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AB-289 California Public Records Act Ombudsperson.(2019-2020)



SECTION 1.

 Article 5 (commencing with Section 8549) is added to Chapter 6.5 of Division 1 of Title 2 of the Government Code, to read:

Article  5. California Public Records Act Ombudsperson
8549.
 For purposes of this article, the following terms have the following meanings:
(a) “California Public Records Act” means the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1).
(b) “Member of the public” has the same meaning as defined in Section 6252.
(c) “Ombudsperson” means the California Public Records Act Ombudsperson created pursuant to this article.
(d) “Original request” means a request for records retained by a state agency made by a member of the public pursuant to the California Public Records Act.
(e) “Public agencies” has the same meaning as defined in Section 6252.
(f) “State agency” has the same meaning as defined in Section 6252.
(g) “Request for review” means a request for the ombudsperson to review a denial by a state agency of an original request.
(h) “Unusual circumstances” has the same meaning as defined in subdivision (c) of Section 6253.
8549.1.
 (a) There is, within the California State Auditor’s Office, a California Public Records Act Ombudsperson. The ombudsperson shall receive and investigate requests for review, determine whether the denials of original requests complied with the California Public Records Act, and issue written opinions of determination.
(b) (1) (A) The ombudsperson shall be appointed by the California State Auditor. The appointee shall have expertise in the California Public Records Act.
(B) In the event of a vacancy or if the ombudsperson is unable to fulfill the duties of the ombudsperson for a period of 30 days, the California State Auditor shall appoint a new ombudsperson within 30 days.
(2) The California State Auditor shall provide necessary staff to the ombudsperson to perform the functions and carry out the objectives of the ombudsperson.
(c) (1) The ombudsperson shall create a process that allows members of the public to submit a request for review.
(2) A member of the public who believes that a state agency improperly denied an original request made by that member of the public may, in the form and manner prescribed by the ombudsperson pursuant to paragraph (1), submit a request for review.
(3) (A) (i) The ombudsperson shall, within 30 days from receipt of a request for review, determine whether the original request, in whole or in part, sought copies of disclosable public records that were in the possession of the state agency and whether the agency’s denial of the request complied with the California Public Records Act.
(ii) Upon completion of its review, the ombudsperson shall promptly notify the member of the public who submitted the request for review and the state agency of its determination and the reasons therefor.
(iii) In unusual circumstances, the time limit specified in clause (i) may be extended by written notice to the member of the public who submitted the request for review and the state agency, setting forth the reasons for the extension and the date on which a determination is reasonably expected to be dispatched. The ombudsperson shall reassess the circumstances necessitating the extension of the time period specified in clause (i) every 30 days and, in the event the date on which a determination is reasonably expected to be dispatched changes, notify the requester and the state agency.
(B) If the ombudsperson determines that the state agency improperly denied disclosure of the public record or records, the ombudsperson shall require the state agency to provide the public record or records to the member of the public who submitted the request for review.
(C) The ombudsperson may require any state agency determined to have improperly denied a request for public records to reimburse the ombudsperson for its costs to investigate the request for review.
(4) A state agency that is the subject of a request to review shall provide the ombudsperson access to all relevant information, documents, and other records upon which the agency relied in denying the original request, or that the ombudsperson requests to assist in its review of the agency’s determination.
(5) The ombudsperson shall not disclose any records that are exempt from disclosure by express provisions of law, including, but not limited to, the California Public Records Act.
(d) The ombudsperson shall maintain a copy of any written opinion issued pursuant to this section and shall post the opinion on its internet website.
(e) (1) An opinion issued under this section does not affect the right of a person to enforce their right to inspect or to receive a copy of any public record through an action pursuant to Sections 6258 and 6259. A member of the public is not required to exhaust the administrative remedies available under this section prior to filing a legal action.
(2) If a person elects to bring an action under Sections 6258 and 6259 and does not seek a request for review, the ombudsperson shall not proceed under this section.
(3) A person may withdraw, by written notice, their request for review under this section if the withdrawal notice is received by the ombudsperson prior to the issuance of an opinion.
(f) Notwithstanding any other provision of this section, the ombudsperson may provide written information, guidance, and advice to both public agencies and members of the public regarding the California Public Records Act, including by posting such information, guidance, and advice on its internet website.
(g) (1) On or before January 1, 2021, and every year thereafter, the ombudsperson shall provide a report to the Legislature on all of the following:
(A) The activities of the ombudsperson in the prior year.
(B) The number of requests to review that were submitted to the ombudsperson in the prior calendar year and the number of determinations made by the ombudsperson that a state agency improperly denied a request for a public record or records.
(C) Any proposals, both legislative and administrative, that would allow the ombudsperson to function more independently and provide more transparency to the records of public agencies.
(D) The amounts of reimbursements sought and obtained from state agencies for the cost of investigating requests for review conducted by the ombudsperson pursuant to this section.
(2) The report shall comply with Section 9795.