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AB-1479 Public records: custodian of records: civil penalties.(2017-2018)

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Date Published: 04/27/2017 09:00 PM
AB1479:v97#DOCUMENT

Amended  IN  Assembly  April 27, 2017
Amended  IN  Assembly  March 21, 2017

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill No. 1479


Introduced by Assembly Member Bonta
(Coauthor: Assembly Member Cristina Garcia)

February 17, 2017


An act to amend Sections 6255 and 6259 of the Government Code, relating to public records.


LEGISLATIVE COUNSEL'S DIGEST


AB 1479, as amended, Bonta. Public records: supervisor custodian of records: fines. civil penalties.
Existing law, the California Public Records Act, requires a public agency, defined to mean any state or local agency, to make its public records available for public inspection and to make copies available upon request and payment of a fee, unless the public records are exempt from disclosure. Existing law requires an agency to justify withholding a record from disclosure by demonstrating either that the record in question is exempt under express provisions of law 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. Existing law requires specified state and local agencies to establish written guidelines for accessibility of records. Existing law authorizes a person to institute proceedings for injunctive or declarative relief or writ of mandate in any court of competent jurisdiction to enforce his or her right to inspect or to receive a copy of any public record or class of public records under these provisions.
This bill would require public agencies to identify a supervisor designate a person or office to act as the agency’s custodian of records who shall review a determination by the agency that a request for records is denied. is responsible for responding to any request made pursuant to the California Public Records Act and any inquiry from the public about a decision by the agency to deny a request for records. The bill also would make other conforming changes. Because the bill would require local agencies to perform additional duties, the bill would impose a state-mandated local program.
The bill would also authorize a court that finds that an agency or the custodian improperly withheld public records from a member of the public without justification, failed to furnish a properly requested record or a portion thereof in a timely manner, public, public records which were clearly subject to public disclosure, unreasonably delayed providing the contents of a record subject to disclosure in whole or in part, assessed an unreasonable or unauthorized fee upon a requester, or otherwise did not act in good faith to comply with these provisions, to assess punitive damages a civil penalty against the agency in an amount not less than $1,000, nor more than $5,000, that shall be deposited into the Public Records Assistance Fund, which is created by the bill. $5,000.

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

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
The California 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.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

 Section 6255 of the Government Code is amended to read:

6255.
 (a) The agency shall justify withholding any record by demonstrating that the record in question is exempt under express provisions of this chapter 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.
(b) A response to a written request for inspection or copies of public records that includes a determination that the request is denied, in whole or in part, shall be in writing.
(c) Each agency shall identify a supervisor designate a person or office to act as the agency’s custodian of records who shall review a determination is responsible for responding to any request made pursuant to this chapter and any inquiry from the public about a decision by the agency that to deny a request for records is denied. records.

SEC. 2.

 Section 6259 of the Government Code is amended to read:

6259.
 (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 public records are being improperly withheld from a member of the public, the court shall order the supervisor custodian of records or person charged with withholding the records to disclose the public record or show cause why he or she should not do so. The court shall decide the case after examining the record in camera, if permitted by subdivision (b) of Section 915 of the Evidence Code, papers filed by the parties and any oral argument and additional evidence as the court may allow.
(b) If the court finds that the supervisor custodian of records’ or other public official’s decision to refuse disclosure is not justified under Section 6254 or 6255, he or she shall order the supervisor custodian of records or public official to make the record public. If the judge determines that the supervisor custodian of records or other public official was justified in refusing to make the record public, he or she shall return the item to the supervisor custodian of records or other public official without disclosing its content with an order supporting the decision refusing disclosure.
(c) In an action filed on or after January 1, 1991, an order of the court, either directing disclosure by a public official or supporting the decision of the supervisor custodian of records or other public official refusing disclosure, is not a final judgment or order within the meaning of Section 904.1 of the Code of Civil Procedure from which an appeal may be taken, but shall be immediately reviewable by petition to the appellate court for the issuance of an extraordinary writ. Upon entry of any order pursuant to this section, a party shall, in order to obtain review of the order, file a petition within 20 days after service upon him or her of a written notice of entry of the order, or within a further time not exceeding an additional 20 days as the trial court may for good cause allow. If the notice is served by mail, the period within which to file the petition shall be increased by five days. A stay of an order or judgment shall not be granted unless the petitioning party demonstrates it will otherwise sustain irreparable damage and probable success on the merits. 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.
(d) (1) The court shall award court costs and reasonable attorney fees to the plaintiff should the plaintiff prevail in litigation filed pursuant to this section. The costs and fees shall be paid by the public agency of which the supervisors custodian of records or public official is a member or employee and shall not become a personal liability of the supervisor custodian of records or public official.
(2) 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.
(3) If a court finds that an agency or the supervisor custodian of records or other public official of an agency improperly withheld a public record from a member of the public without justification, failed to furnish a properly requested record or a portion thereof in a timely manner, that was clearly subject to public disclosure, unreasonably delayed providing the contents of a record subject to disclosure in whole or in part, assessed an unreasonable or unauthorized fee upon a requester, or otherwise did not act in good faith to comply with this chapter, the court may assess punitive damages a civil penalty against the agency in an amount not less than one thousand dollars ($1,000) nor more than five thousand dollars ($5,000) that shall be deposited into the Public Records Assistance Fund, which is hereby established in the state treasury. ($5,000).

SEC. 3.

If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.

SEC. 3.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district under this act would result from a legislative mandate that is within the scope of paragraph (7) of subdivision (b) of Section 3 of Article I of the California Constitution.

SEC. 4.

 The Legislature finds and declares that Sections 1 and 2 of this act, which amend Sections 6255 and 6259 of the Government Code, respectively, further, within the meaning of paragraph (7) of subdivision (b) of Section 3 of Article I of the California Constitution, the purposes of that constitutional section as it relates to the right of public access to the meetings of local public bodies or the writings of local public officials and local agencies. Pursuant to paragraph (7) of subdivision (b) of Section 3 of Article I of the California Constitution, the Legislature makes the following findings:
By requiring local agencies to designate custodians of records responsible for responding to requests and inquiries under the California Public Records Act, this act furthers the public’s access to public records.