The Keenan Blog

Blog

Ballot Initiative for More Transparency Submitted | Keenan

On August 2, 2023, a non-profit consumer group submitted a draft initiative to the California Attorney General’s (AG) office to prepare and circulate for an official title and summary entitled the “Government Transparency Act” with the goal to have the proposal voted on by voters in the November 2024 general election, with the law go into effect January 1, 2025.

The initiative is intended to make substantial changes to the California Public Records Act (CPRA) and the Legislative Open Records Act, with its sponsors arguing that that “those laws and principals have been abused or weakened by legislators and government officials.” Proponents of the measure argue that public officials and public agencies have engaged in conduct where public officials collect money from special interest donors behind closed doors and that government agencies frequently delay producing records that are available to the public. Furthermore, in dealing with the retaining of public records, they wish to limit the use of the attorney-client privilege amongst government agencies. Ultimately, this group argues that this proposal is “necessary to protect and expand the public’s right to access public records.”

If enacted, these proposed changes could have a wide-ranging impact on government agencies and private corporations doing business with the government. Below are some of the significant proposed changes:

Reduced Timeframe to Produce Records

Pursuant to the current CPRA, there are two steps an agency must follow to respond and produce records. First, the agency must promptly respond to the requestor indicating what records the agency has and will make available within 10 days via writing. (That time period may be extended up to 14-days due to an “unusual circumstance.”) Secondly, the records must be made available within a reasonable time. A public agency is not permitted to delay or obstruct the inspection or copying of the public records. Currently, the timing of producing records will depend on the type of information being requested and the amount of information requested.

The proposal keeps the 10-day response requirement but has changed the requirement to request an extension to only be allowed for “extraordinary circumstances.” Under the proposed ballot measure, the request must include a factual declaration made under penalty of perjury specifying the extraordinary circumstances.

Although, the “extraordinary circumstances” definition is similar to the “unusual circumstance” definition, the fact that a penalty of perjury statement has been attached to the request could raise the risk and create unnecessary litigation and penalties where the requestor challenges the statement.

The proposal also imposes a new deadline to produce records. The agency receiving the request would have 30 days from the receipt of the request to produce the records unless it showed of an “extraordinary circumstance” why it could not do so within 30 days. The proposal further provides that in no event should production of the records take more than 90 days, even if an “extraordinary circumstance” exists. The fact that agencies would be required to produce records in such a hurried time frame can create a burden on an agency in where additional staff may need to be hired to timely respond to requests.

Posting Requirements

This ballot measure would also require many more documents to be posted on public agency websites. Within 10 days of a certain records becoming final or becoming available to the agency a public agency would be required to post:

• Court and administrative proceedings where the agency is a party, including as an amicus curiae participant
• Contracts entered into by the agency
• Government tort claims received by the public agency
• Settlement agreements entered into by the public agency
• Annual budgets of the public agency
• Proposed regulations, comments received, and responses
• Budget and cost estimates prepared by the public agency for proposed legislation

This requirement would require public agencies to expend additional resources in posting additional items on their websites. Moreover, some of the information included in the documents listed above include potentially private or confidential information.

Creating a Privilege Log and Response to Redacted Information

Current regulations only require a written response if a request is denied in whole or in part; the agency is only required to advise the requestor of the names and positions of the person responsible for the denial. However, this initiative would require that the written response include specific bases for withholding or redacting a public record and would waive the exemption for privilege if the reason is not stated. If the agency is to assert inapplicable exemptions, without a reasonable factual basis, the requestor may ask the court to impose sanctions. Not only will a public agency need further explanation as to why it withheld information, but the requestor can also request the public agency to provide a detailed description of how the search for documents was conducted, a general description of the withheld documents, along with the reason to the agency chose to withhold and redact the documents, and the estimated number of the withheld and redacted documents. Should the requestor initiate legal action, a “privilege log” is to be created with certain specific information to be included in the log (date of the communication, senders/recipient, descriptions, etc.) Furthermore, where the names and positions of who is responsible for the denial would suffice in the response, this initiative would require that they state whether they are an attorney as well. The passage of this initiative will likely lead to the need for additional legal staff, including attorneys and paralegals to properly and carefully respond to CPRA requests at all levels of state and local government.

Preventing Use of Attorney-Client Privilege and Limiting 3^rd Parties from Blocking Disclosure

The current CPRA states that a public agency may not allow another party to control the disclosure of the information that is subject to disclosure. However, under this proposed initiative, the law would provide that there is no duty for the agency to notify the third party of the filing of the records request. If the agency chooses to notify the third party, they must also notify the requestor within three days. While a third party may bring a legal action to prevent the disclosure of public records, such filing would be subject to many restrictions, including securing a surety bond of $50,000, for the benefit of the requestor.

Furthermore, a public agency would be limited in the use of the attorney-client privilege and work product doctrine to protect the disclosure of documents, and the measure lists records that would not be considered privileged from production, including records transmitted from the agency to the attorney or from the attorney to the agency, factual information, billing rates, descriptions of work done upon conclusion of pending litigation, retainer and engagement agreements, any record created by or at the direction of an attorney, etc.

These proposals can create a substantial issue for not only public agencies but also for persons who have litigation pending or litigation that has concluded against the agency. While disclosure can be prevented by the litigant, it comes at a cost of a $50,000 surety bond.

Furthermore, it is unclear how this proposal will work with use of closed sessions under the Brown Act.

Conclusion

As the ballot measure has just been proposed, it is unclear at the present whether it will appear on the November 2024 ballot. The timeline for approval is set forth below.

• The AG must prepare and issue the circulating title and summary by October 26.
• The proponents may begin circulating the petition to collect 546,651 signatures by registered California voters after the AG prepares the title and summary as per the California Constitution requirement.
• These signatures are to be filed with the appropriate county elections officials by April 23, 2024.
• The Secretary of State will make the determination if the initiative petition meets the minimum signature requirements by May 9, 2024. For the initiative to be eligible for the November 2024 ballot, the Secretary of State must determine whether the measure qualifies, or a full check of the signatures is needed. If a full check is needed the measure does not qualify for the November 2024 ballot.

Once on the ballot, such an initiative would require a “Yes” vote of more than 50% to become law. As this is a measure with a potential to increase costs and litigation for schools, municipalities, public hospitals and other local public agencies, we will watch its progress closely in the coming months.