For as long as I’ve been a journalist, which is a really long time, public entities have hated public records requests, even while claiming they don’t.
Ask your typical elected or hired official, from the governor to the animal control folks, and they’ll tell you transparency is vital and sunshine in government a key value.
Then turn in the most benign of public records requests — access to a calendar, for example — and prepare for weeks of delays and excuses. Want emails or financial records or, heaven forbid, anything from the police? Months or even years may pass before a single page is delivered, no joke.
That’s why I am deeply concerned about a bill winding its way through the California Legislature that would definitely slow down public records requests and likely make them more difficult and expensive. At its worst, it could push people into costly court battles just for having the audacity to ask for information.
The legislation, Assembly Bill 1821, is authored by Democratic Assemblymember Blanca Pacheco, whose district includes Norwalk, Downey and Bell, where legendary scandals are Example 1 of why public records matter.
Pacheco’s office told me Wednesday that the troubles with the bill are far from what Pacheco set out to do.
“It was never the author’s intention to take away people’s rights to a [Public Records Act] request,” said her chief of staff, Nikki Johnson.
Johnson said the bill was meant to curtail malicious records requests, which do happen, where a citizen goes after copious amounts of records just to be a jerk and cost the government time and money.
It was also meant to address the growing problem of artificial intelligence and other for-profit businesses requesting thousands of records with the intent of using the information to create money-making products — think of sites that already sell publicly available personal information as “background checks.”
I believe Johnson on the good intentions of the bill in addressing those real if nebulous difficulties, but you know what they say about the best-laid plans.
The bill passed through the Assembly recently with ease, largely because most of its problematic portions (I’ll get to those in a minute) were removed — though not all. Even in a watered-down form, which basically gave government more time to answer requests, I found myself in the unlikely position of agreeing with conservative Republican Assemblymember and Trump supporter Carl DeMaio of San Diego, who offered some of the only opposition from elected leaders during the Assembly vote.
“We cannot police the public’s right to know, and we want to err on the side of transparency in how government agencies operate,” DeMaio said.
Amen, brother.
But the Democratic-controlled Assembly erred on the side of secrecy and slowdown instead, and the measure sailed to the Senate, where seemingly out of the blue, a bunch of new provisions were added that fill it with loopholes, vague language and tons of room for abuse.
David Snyder, executive director of the First Amendment Coalition, said the bill as written now was “comprehensively bad for transparency and therefore for government accountability.”
Sean McMorris, transparency, ethics and accountability program manager for the advocacy organization California Common Cause, put it even more forcefully. He pointed out that “public records are the public’s records.”
“They’re not owned by the government,” he said. But this bill would shift that paradigm and make the public “prove why you need them.”
“It’s going to chill people who want to make requests, and it’s going to complicate the process, and it’s just wrong,” McMorris said.
In its new form, the bill basically allows government entities to decide if they feel a public records request is malicious or for commercial gain. If they do, they can petition a court to intervene — potentially sparking both legal costs and new fees associated with fulfilling the request.
It would also, Snyder said, force a requester to explain why they wanted the records — something California law has repeatedly avoided because it gives power to government to treat those it perceives as enemies differently.
In this age of fairness and reason, it’s hard to imagine a government official misusing power to keep secrets, but I’m told it happens. That makes it all the more crucial that people not be forced to explain why they want information, or if they will use it to, say, expose corruption — be it wrongdoing by a single individual or the entire system.
Faced with unintended consequences, Assemblymember Blanca Pacheco (D-Downey), shown in 2023, will seek to scale back the bill to its original form, according to her chief of staff.
(Rich Polk / Getty Images for Equality California)
“I have little doubt that some agencies will use that provision to overburden requesters that they view as political opponents, requesters that they view as just a hassle, requesters that ask for things the government doesn’t want to disclose,” Snyder said. “They can bring the requester into court, and at a minimum, slow down the process, and probably more likely get the requester to simply withdraw.”
As written, the bill also gives a shoddy carve-out meant to protect journalists, but which in reality could be used to curtail requests from freelancers, student journalists and more.
McMorris said access to public records is a “moral issue,” and fixing any problems with the current law requires “a scalpel, not a meat ax.”
This bill, he warned, is a meat ax.
“I don’t discount that there are abusive requests, and that there are requests that really are a burden on government agencies, but the law right now has ways for government agencies to address that,” he pointed out. “Once these laws go into place, they’re going to be hard to roll back.”
It could “fundamentally change” our access to public records, he said.
Johnson, Pacheco’s chief of staff, told me that faced with all these unintended consequences, the Assembly member is going to ask for the amendments to be removed, and for the bill to progress as it was written when it passed the Assembly. That could happen as early as next week, when the bill with the new provisions is scheduled to come up again in a Senate committee for debate.
Reverting to the bill the Assembly voted on would be better, but slowing down public records is in government’s best interests, not the people’s. The bill does nothing to address the problems it seeks to fix, but stretches out the time officials have to simply tell a requester if any records do exist — never mind delivering them.
So even back to its watered-down form, the bill remains a meat ax for a scalpel problem, chopping up transparency with good intentions.
