The California Public Records Act requires state and local agencies to make their records available for public inspection, except as specified. Existing law requires each agency, within 10 days of a request for a copy of records, to determine whether the request seeks copies of disclosable public records in possession of the agency and to promptly notify the person of the determination and the reasons therefor. Existing law authorizes that time limit to be extended by no more than 14 days under unusual circumstances, and defines unusual circumstances to include certain circumstances.

This bill would revise the unusual circumstances under which the time limit may be extended to include the need to search for, collect, and appropriately examine records during a state of emergency, as defined, proclaimed by the Governor in the jurisdiction where the agency is located when the state of emergency currently affects, due to the state of emergency, the agencys ability to timely respond to requests due to staffing shortages or closure of facilities where the requested records are located, except as specified.

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.

Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.

This bill would make legislative findings to that effect.

The California Public Records Act requires state and local agencies to make their records available for public inspection, except as specified. Existing law requires each agency, within 10 days of a request for a copy of records, to determine whether the request seeks copies of disclosable public records in possession of the agency and to promptly notify the person of the determination and the reasons therefor. Existing law authorizes that time limit to be extended by no more than 14 days under unusual circumstances, and defines unusual circumstances to include certain circumstances.

This bill would revise the unusual circumstances under which the time limit may be extended to include the need to search for, collect, and appropriately examine records during a state of emergency, as defined, proclaimed by the Governor in the jurisdiction where the agency is located when the state of emergency currently affects, due to the state of emergency, the agencys ability to timely respond to requests due to staffing shortages or closure of facilities where the requested records are located, except as specified.

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.

Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.

This bill would make legislative findings to that effect.

The California Public Records Act requires state and local agencies to make their records available for public inspection, except as specified. Existing law requires each agency, within 10 days of a request for a copy of records, to determine whether the request seeks copies of disclosable public records in possession of the agency and to promptly notify the person of the determination and the reasons therefor. Existing law authorizes that time limit to be extended by no more than 14 days under unusual circumstances, and defines unusual circumstances to include certain circumstances.

This bill would revise the unusual circumstances under which the time limit may be extended to include the need to search for, collect, and appropriately examine, and copy examine records during a state of emergency, as defined, proclaimed by the Governor in the jurisdiction where the agency is located when the state of emergency has affected currently affects, due to the state of emergency, the agencys ability to timely respond to requests due to decreased staffing shortages or closure of the agencys facilities, facilities where the requested records are located, except as specified.

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.

Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.

This bill would make legislative findings to that effect.

The California Public Records Act requires state and local agencies to make their records available for public inspection, except as specified. Existing law requires each agency, within 10 days of a request for a copy of records, to determine whether the request seeks copies of disclosable public records in possession of the agency and to promptly notify the person of the determination and the reasons therefor. Existing law authorizes that time limit to be extended by no more than 14 days under unusual circumstances, and defines unusual circumstances to include certain circumstances.

This bill would revise the unusual circumstances under which the time limit may be extended to include the need to search for, collect, appropriately examine, and copy records during a state of emergency emergency, as defined, proclaimed by the Governor when the state of emergency has affected the agencys ability to timely respond to requests due to decreased staffing or closure of the agencys facilities. facilities, except as specified.

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.

Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.

This bill would make legislative findings to that effect.

The California Public Records Act requires state and local agencies to make their records available for public inspection, except as specified. Existing law requires each agency, within 10 days of a request for a copy of records, to determine whether the request seeks copies of disclosable public records in possession of the agency and to promptly notify the person of the determination and the reasons therefor. Existing law authorizes that time limit to be extended by no more than 14 days under unusual circumstances, and defines unusual circumstances to include certain circumstances.

This bill would revise the unusual circumstances under which the time limit may be extended to include the need to search for, collect, appropriately examine, and copy records during a state of emergency proclaimed by the Governor when the state of emergency has affected the agencys ability to timely respond to requests due to decreased staffing or closure of the agencys facilities.

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.

Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.

This bill would make legislative findings to that effect.

 UNFINISHED BUSINESS  

Bill No: SB 1034

Author: Seyarto (R), et al.

Amended: 6/5/24

Vote: 21

SENATE JUDICIARY COMMITTEE: 11-0, 4/2/24

AYES: Umberg, Wilk, Allen, Ashby, Caballero, Durazo, Laird, Min, Niello, Stern, Wahab

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

SENATE FLOOR: 36-0, 4/25/24 (Consent)

AYES: Alvarado-Gil, Archuleta, Ashby, Atkins, Becker, Blakespear, Bradford, Caballero, Cortese, Dodd, Durazo, Glazer, Gonzalez, Grove, Hurtado, Jones, Laird, Limón, McGuire, Menjivar, Min, Newman, Nguyen, Niello, Padilla, Portantino, Roth, Rubio, Seyarto, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener, Wilk

NO VOTE RECORDED: Allen, Dahle, Eggman, Ochoa Bogh

ASSEMBLY FLOOR: 75-0, 6/26/24 (Consent) - See last page for vote

SUBJECT: California Public Records Act: state of emergency

SOURCE: City of Chino Hills

DIGEST:

1. This bill adds an additional unusual circumstance under which the initial response time to a public records request may be extended to include the need to search for, collect, and appropriately examine records during a state of emergency proclaimed by the Governor in the jurisdiction where the agency is located when the state of emergency currently affects, due to the state of emergency, the agency’s ability to timely respond to requests due to staffing shortages or closure of facilities where the request records are located, and specifies that this provision only applies to records not created during and applying to the state of emergency.

Assembly Amendments

clarify that the state of emergency has to be in the jurisdiction where the agency is located and when the emergency currently affects the agency’s ability to timely respond to staffing shortages or closure of the facilities where the request records are located.

ANALYSIS:

Existing law:

1. Provides, pursuant to the California Constitution, that 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 are required to be open to public scrutiny. (Cal. const. art. I, § 3(b)(1))
   1. Requires a statute to be broadly construed if it furthers the people’s right of access, and narrowly construed if it limits the right of access. (Cal. const. art. I, § 3(b)(1))
   2. Requires a statute that limits the public’s right of access to be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest. (Cal. const. art. I, § 3(b)(1))
2. Governs the disclosure of information collected and maintained by public agencies pursuant to the California Public Records Act (CPRA). (Gov. Code §§ 7920.000 et seq.)
   1. States that, the Legislature, mindful of the right of individuals to privacy, finds and declares that access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state. (Government (Gov.) Code § 7921.000)
   2. Defines “public records” as any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics. (Gov. Code § 7920.530)
   3. Defines “public agency” as any state or local agency. (Gov. Code § 7920.525(a))
3. Provides that all public records are accessible to the public upon request, unless the record requested is exempt from public disclosure. (Gov. Code § 7922.525)
   1. Some records are prohibited from being disclosed and other records are permissively exempted from being disclosed. (See e.g. Gov. Code §§ 7920.505 & 7922.200)
   2. There are several general categories of documents or information that are permissively exempt from disclosure under the CPRA essentially due to the character of the information. The exempt information can be withheld by the public agency with custody of the information, but it also may be disclosed if it is shown that the public’s interest in disclosure outweighs the public’s interest in non-disclosure of the information. (CBS, Inc. v. Block (1986) 42 Cal.3d 646, at 652) ^[1]
4. Requires each public agency, upon a request for a copy of public records, to determine, within 10 days from receipt of the request, whether the request seeks copies of disclosable public records in the possession of that agency and requires the agency to promptly notify the person making the request of the determination and the reasons therefor. (Gov. Code § 7922.535(a))
   1. If the agency determines that the request seeks public records that are disclosable to the public, the agency must also state the estimated date and time when the records will be made available to the requester. (Ibid.)

This bill:

1. Adds an additional unusual circumstance under which the initial response time to a public records request may be extended to include the need to search for, collect, and appropriately examine records during a state of emergency proclaimed by the Governor in the jurisdiction where the agency is located when the state of emergency currently affects, due to the state of emergency, the agency’s ability to timely respond to requests due to staffing shortages or closure of facilities where the request records are located, and specifies that this provision only applies to records not created during and applying to the state of emergency.
2. Defines “state of emergency” to mean a state of emergency proclaimed pursuant to Section 8625 of the California Emergency Services Act.

Comments

Access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state. (Gov. Cod Section 7921.000.) In 2004, the right of public access was enshrined in the California Constitution with the passage of Proposition 59 (Nov. 3, 2004, statewide general election),^[2] which amended the California Constitution to specifically protect the right of the public to access and obtain government records: “The people have the right of access to information concerning the conduct of the people’s business, and therefore . . . the writings of public officials and agencies shall be open to public scrutiny.” (Cal. Const., art. I, sec. 3 (b)(1)) In 2014, voters approved Proposition 42 (Jun. 3, 2014, statewide direct primary election)^[3] to further increase public access to government records by requiring local agencies to comply with the CPRA and the Ralph M. Brown Act^[4], and with any subsequent statutory enactment amending either act, as provided. (Cal. Const., art. I, sec. 3 (b)(7).)

Under the CPRA, public records are open to inspection by the public at all times during the office hours of the agency, unless exempted from disclosure. (Gov. Cod Section 7922.252) A public record is defined as any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any public agency regardless of physical form or characteristics. (Gov. Code Section 7920.530) The CPRA requires a public agency to make a determination within 10 days of a records request on whether the agency is in possession of the requested records and whether they are disclosable records, either in part or full, including an explanation for the agency’s determination and an estimated date and time the records will be made available. (Gov. Code Section 7922.530(a)) The CPRA allows an agency to extend that response period by 14 days in specified “unusual circumstances.” (Id. at subd. (b).) These “unusual circumstances” are: (1) needing to search for and collect the requested records from facilities that are separate from the office processing the request; (2) needing to search for, collect, and appropriately examine a voluminous amount of separate and distinct records that are demanded in a single request; (3) needing to consult with another agency having substantial interest in the determination of the request or among two or more components of the agency having substantial subject matter interest therein; or (4) needing to compile data, to write programming language or a computer program, or to construct a computer report to extract data. (Id. at subd. (b)(1)-(3))

This bill adds an additional “unusual circumstance” that would allow an agency to extend their initial response time by 14 days to also include the need to search for, collect, and appropriately examine records during a state of emergency proclaimed by the Governor in the jurisdiction where the agency is located when the state of emergency currently affects, due to the state of emergency, the agency’s ability to timely respond to requests due to staffing shortages or closure of facilities where the request records are located. The author and sponsor of this bill point to the recent COVID-19 pandemic as the reason for this bill. Recognizing that accessing records about a state of emergency during a state of emergency is important and necessary for the public, this bill specifically provides that this new “unusual circumstance” only applies to records that are not related to the state of emergency. This bill defines a “state of emergency” to mean a state of emergency proclaimed pursuant to Section 8625 of the California Emergency Services Act.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

SUPPORT: (Verified 6/27/24)

City of Chino Hills (source)

Curt Harman, 4th District Supervisor, San Bernardino County

Association of California Healthcare Districts

Association of California School Administrators

California Association of Joint Powers Authority

California Association of Recreation and Park Districts

California Law Enforcement Association of Records Supervisors

California Special Districts Association

California State Association of Counties

Chino Valley Fire District

City Clerks Association of California

City of Brea

City of Calabasas

City of Chino

City of Chowchilla

City of Downey

City of Eastvale

City of Fortuna

City of Glendora

City of Grand Terrace

City of Lake Elsinore

City of Plymouth

City of Rancho Cucamonga

City of Roseville

City of Torrance

City of Upland

Desert Water Agency

El Dorado Irrigation District

League of California Cities

Los Angeles County Office of Education

Orange County Sanitation District

Public Risk Innovation, Solutions, and Management

Rural County Representatives of California

Solano County Water Agency

Urban Counties of California

OPPOSITION: (Verified 6/27/24)

None received

ARGUMENTS IN SUPPORT: The author writes:

In recent years, the COVID-19 pandemic brought unprecedented circumstances that were not captured under the current definition of “unusual circumstances” for the purposes of the California Public Records Act. Consequently, agencies were obligated to allocate limited time and resources to comply with the normal 10-day determination period in the midst of a statewide public health and safety emergency. SB 1034 provides a reasonable recognition that an “unusual circumstance” includes a state of emergency that causes decreased staffing or closure of agency facilities, thereby allowing agencies a 14-day extension to make determinations on public record requests. This new provision is only applicable to instances in which the requested record is not related to the state of emergency.

The City of Chino Hills writes:

A state of emergency can affect state and local agencies' ability to timely respond to Records Act requests due to decreased staffing or closure of the agency's facilities. Additionally, difficulties can include a combination of resource constraints, logistical hurdles, safety concerns, and the need to prioritize immediate needs. […]

SB 1034 allows agencies to focus on keeping their communities safe during a state of emergency. During a state of emergency agencies may face a surge in demand for their services while simultaneously experiencing resource constraints. These constraints can include shortages in staffing, equipment, and supplies, and immediate safety concerns, making it difficult to promptly respond to public record requests to stay within the compliance period.

ASSEMBLY FLOOR: 75-0, 6/26/24

AYES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Cervantes, Chen, Connolly, Megan Dahle, Davies, Dixon, Essayli, Flora, Mike Fong, Friedman, Gabriel, Gallagher, Garcia, Grayson, Haney, Hart, Holden, Hoover, Irwin, Jackson, Kalra, Lackey, Lee, Low, Lowenthal, Maienschein, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Jim Patterson, Joe Patterson, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Rendon, Reyes, Luz Rivas, Rodriguez, Blanca Rubio, Sanchez, Santiago, Schiavo, Soria, Ta, Ting, Valencia, Villapudua, Waldron, Wallis, Ward, Weber, Wicks, Wilson, Wood, Zbur, Robert Rivas

NO VOTE RECORDED: Gipson, Jones-Sawyer, Mathis, Papan

Prepared by: Amanda Mattson / JUD. / (916) 651-4113

6/27/24 15:38:59

**** END ****

1. CBS, Inc. v. Block (1986) 42 Cal.3d 646, at 652 (stating that “[t]wo exceptions to the general policy of disclosure are set forth in the [CPRA]. Section 6254 lists 19 categories of disclosure-exempt material. These exemptions are permissive, not mandatory. The [CPRA] endows the agency with discretionary authority to override the statutory exceptions when a dominating public interest favors disclosure.”). The exemptions in Section 6254 were continued under the reorganization of the CPRA and may be referred to as former Section 6254 provisions. (Gov. Code § 7920.505.) ↑

2. Prop. 59 was placed on the ballot by a unanimous vote of both houses of the Legislature. (SCA 1 (Burton, Ch. 1, Stats. 2004). ↑

3. Prop. 42 was placed on the ballot by a unanimous vote of both houses of the Legislature. (SCA 3 (Leno, Ch. 123, Stats. 2013). ↑

4. The Ralph M. Brown Act is the open meetings laws that applies to local agencies. (Gov. Code §§ 59450 et. seq.) ↑

Date of Hearing: June 19, 2024

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Buffy Wicks, Chair

SBPCA Bill Id:SB 1034

Author:(Seyarto) – As Amended Ver:June 5, 2024

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill allows an agency to delay its response to a Public Records Act (PRA) request when a state of emergency has been proclaimed by the Governor, if the agency’s ability to respond to the request is currently affected by the state of emergency and the request does not seek records created during and related to the state of emergency.

FISCAL EFFECT:

No significant state costs. The bill allows an agency to, in specified circumstances, defer its response to a PRA request for an additional 14 days, but does not relieve the agency of the obligation to provide a response or otherwise change the responding agency’s workload.

COMMENTS:

1. Purpose. This bill is sponsored by the City of Chino Hills. According to the author:

In recent years, the COVID-19 pandemic brought unprecedented circumstances that were not captured under the current definition of “unusual circumstances” for the purposes of the California Public Records Act. Consequently, agencies were obligated to allocate limited time and resources to comply with the normal 10-day determination period in the midst of a statewide public health and safety emergency. SB 1034 provides a reasonable recognition that an “unusual circumstance” includes a state of emergency that causes decreased staffing or closure of agency facilities, thereby allowing agencies a 14-day extension to make determinations on public record requests. This new provision is only applicable to instances in which the requested record is not related to the state of emergency.

1. Background. A state or local agency that receives a PRA request must provide the requester with a response within 10 days of receiving the request. Under specified “unusual circumstances,” an agency may extend its time for response by an additional 14 days. An agency need not provide the requested records within these timelines, but must provide a response that indicates whether the records requested are in the agency’s possession and, if so, whether the records are disclosable under the PRA. The PRA does not establish a timeline by which requested records must actually be disclosed to a requester. Under existing law, an agency may extend its time for response due to the need to search for and collect requested records from field facilities or other separate establishments; the need to search for, collect, and examine a voluminous amount of records sought in a single request; the need to consult within two components of the agency or with another agency that has a substantial interest in the request; or the need to compile data, write a computer program, or construct a computer report to extract data.

This bill adds to the list of unusual circumstances that may justify a 14-day extension of an agency’s response. It allows an agency to extend its time to respond based on the need to search for, collect, and appropriately examine records during a state of emergency declared by the Governor in the jurisdiction where the agency is located when the state of emergency affects the agency’s ability to timely respond to records requests. However, the bill specifies that this extension does not apply to PRA requests for records created during and related to the applicable state of emergency. In other words, an agency may take the 14-day PRA response extension created by this bill only if the agency’s ability to respond is actually delayed by the state of emergency and the records sought in the request do not pertain to the state of emergency. According to the sponsor of the bill, an agency may receive an increase in demand for its services while also experiencing “shortages in staffing, equipment, and supplies, and immediate safety concerns, making it difficult to promptly respond to public record requests to stay within the compliance period.” The bill attempts to alleviate these pressures by allowing an agency affected by a state of emergency to defer, for an additional 14 days, responses to PRA requests that are unrelated to the emergency burdening the agency.

Analysis Prepared by: Annika Carlson / APPR. / (916) 319-2081

Date of Hearing: June 4, 2024

ASSEMBLY COMMITTEE ON JUDICIARY

Ash Kalra, Chair

SBPCA Bill Id:SB 1034

Author:(Seyarto) – As Amended Ver:April 4, 2024

PROPOSED CONSENT (As Proposed to be Amended)

SENATE VOTE: 36-0

SUBJECT: CALIFORNIA PUBLIC RECORDS ACT: STATE OF EMERGENCY

KEY ISSUE: SHOULD A PROCLAIMED STATE OF EMERGENCY BE CONSIDERED ONE OF THE “UNUSUAL CIRCUMSTANCES” THAT JUSTIFIES A PUBLIC AGENCY’S DELAY IN RESPONDING TO A REQUEST FROM THE PUBLIC FOR COPIES OF RECORDS IN THE AGENCY’S POSSESSION?

SYNOPSIS

Under the California Public Records Act (CPRA), public records are open at all times during the office hours of a public agency for inspection by the public, unless exempted. The CPRA allows a public agency 10 days or, in specified “unusual circumstances,” within 14 days of the 10-day period to respond to a request for the requested public record, and authorizes the agency to charge a fee for its “direct costs of duplication” of the record. The CPRA allows an agency to extend that response period by 14 days in specified “unusual circumstances.” Under current law, these “unusual circumstances” are limited to the following: (1) needing to search for and collect the requested records from facilities that are separate from the office processing the request; (2) needing to search for, collect, and appropriately examine a voluminous amount of separate and distinct records that are demanded in a single request; (3) needing to consult with another agency having substantial interest in the determination of the request or among two or more components of the agency having substantial subject matter interest therein; or (4) needing to compile data, to write programming language or a computer program, or to construct a computer report to extract data.

This bill adds an additional “unusual circumstance” to the law. It would allow an agency to extend their initial response time by 14 days to also include the need to search for, collect, appropriately examine, and copy records during a state of emergency proclaimed by the Governor when the state of emergency has affected the agency’s ability to timely respond to requests due to decreased staffing or closure of the agency’s facilities. While the bill in print now helpfully defines the term “state of emergency,” it arguably is not sufficiently clear about whether and how the state of emergency affects the agency and its ability to respond to the request. The author therefore proposes amendments to ensure that the state of emergency is in the jurisdiction where the agency is located; the state of emergency “currently affects” the agency; and that the state of emergency is the cause of the staffing shortage or closure of a facility where the requested records are located. The amendments are incorporated into the SUMMARY, below, and discussed in the analysis.

Sponsored by the City of Chino Hills, the bill is supported by a large number of public agencies and organizations representing public agencies. It has no opposition on file.

SUMMARY: Allows a public agency, under specified circumstances, to delay its response to a request for copies of public records when a State of Emergency has been proclaimed by the Governor. Specifically, this bill:

1. Adds the following to the list of “unusual circumstances” under which a public agency can extend by written notice the date on which it is required to notify a requester of its a determination whether the agency has disclosable records in its possession and its reasons therefor: The need to search for, collect and appropriately examine records during a state of emergency proclaimed by the Governor in the jurisdiction where the agency is located when the state of emergency currently affects the agency’s ability to timely respond to requests due to staffing shortages or closure of the agency’s facilities where the requested records are located.
2. Clarifies that 1) does not apply to a request for records created during and related to the state of emergency proclaimed by the Governor.
3. Defines, for purposes of 1), “state of emergency” to mean the following: a state of emergency proclaimed pursuant to Section 8625 of the California Emergency Services Act (see 9) - 10) of EXISTING LAW, below).
4. Justifies the limitation that the bill imposes on the public’s right of access to public records as follows: This act balances the right of the public to access public records in a timely manner while affording public agencies adequate opportunity to satisfy information requests during a declared state of emergency.

EXISTING LAW:

1. Provides that the people have the right of access to information concerning the conduct of the people’s business and, therefore, the writings of public officials and agencies shall be open to public scrutiny. Specifies that any law or rule that limits the public right of access shall be adopted with findings demonstrating the interest protected by the limitation. (California Constitution, art. I, Section 3.)
2. Provides that, in enacting the California Public Records Act (CPRA), the Legislature, mindful of the right of individuals to privacy, finds and declares that access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state. (Government Code Section 7921.000. All further statutory references are to this code, unless otherwise indicated.)
3. Defines “public records” to include any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics and those in the custody of, or maintained by, the Governor’s office means any writing prepared on or after January 6, 1975. (Section 7920.530.)
4. Provides that public records are open to inspection at all times during the office hours of a state or local agency and every person has a right to inspect any public record, exempted as otherwise provided; and that any reasonably segregable portion of a record shall be available for inspection by any person requesting the record after deletion of the portions that are exempted by law. (Section 7922.525.)
5. Requires a public agency to determine whether it has disclosable public records in its possession within ten days or, in specified “unusual circumstances,” within 14 days of the ten-day period, of its receipt of a request for public records and to promptly notify the person making the request of the determination and the reasons therefor. (Section 7922.535 (a).)
6. Provides that in unusual circumstances, the time limit in 5) may be extended by written notice from the head of the agency or a designee to the person making the request, setting forth the reasons for the extension and the date on which a determination is expected to be dispatched. No notice shall specify a date that would result in an extension for more than 14 days. (Id., at (b).)
7. Defines, for purposes of 6), “unusual circumstances” to mean the following, but only to the extent reasonably necessary to the proper processing of the particular request:
   1. The need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request.
   2. The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records that are demanded in a single request.
   3. The need for consultation, which shall be conducted with all practicable speed, with another agency having substantial interest in the determination of the request or among two or more components of the agency having substantial subject matter interest therein.
   4. The need to compile data, to write programming language or a computer program, or to construct a computer report to extract data. (Id., at (c).)
8. Requires a public agency to justify withholding any record by demonstrating that the record in question is exempt under express provisions of this division, or that on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record. (Section 7922.000.)
9. Empowers the Governor to proclaim a state of emergency in an area affected or likely to be affected when he finds that the circumstances described in 10), below, exist; and one of the following applies:
   1. He is requested to do so in the case of a city, by the mayor or chief executive, or in the case of a county, by the chairman of the board of supervisors or the county administrative officer.
   2. He finds that local authority is inadequate to cope with the emergency. (Section 8625.)
10. Specifies that there are the following three conditions or degrees of emergency that justify a state of emergency:
11. “State of war emergency” means the condition that exists immediately, with or without a proclamation thereof by the Governor, whenever this state or nation is attacked by an enemy of the United States, or upon receipt by the state of a warning from the federal government indicating that an enemy attack is probable or imminent. (Section 8558 (a).)
12. “State of emergency” means the duly proclaimed existence of conditions of disaster or of extreme peril to the safety of persons and property within the state caused by conditions such as air pollution, fire, flood, storm, epidemic, riot, drought, cyberterrorism, sudden and severe energy shortage, electromagnetic pulse attack, plant or animal infestation or disease, the Governor’s warning of an earthquake or volcanic prediction, or an earthquake, or other conditions, other than conditions resulting from a labor controversy or conditions causing a “state of war emergency,” which, by reason of their magnitude, are or are likely to be beyond the control of the services, personnel, equipment, and facilities of any single county, city and county, or city and require the combined forces of a mutual aid region or regions to combat, or with respect to regulated energy utilities, a sudden and severe energy shortage requires extraordinary measures beyond the authority vested in the Public Utilities Commission. (Id., at (b).)
13. “Local emergency” means the duly proclaimed existence of conditions of disaster or of extreme peril to the safety of persons and property within the territorial limits of a county, city and county, or city, caused by conditions such as air pollution, fire, flood, storm, epidemic, riot, drought, cyberterrorism, sudden and severe energy shortage, deenergization event, electromagnetic pulse attack, plant or animal infestation or disease, the Governor’s warning of an earthquake or volcanic prediction, or an earthquake, or other conditions, other than conditions resulting from a labor controversy, which are or are likely to be beyond the control of the services, personnel, equipment, and facilities of that political subdivision and require the combined forces of other political subdivisions to combat, or with respect to regulated energy utilities, a sudden and severe energy shortage or deenergization event that requires extraordinary measures beyond the authority vested in the Public Utilities Commission. (Id., at (c)(1).)

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

COMMENTS: This bill, sponsored by the City of Chino Hills, allows a public agency, under specified circumstances, to delay its response to a request for copies of public records when a State of Emergency has been proclaimed. Specifically, it adds a declared State of Emergency (as defined by Section 8625 of the California Emergency Services Act) as an “unusual circumstance” that justifies an agency’s delay in responding to a request for public records. Proposed author’s amendments (discussed below) seek to ensure that the State of Emergency “currently affects” the jurisdiction where the agency is located and that any staff shortages and office closures that necessitate a delay are caused by the State of Emergency. According to the author:

In recent years, the COVID-19 pandemic brought unprecedented circumstances that were not captured under the current definition of “unusual circumstances” for the purposes of the California Public Records Act. Consequently, agencies were obligated to allocate limited time and resources to comply with the normal 10-day determination period in the midst of a statewide public health and safety emergency. SB 1034 provides a reasonable recognition that an “unusual circumstance” includes a state of emergency that causes decreased staffing or closure of agency facilities, thereby allowing agencies a 14-day extension to make determinations on public record requests. This new provision is only applicable to instances in which the requested record is not related to the state of emergency.

Public Records and Public Access to Such Records. Access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state. (Section 7921.000.) In 2004, the right of public access was enshrined in the California Constitution with the passage of Proposition 59 (Nov. 3, 2004, statewide general election), placed on the ballot by a unanimous vote of both houses of the Legislature. (SCA 1 (Burton, Ch. 1, Stats. 2004), which amended the California Constitution to specifically protect the right of the public to access and obtain government records: “The people have the right of access to information concerning the conduct of the people’s business, and therefore . . . the writings of public officials and agencies shall be open to public scrutiny.” (Cal. Const., art. I, sec. 3 (b)(1).) In 2014, voters approved Proposition 42 (Jun. 3, 2014, statewide direct primary election), placed on the ballot by a unanimous vote of both houses of the Legislature, (SCA 3 (Leno, Ch. 123, Stats. 2013), to further increase public access to government records by requiring local agencies to comply with the CPRA and the Ralph M. Brown Act, and with any subsequent statutory enactment amending either act, as provided. (Cal. Const., art. I, sec. 3 (b)(7).)

Under the California Public Records Act (CPRA), public records are open to inspection at all times during the office hours of a public agency for inspection by the public, unless exempted. (Section 7922.525.) A public record is defined as any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any public agency regardless of physical form or characteristics. (Section 7920.530.) The CPRA allows a public agency 10 days or, in specified “unusual circumstances,” within 14 days of the 10-day period to respond to a request for the requested public record, and authorizes the agency to charge a fee for its “direct costs of duplication” of the record. (Sections 7922.530 (a), 7922.535.)

The CPRA allows an agency to extend that response period by 14 days in specified “unusual circumstances.” (Section 7922.530 (b).) These “unusual circumstances” are: (1) needing to search for and collect the requested records from facilities that are separate from the office processing the request; (2) needing to search for, collect, and appropriately examine a voluminous amount of separate and distinct records that are demanded in a single request; (3) needing to consult with another agency having substantial interest in the determination of the request or among two or more components of the agency having substantial subject matter interest therein; or (4) needing to compile data, to write programming language or a computer program, or to construct a computer report to extract data. (Id. at subd. (b)(1)-(3).)

This bill adds an additional “unusual circumstance” that would allow an agency to extend their initial response time by 14 days to also include the need to search for, collect, appropriately examine, and copy records during a state of emergency proclaimed by the Governor when the state of emergency has affected the agency’s ability to timely respond to requests due to decreased staffing or closure of the agency’s facilities. The author and sponsor of the bill point to the recent COVID-19 pandemic as the reason for this bill. Recognizing that accessing records about a state of emergency during a state of emergency is important and necessary for the public, the bill specifically provides that this new “unusual circumstance” only applies to records that are not related to the state of emergency.

Author’s amendments. While the bill in print now helpfully defines the term “state of emergency,” it arguably is not sufficiently clear about whether and how the state of emergency affects the agency and its ability to respond to the request. The author therefore proposes amendments to ensure that the state of emergency is in the jurisdiction where the agency is located; the state of emergency “currently affects” the agency; and that the state of emergency is the cause of the staffing shortage or closure of a facility where the requested records are located.

(5) The need to search for, collect, and appropriately examine, and copy and appropriately examine records during a state of emergency proclaimed by the Governor in the jurisdiction where the agency is located when the state of emergency has affected currently affects the agency’s ability to timely respond to requests due to decreased staffing shortages or closure of the agency’s facilities where the requested records are located.

ARGUMENTS IN SUPPORT: The City of Chino Hills, the sponsor of the bill, writes:

A state of emergency can affect state and local agencies' ability to timely respond to Records Act requests due to decreased staffing or closure of the agency's facilities. Additionally, difficulties can include a combination of resource constraints, logistical hurdles, safety concerns, and the need to prioritize immediate needs. […]

SB 1034 allows agencies to focus on keeping their communities safe during a state of emergency. During a state of emergency agencies may face a surge in demand for their services while simultaneously experiencing resource constraints. These constraints can include shortages in staffing, equipment, and supplies, and immediate safety concerns, making it difficult to promptly respond to public record requests to stay within the compliance period.

REGISTERED SUPPORT / OPPOSITION:

Support

City of Chino Hills (sponsor)
Association of California Healthcare Districts (ACHD)
Association of California School Administrators
California Association of Joint Powers Authorities (CAJPA)
California Association of Recreation & Park Districts
California Central Valley Flood Control Association
California Law Enforcement Association of Records Supervisors (CLEARS)
California Special Districts Association
California State Association of Counties
California State Association of Counties (CSAC)
City Clerks Association of California
City of Brea
City of Downey
City of Eastvale
City of Rancho Cucamonga
City of Riverside
City of Roseville
Desert Water Agency
El Dorado Irrigation District
Los Angeles County Office of Education
Orange County Sanitation District
Palmdale Water District
Public Risk Innovation, Solutions, and Management (PRISM)
Puente Basin Water Agency
Rowland Water District
Rural County Representatives of California (RCRC)
Solano County Water Agency
Urban Counties of California (UCC)
Walnut Valley Water District

Opposition

None on file

Analysis Prepared by: Alison Merrilees / JUD. / (916) 319-2334

 CONSENT  

Bill No: SB 1034

Author: Seyarto (R), et al.

Amended: 4/4/24

Vote: 21

SENATE JUDICIARY COMMITTEE: 11-0, 4/2/24

AYES: Umberg, Wilk, Allen, Ashby, Caballero, Durazo, Laird, Min, Niello, Stern, Wahab

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

SUBJECT: California Public Records Act: state of emergency

SOURCE: City of Chino Hills

DIGEST:

This bill adds an additional unusual circumstance under which the initial response time to a public records request may be extended by an agency for an additional 14 days to include the need to search for, collect, appropriately examine, and copy records during a state of emergency proclaimed by the Governor when the state of emergency has affected the agency’s ability to timely respond to requests due to decreased staffing or closure of the agency’s facilities, and specifies that this provision only applies to records not created during and applying to the state of emergency.

ANALYSIS:

Existing law:

1. Provides, pursuant to the California Constitution, that 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 are required to be open to public scrutiny. (Cal. const. art. I, § 3(b)(1).)
   1. Requires a statute to be broadly construed if it furthers the people’s right of access, and narrowly construed if it limits the right of access. (Cal. const. art. I, § 3(b)(1).)
   2. Requires a statute that limits the public’s right of access to be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest. (Cal. const. art. I, § 3(b)(1).)
2. Governs the disclosure of information collected and maintained by public agencies pursuant to the California Public Records Act (CPRA). (Gov. Code §§ 792.000 et seq.)
   1. States that, the Legislature, mindful of the right of individuals to privacy, finds and declares that access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state. (Gov. Code § 7921.000.)
   2. Defines “public records” as any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics. (Gov. Code § 7920.530.)
   3. Defines “public agency” as any state or local agency. (Gov. Code § 7920.525(a).)
3. Provides that all public records are accessible to the public upon request, unless the record requested is exempt from public disclosure. (Gov. Code § 7922.525.)

• 1. Some records are prohibited from being disclosed and other records are permissively exempted from being disclosed. (See e.g. Gov. Code §§ 7920.505 & 7922.200.)
  2. There are several general categories of documents or information that are permissively exempt from disclosure under the CPRA essentially due to the character of the information. The exempt information can be withheld by the public agency with custody of the information, but it also may be disclosed if it is shown that the public’s interest in disclosure outweighs the public’s interest in non-disclosure of the information. (CBS, Inc. v. Block (1986) 42 Cal.3d 646, at 652.). ^[1]

1. Requires each public agency, upon a request for a copy of public records, to determine, within 10 days from receipt of the request, whether the request seeks copies of disclosable public records in the possession of that agency and requires the agency to promptly notify the person making the request of the determination and the reasons therefor. (Gov. Code § 7922.535(a).)
   1. If the agency determines that the request seeks public records that are disclosable to the public, the agency must also state the estimated date and time when the records will be made available to the requester. (Ibid.)

This bill:

1. Adds an additional unusual circumstance under which the initial response time to a public records request may be extended to include the need to search for, collect, appropriately examine, and copy records during a state of emergency proclaimed by the Governor when the state of emergency has affected the agency’s ability to timely respond to requests due to decreased staffing or closure of the agency’s facilities, and specifies that this provision only applies to records not created during and applying to the state of emergency.
2. Defines “state of emergency” to mean a state of emergency proclaimed pursuant to Section 8625 of the California Emergency Services Act.

Comments

Access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state. (Gov. Cod § 7921.000.) In 2004, the right of public access was enshrined in the California Constitution with the passage of Proposition 59 (Nov. 3, 2004, statewide general election),^[2] which amended the California Constitution to specifically protect the right of the public to access and obtain government records: “The people have the right of access to information concerning the conduct of the people’s business, and therefore . . . the writings of public officials and agencies shall be open to public scrutiny.” (Cal. Const., art. I, sec. 3 (b)(1).) In 2014, voters approved Proposition 42 (Jun. 3, 2014, statewide direct primary election)^[3] to further increase public access to government records by requiring local agencies to comply with the CPRA and the Ralph M. Brown Act^[4], and with any subsequent statutory enactment amending either act, as provided. (Cal. Const., art. I, sec. 3 (b)(7).)

Under the CPRA, public records are open to inspection by the public at all times during the office hours of the agency, unless exempted from disclosure. (Gov. Cod § 7922.252.) A public record is defined as any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any public agency regardless of physical form or characteristics. (Gov. Code § 7920.530.) The CPRA requires a public agency to make a determination within 10 days of a records request on whether the agency is in possession of the requested records and whether they are disclosable records, either in part or full, including an explanation for the agency’s determination and an estimated date and time the records will be made available. (Gov. Code § 7922.530(a).) The CPRA allows an agency to extend that response period by 14 days in specified “unusual circumstances.” (Id. at subd. (b).) These “unusual circumstances” are: (1) needing to search for and collect the requested records from facilities that are separate from the office processing the request; (2) needing to search for, collect, and appropriately examine a voluminous amount of separate and distinct records that are demanded in a single request; (3) needing to consult with another agency having substantial interest in the determination of the request or among two or more components of the agency having substantial subject matter interest therein; or (4) needing to compile data, to write programming language or a computer program, or to construct a computer report to extract data. (Id. at subd. (b)(1)-(3).)

This bill adds an additional “unusual circumstance” that would allow an agency to extend their initial response time by 14 days to also include the need to search for, collect, appropriately examine, and copy records during a state of emergency proclaimed by the Governor when the state of emergency has affected the agency’s ability to timely respond to requests due to decreased staffing or closure of the agency’s facilities. The author and sponsor of this bill point to the recent COVID-19 pandemic as the reason for this bill. Recognizing that accessing records about a state of emergency during a state of emergency is important and necessary for the public, this bill specifically provides that this new “unusual circumstance” only applies to records that are not related to the state of emergency. This bill defines a “state of emergency” to mean a state of emergency proclaimed pursuant to Section 8625 of the California Emergency Services Act.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

SUPPORT: (Verified 4/22/24)

City of Chino Hills (source)

Association of California Healthcare Districts

Association of California School Administrators

California Association of Joint Powers Authority

California Association of Recreation and Park Districts

California Law Enforcement Association of Records Supervisors

California Special Districts Association

California State Association of Counties

Chino Valley Fire District

City Clerks Association of California

City of Brea

City of Calabasas

City of Chino

City of Chowchilla

City of Downey

City of Eastvale

City of Fortuna

City of Glendora

City of Grand Terrace

City of Lake Elsinore

City of Plymouth

City of Rancho Cucamonga

City of Roseville

City of Torrance

City of Upland

Curt Harman, 4^th District Supervisor, San Bernardino County

Desert Water Agency

El Dorado Irrigation District

Orange County Sanitation District

Public Risk Innovation, Solutions, and Management

Rural County Representatives of California

Solano County Water Agency

Urban Counties of California

OPPOSITION: (Verified 4/22/24)

None received

ARGUMENTS IN SUPPORT: The author writes:

In recent years, the COVID-19 pandemic brought unprecedented circumstances that were not captured under the current definition of “unusual circumstances” for the purposes of the California Public Records Act. Consequently, agencies were obligated to allocate limited time and resources to comply with the normal 10-day determination period in the midst of a statewide public health and safety emergency. SB 1034 provides a reasonable recognition that an “unusual circumstance” includes a state of emergency that causes decreased staffing or closure of agency facilities, thereby allowing agencies a 14-day extension to make determinations on public record requests. This new provision is only applicable to instances in which the requested record is not related to the state of emergency.

The City of Chino Hills writes:

A state of emergency can affect state and local agencies' ability to timely respond to Records Act requests due to decreased staffing or closure of the agency's facilities. Additionally, difficulties can include a combination of resource constraints, logistical hurdles, safety concerns, and the need to prioritize immediate needs. […]

SB 1034 allows agencies to focus on keeping their communities safe during a state of emergency. During a state of emergency agencies may face a surge in demand for their services while simultaneously experiencing resource constraints. These constraints can include shortages in staffing, equipment, and supplies, and immediate safety concerns, making it difficult to promptly respond to public record requests to stay within the compliance period.

Prepared by: Amanda Mattson / JUD. / (916) 651-4113

4/23/24 10:01:32

**** END ****

1. CBS, Inc. v. Block (1986) 42 Cal.3d 646, at 652 (stating that “[t]wo exceptions to the general policy of disclosure are set forth in the [CPRA]. Section 6254 lists 19 categories of disclosure-exempt material. These exemptions are permissive, not mandatory. The [CPRA] endows the agency with discretionary authority to override the statutory exceptions when a dominating public interest favors disclosure.”). The exemptions in Section 6254 were continued under the reorganization of the CPRA and may be referred to as former Section 6254 provisions. (Gov. Code § 7920.505.) ↑

2. Prop. 59 was placed on the ballot by a unanimous vote of both houses of the Legislature. (SCA 1 (Burton, Ch. 1, Stats. 2004). ↑

3. Prop. 42 was placed on the ballot by a unanimous vote of both houses of the Legislature. (SCA 3 (Leno, Ch. 123, Stats. 2013). ↑

4. The Ralph M. Brown Act is the open meetings laws that applies to local agencies. (Gov. Code §§ 59450 et. seq.) ↑

SENATE JUDICIARY COMMITTEE

Senator Thomas Umberg, Chair

2023-2024 Regular Session

Bill No: SB 1034 (Author:Seyarto)

Version: February 6, 2024

Hearing Date: April 2, 2024

Fiscal: Yes

Urgency: No

Consultant: AM

SUBJECT

California Public Records Act: state of emergency

DIGEST

This bill adds an additional unusual circumstance under which the initial response time to a public records request may be extended by an agency for an additional 14 days to include the need to search for, collect, appropriately examine, and copy records during a state of emergency proclaimed by the Governor when the state of emergency has affected the agency’s ability to timely respond to requests due to decreased staffing or closure of the agency’s facilities, and specifies that this provision only applies to records not created during and applying to the state of emergency.

EXECUTIVE SUMMARY

The California Public Records Act (CPRA) makes all public records of a public agency open to public inspection upon request and grants the public the right to obtain a copy of any public record, unless the records are otherwise exempt from public disclosure. Under the CPRA, a public agency is required to make a determination within 10 days of a records request on whether the agency is in possession of the requested records and whether those records are disclosable. The agency must also provide an estimated date and time the requested records will be made available to the requester. An agency may extend that 10-day response period by an additional 14 days in specified “unusual circumstances.” This bill would add an additional “unusual circumstance” under which the initial response time may be extended to include the need to search for, collect, appropriately examine, and copy records during a state of emergency proclaimed by the Governor when the state of emergency has affected the agency’s ability to timely respond to requests due to decreased staffing or closure of the agency’s facilities. The bill is sponsored by the City of Chino Hills and supported by various cities, public agencies, water districts, and associations representing government entities. No timely opposition was received by the Committee.

PROPOSED CHANGES TO THE LAW

Existing law:

1. Provides, pursuant to the California Constitution, that 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 are required to be open to public scrutiny. (Cal. const. art. I, § 3(b)(1).)
   1. Requires a statute to be broadly construed if it furthers the people’s right of access, and narrowly construed if it limits the right of access. (Cal. const. art. I, § 3(b)(1).)
   2. Requires a statute that limits the public’s right of access to be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest. (Cal. const. art. I, § 3(b)(1).)
2. Governs the disclosure of information collected and maintained by public agencies pursuant to the CPRA. (Gov. Code §§ 792.000 et seq.)
   1. States that, the Legislature, mindful of the right of individuals to privacy, finds and declares that access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state. (Gov. Code § 7921.000.)
   2. Defines “public records” as any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics. (Gov. Code § 7920.530.)
   3. Defines “public agency” as any state or local agency. (Gov. Code § 7920.525(a).)
3. Provides that all public records are accessible to the public upon request, unless the record requested is exempt from public disclosure. (Gov. Code § 7922.525.)
   1. Some records are prohibited from being disclosed and other records are permissively exempted from being disclosed. (See e.g. Gov. Code §§ 7920.505 & 7922.200.)
   2. There are several general categories of documents or information that are permissively exempt from disclosure under the CPRA essentially due to the character of the information. The exempt information can be withheld by the public agency with custody of the information, but it also may be disclosed if it is shown that the public’s interest in disclosure outweighs the public’s interest in non-disclosure of the information. (CBS, Inc. v. Block (1986) 42 Cal.3d 646, at 652.). ^[1]
4. Requires each public agency, upon a request for a copy of public records, to determine, within 10 days from receipt of the request, whether the request seeks copies of disclosable public records in the possession of that agency and requires the agency to promptly notify the person making the request of the determination and the reasons therefor. (Gov. Code § 7922.535(a).)
   1. If the agency determines that the request seeks public records that are disclosable to the public, the agency must also state the estimated date and time when the records will be made available to the requester. (Ibid.)

This bill adds an additional unusual circumstance under which the initial response time to a public records request may be extended to include the need to search for, collect, appropriately examine, and copy records during a state of emergency proclaimed by the Governor when the state of emergency has affected the agency’s ability to timely respond to requests due to decreased staffing or closure of the agency’s facilities, and specifies that this provision only applies to records not created during and applying to the state of emergency.

COMMENTS

1. Stated need for the bill

The author writes:

In recent years, the COVID-19 pandemic brought unprecedented circumstances that were not captured under the current definition of “unusual circumstances” for the purposes of the California Public Records Act. Consequently, agencies were obligated to allocate limited time and resources to comply with the normal 10-day determination period in the midst of a statewide public health and safety emergency. SB 1034 provides a reasonable recognition that an “unusual circumstance” includes a state of emergency that causes decreased staffing or closure of agency facilities, thereby allowing agencies a 14-day extension to make determinations on public record requests. This new provision is only applicable to instances in which the requested record is not related to the state of emergency.

1. Public right of access under the CPRA

Access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state. (Gov. Cod § 7921.000.) In 2004, the right of public access was enshrined in the California Constitution with the passage of Proposition 59 (Nov. 3, 2004, statewide general election),^[2] which amended the California Constitution to specifically protect the right of the public to access and obtain government records: “The people have the right of access to information concerning the conduct of the people’s business, and therefore . . . the writings of public officials and agencies shall be open to public scrutiny.” (Cal. Const., art. I, sec. 3 (b)(1).) In 2014, voters approved Proposition 42 (Jun. 3, 2014, statewide direct primary election)^[3] to further increase public access to government records by requiring local agencies to comply with the CPRA and the Ralph M. Brown Act^[4], and with any subsequent statutory enactment amending either act, as provided. (Cal. Const., art. I, sec. 3 (b)(7).)

Under the CPRA, public records are open to inspection by the public at all times during the office hours of the agency, unless exempted from disclosure. (Gov. Cod § 7922.252.) A public record is defined as any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any public agency regardless of physical form or characteristics. (Gov. Code § 7920.530.) The CPRA requires a public agency to make a determination within 10 days of a records request on whether the agency is in possession of the requested records and whether they are disclosable records, either in part or full, including an explanation for the agency’s determination and an estimated date and time the records will be made available. (Gov. Code § 7922.530(a).) The CPRA allows an agency to extend that response period by 14 days in specified “unusual circumstances.” (Id. at subd. (b).) These “unusual circumstances” are: (1) needing to search for and collect the requested records from facilities that are separate from the office processing the request; (2) needing to search for, collect, and appropriately examine a voluminous amount of separate and distinct records that are demanded in a single request; (3) needing to consult with another agency having substantial interest in the determination of the request or among two or more components of the agency having substantial subject matter interest therein; or (4) needing to compile data, to write programming language or a computer program, or to construct a computer report to extract data. (Id. at subd. (b)(1)-(3).)

This bill adds an additional “unusual circumstance” that would allow an agency to extend their initial response time by 14 days to also include the need to search for, collect, appropriately examine, and copy records during a state of emergency proclaimed by the Governor when the state of emergency has affected the agency’s ability to timely respond to requests due to decreased staffing or closure of the agency’s facilities. The author and sponsor of the bill point to the recent COVID-19 pandemic as the reason for this bill. Recognizing that accessing records about a state of emergency during a state of emergency is important and necessary for the public, the bill specifically provides that this new “unusual circumstance” only applies to records that are not related to the state of emergency.

1. Proposed amendments

The Committee may wish to amend the bill to make it clearer that the new “unusual circumstance” does not apply to records related to the state of emergency. Additionally, the Committee may wish to provide a definition for “state of emergency.” The specific amendments are as follows:

Amendments^[5]

On page 3, in line 13, strike out “The time to respond to a request”, strike out lines 14 to 17, inclusive, and insert:

(A) This paragraph shall not apply to a request for records created during and related to the state of emergency proclaimed by the Governor.

(B) For purposes of this paragraph, “state of emergency” means a state of emergency proclaimed pursuant to Section 8625 of the California Emergency Services Act (Chapter 7 (commencing with Section 8550) of Division 1 of Title 2).

1. Statements in support

The City of Chino Hills, the sponsor of the bill, writes:

A state of emergency can affect state and local agencies' ability to timely respond to Records Act requests due to decreased staffing or closure of the agency's facilities. Additionally, difficulties can include a combination of resource constraints, logistical hurdles, safety concerns, and the need to prioritize immediate needs. […]

SB 1034 allows agencies to focus on keeping their communities safe during a state of emergency. During a state of emergency agencies may face a surge in demand for their services while simultaneously experiencing resource constraints. These constraints can include shortages in staffing, equipment, and supplies, and immediate safety concerns, making it difficult to promptly respond to public record requests to stay within the compliance period.

SUPPORT

City of Chino Hills (sponsor)

Association of California School Administrators

Association of California Healthcare Districts

California Association of Joint Powers Authority

California Association of Recreation and Park Districts

California Law Enforcement Association of Records Supervisors

California State Association of Counties

California Special Districts Association

City Clerks Association of California

City of Brea

City of Calabasas

City of Chino

City of Chowchilla

City of Eastvale

City of Fortuna

City of Glendora

City of Grand Terrace

City of Lake Elsinore

City of Plymouth

City of Rancho Cucamonga

City of Roseville

City of Torrance

City of Upland

Chino Valley Fire District

Desert Water Agency

El Dorado Irrigation District

Curt Harman, 4^th District Supervisor, San Bernardino County

Orange County Sanitation District

Public Risk Innovation, Solutions, and Management

Rural County Representatives of California

Solano County Water Agency

Urban Counties of California

OPPOSITION

None received

RELATED LEGISLATION

Pending Legislation:

AB 1785 (Pacheco, 2024) would prohibit a state or local agency from posting an assessor’s parcel number of an elected or appointed official from being posted on the internet without first obtaining written permission of that individual.

AB 2283 (Pacheco, 2024) would require a public agency that receives a request for the personnel records of one of the public agency’s employees to provide written notice, as prescribed, to the employee within 48 hours of receipt of the request if specified conditions are met. AB 2283 is currently pending in the Assembly Judiciary Committee.

AB 2439 (Quirk-Silva, 2024) would require an owner, developer, or their agents who receives public funds or the equivalent of public funds from a public agency to perform a public works project to be subject to the act in connection with records that it prepares, owns, uses, or retains relating to that public works project, as specified. AB 2439 is currently pending in the Assembly Judiciary Committee.

Prior Legislation:

SB 790 (Padilla, Ch. 77, Stats. 2023) provided that any executed contract for the purchase of goods or services by a state or local agency, including the price and terms of payment, is a public record subject to disclosure under the CPRA, as provided.

AB 469 (Vince Fong, 2023) was substantially similar to AB 343. AB 469 was vetoed by Governor Newsom stating the “bill would create an unnecessary layer of review by an official who would interpret the law in a manner that may or may not be consistent with case law” and that “establishment of this office would result in tens of millions of dollars in cost pressures not considered in the annual budget process.”

AB 343 (Vince Fong, 2022) was substantially similar to this bill. AB 343 was never set for a hearing in the Senate Governmental Organization Committee.

AB 289 (Vince Fong, 2019) was similar to this bill. AB 289 failed passage in this Committee.

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1. CBS, Inc. v. Block (1986) 42 Cal.3d 646, at 652 (stating that “[t]wo exceptions to the general policy of disclosure are set forth in the [CPRA]. Section 6254 lists 19 categories of disclosure-exempt material. These exemptions are permissive, not mandatory. The [CPRA] endows the agency with discretionary authority to override the statutory exceptions when a dominating public interest favors disclosure.”). The exemptions in Section 6254 were continued under the reorganization of the CPRA and may be referred to as former Section 6254 provisions. (Gov. Code § 7920.505.) ↑

2. Prop. 59 was placed on the ballot by a unanimous vote of both houses of the Legislature. (SCA 1 (Burton, Ch. 1, Stats. 2004). ↑

3. Prop. 42 was placed on the ballot by a unanimous vote of both houses of the Legislature. (SCA 3 (Leno, Ch. 123, Stats. 2013). ↑

4. The Ralph M. Brown Act is the open meetings laws that applies to local agencies. (Gov. Code §§ 59450 et. seq.) ↑

5. The amendment may also include technical, nonsubstantive changes recommended by the Office of Legislative Counsel. ↑