PG&E are not ‘exempted’ from [C]PRA request. . . . Actually, IOUs are not ‘exempted’ from the [C]PRA; as a private enterprise they are not covered by [C]PRA at all, so there is no need for an exemption. [C]PRA only covers government entities. Also, IOUs are regulated by the PUC, and PUC records are subject to [C]PRA.”

As for the coalition’s assertion that this bill would be an effort to shame businesses, the author states that “[t]his is partly true. But it is also a way for people, the press, and policy-makers to get a handle on who the major users are, so as to encourage and/or make policies accordingly.” Regarding the coalition’s claim that the public has no interest in usage data because the local agency can impose fines on users who violate existing limits, the author asserts that “[i]t’s true that the local agency can impose a fine on a violator. In fact, if the agency has determined that a user has violated a policy, subdivision (d) of [Government Code] Section 6254.16 says that the information is not exempt and should be disclosed. But whether or not an agency has taken an action against a user, the public still has a legitimate interest in usage data. After all, the public may want to ensure that the agency is appropriately taking against violators or failing to do so.”

The author also states that “rebuttals to all of the above include[:] (1) before 1997 this information was not exempted and there is no evidence of any harm that resulted from it; (2) even after 1997, some water districts and other agencies voluntarily disclosed this information ([C]PRA exemptions, after all, say that ‘nothing requires’ disclosures of these items, but an agency may still disclose and many did until recently); (3) the legislative history for this section shows that it was concerned with privacy of individuals. But for commercial enterprises, there is no comparable privacy or confidentiality interest – except perhaps trade secrets, which are already exempted.”

Support: California Newspaper Publishers Association; Californians Aware; California Coastal Protection Network; California League of Conservation Voters; Clean Water Action; Community Water Center; Environmental Justice Coalition for Water; Environmental Working Group; First Amendment Coalition; Natural Resources Defense Council; Sierra Club California; TreePeople

Opposition: African American Farmers of California; Agricultural Council of California; American Pistachio Growers; American Planning Association; Association of California Egg Farmers; Automotive Specialty Products Alliance; Building Owners and Managers Association of California; California Association of Nurseries and Garden Centers; California Business Properties Association; California Chamber of Commerce; California Citrus Mutual; California Construction and Industrial Materials Association; California Cotton Ginners Association; California Cotton Growers Association; California Farm Bureau Federation; California Fresh Fruit Association; California Grain and Feed Association; California League of Food Processors; California Manufacturers and Technology Association; California Municipal Utilities Association; California Paint Council; California Restaurant Association; California Seed Association; California Tomato Growers Association; California Warehouse Association; Consumer Specialty Products Association; Grocery Manufacturers of America; Independent Energy Producers; International Council of Shopping Centers; NAIOP – Commercial Real Estate Development Association; National Federation of Independent Business; National Hmong American Farmers; Nisei Farmers League; Pacific Coast Rendering Association; Sacramento Municipal Utility District; Western Plant Health Association; Wine Institute

HISTORY

Source: Author

Related Pending Legislation: SB 20 (Pavley, 2015) would repeal existing law makes confidential reports of completion of water wells, and, instead, require the Department of Water Resources to make the reports available to the public. SB 20 is currently in the Assembly Water, Parks and Wildlife Committee.

Prior Legislation:

SB 448 (Sher, Chapter 276, Statutes of 1997) See Background.

AB 1779 (Roos, Chapter 1213, Statutes of 1989) See Background.

Prior Vote: Prior votes not relevant

**************

ASSEMBLY THIRD READING

ATR Bill Id:AB 1520

Author:(Committee on Judiciary)

As Introduced Ver:March 10, 2015

Majority vote

SUMMARY: Clarifies the Ralph Civil Rights Act. Specifically, this bill finds and declares that Civil Code Section 51.7 was enacted as part of the Ralph Civil Rights Act of 1976, in Chapter 1293 of the Statutes of 1976 (Ralph Act).

EXISTING LAW:

1. Provides pursuant to the Ralph Act that all persons within the jurisdiction of this state have the right to be free from any violence, or intimidation by threat of violence, on account of their sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation.

2. Provides pursuant to the Unruh Civil Rights Act (Unruh Act) that all persons within the jurisdiction of this state are free and equal, and regardless of sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.

FISCAL EFFECT: None

COMMENTS: In support of the bill the author notes that California's primary civil rights statutes include the Unruh Act and the Ralph Act. These laws deal with related but distinct issues and have overlapping but unique application to various kinds of disputes. Because they are codified next to each other – Sections 51 and 51.7 of the Civil Code – litigants and courts have frequently confused them, most frequently believing mistakenly that the Ralph Act is part of the Unruh Act. This confusion is natural because Civil Code Section 51 begins by declaring that it is the Unruh Act. By contrast, there is no similar identification at the beginning of the Ralph Act (at Section 51.7). Therefore, a reader may fail to note that one act has concluded and another has begun. This bill would simply identify the Ralph Act by name in order to prevent further confusion of the courts, litigants, and the public, consistent with the advice of a recent appeals court decision.

This Bill Would Address Confusion that an Appeals Court has Noted Among Courts and Parties. In Stamps v. Superior Court (2006) 136 Cal. App. 4th 1441, the Second District Court of Appeal has observed that misunderstandings of the Unruh and Ralph Acts have been common among courts and parties. Because the court so clearly stated the issue and provided examples, the relevant portion of the opinion is reproduced below:

The parties vigorously debate whether the sections under consideration are or are not part of the [Unruh] Act. Before we reach our destination, we gently observe a point that is beyond controversy: The courts generally have done a poor job of describing the various components of the Act. Not until 2002 did an appellate court tackle the issue head on. In Gatto, supra, 98 Cal.App.4th 744, the court was confronted with determining the statute of limitations for actions under sections 51 and 51.7. The case had nothing to do with employment discrimination; rather, a Hell's Angel was ejected from a county fair for not removing his motorcycle club vest. The court refused to assume that the statutes of limitations for the two sections were necessarily the same. Instead, it initially reflected on the lack of precision in describing the components of the Act.

By its own terms, the Unruh Civil Rights Act comprises only section 51. Subdivision (a) of section 51 states: "This section shall be known, and may be cited, as the Unruh Civil Rights Act." The courts, however, have consistently described as Unruh Civil Rights Act claims causes of action based under seemingly related provisions set forth in sections of the Civil Code that follow section 51. West Shield is a good example. That case presented no claim of denial of full and equal accommodations in violation of section 51; however, the court treated causes of action alleging interference with the exercise of constitutional rights under section 52.1, and sexual harassment under section 51.9 as Unruh Civil Rights Act claims. Similarly, section 51.9 was treated as an ‘Unruh Civil Rights Act claim’ in Brown v. Smith (1997) 55 Cal.App.4th 767, 774–775 as was section 54.1 in Independent Housing Services (1993) 840 F. Supp. 1328. Citing several state and federal opinions, the court in Doe v. Petaluma City School Dist. (N.D.Cal. 1993) 830 F. Supp. 1560 stated that ‘[i]t appears that section 52.1 is at least a “component” of the Unruh Civil Rights Act.’ (Id. at p. 1581.) It is noteworthy, however, that in construing section 52.1, our Supreme Court explained that it was enacted by the Legislature ‘to stem a tide of hate crimes’ (Jones v. Kmart Corp. (1998) 17 Cal.4th 329, 338) and never referred to it as part of the Unruh Civil Rights Act which, at least originally, dealt only with the issue of equal accommodations. Other courts have referred to section 52.1 and related statutes, including section 51.7, as part of the Bane Act. (See, e.g., Bay Area Rapid Transit Dist. v. Superior Court (1995) 38 Cal.App.4th 141, 144; Boccato v. City of Hermosa Beach (1994) 29 Cal.App.4th 1797, 1809.) In re Joshua H. (1993) 13 Cal.App.4th 1734 also refers to section 52.1 as part of the Bane Act but refers to section 51.7 as the ‘Ralph Civil Rights Act.’ (Boccato, at p. 1748, fn. 9.)

Reference to a statute or statutory scheme by the name of its author does not influence the meaning and effect of the enactment, but an erroneous denotation that includes one measure as part of another may obscure differences that are legally very significant. This is what appears to have happened to the Unruh Civil Rights Act, which is increasingly treated as an omnibus antidiscrimination statute no longer limited to merely ensuring equal access to accommodations. For purposes of determining the applicable statute of limitations, this creates a problem, for the provisions now seen as parts of the Unruh Civil Rights Act do not all share the same common law provenance. (Gatto, supra, 98 Cal.App.4th 744, 757–758.)

Although the Gatto court does not unequivocally hold that sections 51.7 and 52.1 are not part of the Act, we are not so reserved: We conclude neither section is part of a properly denominated Act. This conclusion is based largely on the legislative history that we have described ante and is consistent with that reached by two commentators in the civil rights litigation field. Their treatise devotes entire sections to two subjects: "Ralph Act is not part of the Unruh Act or FEHA," and "Bane Act is not part of the Unruh Act, the Ralph Act or another statute." (Kahn & Links, Cal. Civil Practice: Civil Rights Litigation (2005) Section 314, p. 27, [Section] 327, p. 50.)

Analysis Prepared by: Thomas Clark / JUD. / (916) 319-2334 FN: 0000128

Date of Hearing: April 14, 2015

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

ABPCA Bill Id:AB 1520

Author:(Committee on Judiciary) – As Introduced Ver:March 10, 2015

SUBJECT: Civil rights

KEY ISSUE: SHOULD THE RALPH CIVIL RIGHTS ACT BE CLARIFIED TO PREVENT FURTHER CONFUSION AMONG PARTIES AND THE COURTS?

SYNOPSIS

California's primary civil rights statutes include the Unruh Civil Rights Act (prohibiting discrimination in business establishments); the Ralph Civil Rights Act (prohibiting violence or intimidation against another based on protected characteristics; and the Bane Act (prohibiting the use of threats, intimidation, or coercion to prevent another from exercising a constitutional or statutory right). These laws deal with related but distinct issues, and have overlapping but unique application to various kinds of disputes. Because they are codified next to each other – sections 51 and 51.7 of the Civil Code – litigants and courts have frequently confused them, most frequently believing mistakenly that the Ralph Act is part of the Unruh Act. This confusion is natural because section 51 begins by declaring that it is the Unruh Civil Rights Act. By contrast, there is no similar identification of the Ralph Act that begins at section 51.7. Therefore, a reader may fail to note that one act has concluded and another has begun. This bill would simply identify the Ralph Act by name in order to prevent further confusion among litigants, courts, and the public, consistent with the advice of a recent appeals court decision. This non-controversial bill has no opposition. In 2011 an identical measure passed out of this Committee and off the Assembly Floor unanimously but was never heard in the Senate.

SUMMARY: Clarifies the Ralph Civil Rights Act. Specifically, this bill finds and declares that section 51.7 of the Civil Code was enacted as part of the Ralph Civil Rights Act of 1976, in Chapter 1293 of the Statutes of 1976.

EXISTING LAW:

1. Provides pursuant to the Ralph Civil Rights Act of 1976 that all persons within the jurisdiction of this state have the right to be free from any violence, or intimidation by threat of violence, on account of their sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation. (Civil Code section 51.7.)

2. Provides pursuant to the Unruh Civil Rights Act that all persons within the jurisdiction of this state are free and equal, and regardless of sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever. (Civil Code section 51.)

FISCAL EFFECT: As currently in print this bill is keyed non-fiscal.

COMMENTS: In support of the bill the author notes that California's primary civil rights statutes include the Unruh Civil Rights Act and the Ralph Civil Rights Act. These laws deal with related but distinct issues and have overlapping but unique application to various kinds of disputes. Because they are codified next to each other – sections 51 and 51.7 of the Civil Code – litigants and courts have frequently confused them, most frequently believing mistakenly that the Ralph Act is part of the Unruh Act. This confusion is natural because section 51 begins by declaring that it is the Unruh Civil Rights Act. By contrast, there is no similar identification at the beginning of the Ralph Act (at section 51.7). Therefore, a reader may fail to note that one act has concluded and another has begun. This bill would simply identify the Ralph Act by name in order to prevent further confusion of the courts, litigants, and the public, consistent with the advice of a recent appeals court decision.

This Bill Would Address Confusion That An Appeals Court Has Noted Among Courts and Parties: In Stamps v. Superior Court (2006) 136 Cal. App. 4th 1441, the Second District Court of Appeal has observed that misunderstandings of the Unruh and Ralph Acts have been common among courts and parties. Because the court so clearly stated the issue and provided examples, the relevant portion of the opinion is reproduced below:

The parties vigorously debate whether the sections under consideration are or are not part of the [Unruh] Act. Before we reach our destination, we gently observe a point that is beyond controversy: The courts generally have done a poor job of describing the various components of the Act. Not until 2002 did an appellate court tackle the issue head on. In Gatto, supra, 98 Cal.App.4th 744, the court was confronted with determining the statute of limitations for actions under sections 51 and 51.7. The case had nothing to do with employment discrimination; rather, a Hell's Angel was ejected from a county fair for not removing his motorcycle club vest. The court refused to assume that the statutes of limitations for the two sections were necessarily the same. Instead, it initially reflected on the lack of precision in describing the components of the Act.

By its own terms, the Unruh Civil Rights Act comprises only section 51. Subdivision (a) of section 51 states: "This section shall be known, and may be cited, as the Unruh Civil Rights Act." The courts, however, have consistently described as Unruh Civil Rights Act claims causes of action based under seemingly related provisions set forth in sections of the Civil Code that follow section 51. West Shield is a good example. That case presented no claim of denial of full and equal accommodations in violation of section 51; however, the court treated causes of action alleging interference with the exercise of constitutional rights under section 52.1, and sexual harassment under section 51.9 as Unruh Civil Rights Act claims. Similarly, section 51.9 was treated as an ‘Unruh Civil Rights Act claim’ in Brown v. Smith (1997) 55 Cal.App.4th 767, 774–775 as was section 54.1 in Independent Housing Services (1993) 840 F. Supp. 1328. Citing several state and federal opinions, the court in Doe v. Petaluma City School Dist. (N.D.Cal. 1993) 830 F. Supp. 1560 stated that ‘[i]t appears that section 52.1 is at least a “component” of the Unruh Civil Rights Act.’ (Id. at p. 1581.) It is noteworthy, however, that in construing section 52.1, our Supreme Court explained that it was enacted by the Legislature ‘to stem a tide of hate crimes’ (Jones v. Kmart Corp. (1998) 17 Cal.4th 329, 338) and never referred to it as part of the Unruh Civil Rights Act which, at least originally, dealt only with the issue of equal accommodations. Other courts have referred to section 52.1 and related statutes, including section 51.7, as part of the Bane Act. (See, e.g., Bay Area Rapid Transit Dist. v. Superior Court (1995) 38 Cal.App.4th 141, 144; Boccato v. City of Hermosa Beach (1994) 29 Cal.App.4th 1797, 1809.) In re Joshua H. (1993) 13 Cal.App.4th 1734 also refers to section 52.1 as part of the Bane Act but refers to section 51.7 as the ‘Ralph Civil Rights Act.’ (Boccato, at p. 1748, fn. 9.)

Reference to a statute or statutory scheme by the name of its author does not influence the meaning and effect of the enactment, but an erroneous denotation that includes one measure as part of another may obscure differences that are legally very significant. This is what appears to have happened to the Unruh Civil Rights Act, which is increasingly treated as an omnibus antidiscrimination statute no longer limited to merely ensuring equal access to accommodations. For purposes of determining the applicable statute of limitations, this creates a problem, for the provisions now seen as parts of the Unruh Civil Rights Act do not all share the same common law provenance.” (Gatto, supra, 98 Cal.App.4th 744, 757–758.)

Although the Gatto court does not unequivocally hold that sections 51.7 and 52.1 are not part of the Act, we are not so reserved: We conclude neither section is part of a properly denominated Act. This conclusion is based largely on the legislative history that we have described ante and is consistent with that reached by two commentators in the civil rights litigation field. Their treatise devotes entire sections to two subjects: “Ralph Act is not part of the Unruh Act or FEHA,” and “Bane Act is not part of the Unruh Act, the Ralph Act or another statute.” (Kahn & Links, Cal. Civil Practice: Civil Rights Litigation (2005) § 314, p. 27, § 327, p. 50.)

REGISTERED SUPPORT / OPPOSITION:

Support

None on file

Opposition

None on file

Analysis Prepared by: Thomas Clark / JUD. / (916) 319-2334