Bill Text: CA SB1442 | 2011-2012 | Regular Session | Introduced
Bill Title: Legislative Open Records Act.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2012-03-22 - Referred to Com. on RLS. [SB1442 Detail]
Download: California-2011-SB1442-Introduced.html
BILL NUMBER: SB 1442 INTRODUCED
BILL TEXT
INTRODUCED BY Senator Walters
FEBRUARY 24, 2012
An act to amend Sections 9072, 9073, 9074, 9075, 9077, and 9080
of, to add Section 9081 to, and to repeal Section 9079 of, the
Government Code, relating to legislative records.
LEGISLATIVE COUNSEL'S DIGEST
SB 1442, as introduced, Walters. Legislative Open Records Act.
The Legislative Open Records Act (LORA) requires that a
legislative record, as defined, be open to public inspection unless
the record is exempt from disclosure under the act.
This bill would amend LORA to broaden the records subject to
disclosure by making the following changes, among others:
(a) Include as a legislative record a writing that contains
information relating to the conduct of the public's business
prepared, owned, used, retained, or subject to control by a
consultant of the Legislature.
(b) Remove the exemption under LORA that allows the Legislature to
withhold a record if on the facts of the particular case the public
interest served by not making the record public clearly outweighs the
public interest served by disclosure of the record.
(c) Replace the exemption under LORA for preliminary drafts,
notes, and legislative memorandum with an exemption for
intralegislative memoranda containing the author's recommendations or
opinions, if the public interest in withholding the record is
manifestly greater than the public interest in disclosure.
(d) Remove the exemption under LORA for correspondence of and to
individual Members of the Legislature and their staff.
(e) Remove the exemption under LORA for records maintained or in
the custody of the Legislative Counsel.
(f) Remove the exemption under LORA for records maintained or in
the custody of the majority and minority caucuses, and the majority
and minority consultants, of each house of the Legislature.
(g) Replace the exemption under LORA for records of complaints to
or investigations conducted by, or records of security procedures of,
the Legislature with an exemption for records the disclosure of
which reasonably could be expected to pose a substantial security
risk to the Legislature.
The bill would require a record subject to disclosure to be
provided as an electronic file, whenever possible, at the option of
the requester. The bill would require certain information relating to
legislative expenditures and meetings and appointments of Members of
the Legislature to be produced and published by the Legislature on a
monthly basis. The bill would repeal a provision of LORA authorizing
the court to award costs and attorney's fees to the Legislature if a
clearly frivolous suit is brought against the Legislature pursuant
to LORA. The bill would prohibit the Legislature from selling,
exchanging, furnishing, or otherwise providing a legislative record
subject to disclosure to a private entity in a manner that prevents
the Legislature or any state agency from disclosing the record
directly.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 9072 of the Government Code is amended to read:
9072. As used in this article:
(a) "Person" includes any natural person, corporation,
partnership, limited liability company, firm, or association.
(b) "Legislature" includes any Member of the Legislature, any
legislative officer, any standing, joint, or select committee or
subcommittee of the Senate and Assembly, and any other agency
or , employee , or consultant
of the Legislature.
(c) "Legislative records" means any writing prepared on or after
December 2, 1974, which that contains
information relating to the conduct of the public's business
prepared, owned, used, or retained , or
subject to control by the Legislature.
(d) "Writing" means any handwriting, typewriting,
printing, photostating, photographing,
photocopying, electronic mail, facsimile, text message, and
every other means of recording upon on any
tangible thing any form of communication or representation,
including letters, words, pictures, sounds, or
symbols, or combination combinations
thereof, and all papers, maps, magnetic or paper tapes,
photographic films and prints, magnetic or punched cards, discs,
drums, and other documents regardless of the manner in
which the record has been stored .
SEC. 2. Section 9073 of the Government Code is amended to read:
9073. (a) Legislative records are open to
inspection at all times during the normal office hours of the
Legislature and any person has a right to inspect any legislative
record, except as hereafter provided. Any person shall be furnished
reasonable opportunities for inspection of legislative records and
reasonable facilities for making memoranda or abstracts therefrom.
Any person may receive a copy of a legislative record if
such the record is of a nature permitting
such copying. At the option of the person
requesting the legislative record, the record shall be provided,
whenever possible, as an electronic file, in which case no fee may be
charged to the requester. The Legislature may establish fees
, not to exceed ten cents ($0.10) per page, reasonably
calculated to reimburse it for its actual cost in making
such paper copies available , provided
such fee shall not exceed ten cents ($0.10) per page .
Reimbursable costs for this purpose do not include costs for finding
and retrieving requested records, assessing the applicabi
lity of an exemption, or redacting exempt information.
(b) The following shall be produced and published by the
Legislature, without request, on a monthly basis, in a manner
providing the public ready and free access by means of the Internet:
(1) Records and information sufficient to show, for each Member of
the Legislature, the date, time, location, participants, and subject
matter of all appointments and meetings of the Member relating to
government matters during the preceding month.
(2) Records and information sufficient to show, both in the
aggregate and by separate expense type, the costs incurred by each
Member's office, by each committee or subcommittee, and by each of
the caucuses, during the preceding month.
(3) Records and information sufficient to show, for the office of
each Member of the Legislature and for each committee and
subcommittee, the compensation paid to all employees and consultants
during the preceding month, both in the aggregate and by recipient.
(4) Records or information sufficient to show all transfers or
reassignments of employees and consultants of the Legislature during
the preceding month.
(5) Records or information sufficient to show, for each Member's
office and for each committee and subcommittee of the Legislature,
all expenses for, or related to, travel and the names of the persons
for which the expenses are claimed during the preceding month.
SEC. 3. Section 9074 of the Government Code is amended to read:
9074. (a) All requests to inspect any
legislative record shall be made to the appropriate Rules Committee
of each house of the Legislature or the Joint Rules Committee
, except that all requests to inspect any legislative record
in the possession of the Auditor General shall be made to the Joint
Legislative Audit Committee . Such
Those committees shall be considered to have custody of all
legislative records and shall be responsible for making all
legislative records available for inspection. Such
Those committees shall promptly inform any person whether
any legislative record shall be made available for inspection.
Such The legislative records shall be
made available for inspection promptly and without unnecessary delay.
Whenever such a committee withholds
any legislative record from inspection, within four working days of
the request to inspect such a record,
the committee shall justify in writing the withholding of
such a record by demonstrating that the record
in question is exempt under the express provisions of this article
or that on the facts of the particular case the public
interest served by not making the record public clearly outweighs the
public interest served by disclosure of the record ,
provided that when the Legislature is not in session, such
the committee shall furnish
such written justification within 10 working days of the
request to inspect such the record. The
Rules Committee of each house , and
the Joint Rules Committee , and the Joint Legislative Audit
Committee shall adopt written guidelines stating the
procedures to be followed when making legislative records available
for inspection.
The
(b) If a legislative record contains information that is exempt
from disclosure and the exempt portions may reasonably be segregated,
the Legislature shall allow inspection and copying of the record
after redaction of the portions that are exempt from disclosure.
(c) The amendment of this section
made at the 1981-82 Regular Session of the Legislature does not
constitute a change in, but is declaratory of, the existing law.
SEC. 4. Section 9075 of the Government Code is amended to read:
9075. Nothing in this article shall be construed to invalidate or
affect the operation of Sections Section
10207 , or 10208 ,
10525, and 10526 of this code , or Temporary Joint Rule 37
of the Senate and Assembly in effect on the effective date of this
article, or to require the disclosure of records that are any of the
following:
(a) Preliminary drafts, notes, or legislative
Intralegislative memoranda containing the author's
recommendations or opinions, if the public interest in withholding
the record is manifestly greater than the public interest in
disclosure , except as provided in Section 9080.
(b) Records pertaining to , and created in connection with,
pending litigation to which the Legislature is a party, or to
claims made pursuant to Division 3.6 (commencing with Section 810) of
Title 1, until the litigation or claim has been finally adjudicated
or otherwise settled.
(c) Personnel, medical, or similar files, the disclosure of which
would constitute an unwarranted invasion of personal privacy
, provided that the Senate Committee on Rules, the Assembly
Committee on Rules, or the Joint Rules Committee shall determine
whether disclosure of these records constitutes an unwarranted
invasion of personal privacy .
(d) Records pertaining to the names and phone
Telephone numbers of senders and recipients of telephone
and telegraph communications, provided that
records of showing other information
pertaining to the communication, including the total charges
for any such the communication ,
shall be open for inspection.
(e) Records pertaining to the name and location of recipients of
automotive fuel or lubricants expenditures, provided that records of
the total charges for those expenditures shall be open for
inspection.
(f) In the custody of or maintained by the Legislative Counsel,
except those records in the public data base maintained by the
Legislative Counsel that are described in Section 10248. Legislative
records shall not be transferred to the custody of the Legislative
Counsel to evade the disclosure provisions of this chapter.
(g) In the custody of or maintained by the majority and minority
caucuses and majority and minority consultants of each house of the
Legislature, provided that legislative records shall not be
transferred to the custody of the majority and minority caucuses and
majority and minority consultants of each house of the Legislature to
evade the disclosure provisions of this chapter.
(h) Correspondence of and to individual Members of the Legislature
and their staff, except as provided in Section 9080.
(i)
(e) Records the disclosure of which is exempted or
prohibited pursuant to provisions of federal or state law, including,
but not limited to, provisions of the Evidence Code relating to
privilege. However, the Legislature, as a deliberative body
whose deliberations are conducted in public, is not subject to the
deliberative process privilege applicable to the Governor pursuant to
the decision of the California Supreme Court, interpreting the
California Public Records Act (Ch. 3.5 (commencing with Section 6250)
Div. 7, Title 1), in Times Mirror Co. v. Superior Court (1991) 53
Cal.3d 1325.
(j) Communications
(f) Confidential communications
from private citizens a constituent to
his or her representative Member of the Legislature,
except as provided in Section 9080.
(k) Records of complaints to or investigations conducted by, or
records of security procedures of, the Legislature.
(g) Records the disclosure of which reasonably could be expected
to pose a substantial security risk to the Legislature.
SEC. 5. Section 9077 of the Government Code is amended to read:
9077. (a) Whenever it is made to appear by
verified petition to the superior court of the county where the
records or some part thereof are situated that certain legislative
records are being improperly withheld from a member of the public,
the court shall order the committee charged with withholding the
records to disclose the legislative record or show cause why the
committee should not do so. The court shall decide the case after
having the option of examining the record in camera, if
permitted by subdivision (b) of Section 915 of the Evidence Code,
papers filed by the parties , and such oral argument and
additional evidence as the court may allow.
If
(b) If the court finds that the
committee's decision to refuse disclosure is not justified under the
provisions of Section 9074 or 9075, he the
judge shall order the committee to make the record available
for inspection. If the judge determines that the committee was
justified in refusing to make the record available for inspection, he
or she shall return the item to the committee without
disclosing its content with an order supporting the decision refusing
disclosure. Any person who fails to obey the order of the court
shall be cited to show cause why he or she is not in
contempt of court.
SEC. 6. Section 9079 of the Government Code is repealed.
9079. If the court finds that the plaintiff's case is clearly
frivolous, it shall award court costs and reasonable attorney fees to
the public agency.
SEC. 7. Section 9080 of the Government Code is amended to read:
9080. (a) The Legislature finds and declares that legislative
records relating to bills, resolutions, or proposed constitutional
amendments before the Legislature provide evidence of legislative
intent that may be important in the subsequent interpretation of laws
enacted in the Legislature. The Rules Committee of each house of the
Legislature and the Joint Rules Committee shall inform each
committee of the Senate and Assembly, and each joint committee of the
Legislature, of their responsibility to preserve legislative records
and make them available to the public.
(b) Each committee of the Senate or Assembly, and each joint
committee of the Legislature, having custody of legislative records
relating to a bill, resolution, or proposed constitutional amendment
assigned to that committee, shall maintain the legislative records
described in subdivision (d) in an official committee file. The
committee shall preserve those records in its custody, or, in the
alternative, may arrange with the State Archives to lodge some or all
of the records there under the condition that the records be
preserved.
(c) "Committee" for purposes of this section includes any entity
of the Senate or Assembly responsible for preparing analyses of
bills, resolutions, or proposed constitutional amendments that are to
be put to a vote by a quorum of the members of the Senate or
Assembly.
(d) "Legislative records," for purposes of this section, means
records contained in an official committee file, including, but not
limited to, all of the following:
(1) Committee staff analyses.
(2) Written testimony.
(3) Background material submitted to the committee.
(4) Press releases.
(5) Written commentary submitted to the committee on a bill,
resolution, or proposed constitutional amendment. For purposes of
this paragraph, "written commentary" does not include the
following:
(A) Material
material not utilized by the staff of a fiscal
committee in the preparation of any analysis for the members of that
committee.
(B) Communications determined by the committee or its staff to be
confidential.
(6) Versions of bills, resolutions, or proposed constitutional
amendments assigned to the committee.
(7) Relevant interim hearing materials, studies, case materials,
and articles.
(e) Legislative records contained in an official committee file
shall be open to inspection and copying by the public, pursuant to
Sections 9073 and 9074. Each committee of the Senate or Assembly, and
each joint committee of the Legislature, shall adopt and implement
written procedures consistent with Sections 9073 and 9074 for the
public's access to official committee files maintained in the
committee's office. The procedures shall provide for the time, place,
and other conditions under which committee files may be inspected
and copied. Each committee shall make copies of its written
procedures available to the public.
(f) The Rules Committee of each house of the Legislature or,
alternatively, the Joint Rules Committee shall provide for the
storage of any official committee file that is not maintained in the
office of the committee that created the file or lodged with the
State Archives. The Rules Committees of each house of the Legislature
or the Joint Rules Committee, as the case may be, shall adopt and
implement written procedures consistent with Section 9073 for the
public's access to official committee files so stored in its custody.
The procedures shall provide for the time, place, and other
conditions under which committee files may be inspected and copied,
and the committee shall make copies of its written procedures
available to the public.
(g) Nothing in this section requires making any legislative record
available for inspection that relates to any unchaptered bill,
resolution, or proposed constitutional amendment introduced in the
current legislative session, except in accordance with the
requirements and limitations specified in Sections 9073, 9074, and
9075.
SEC. 8. Section 9081 is added to the Government Code, to read:
9081. The Legislature shall not sell, exchange, furnish, or
otherwise provide a legislative record subject to disclosure pursuant
to this article to a private entity in a manner that prevents the
Legislature or any state agency from disclosing the record directly
pursuant to this article. The Legislature shall not allow a private
entity to control the disclosure of information that is otherwise
subject to disclosure pursuant to this article.
