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A couple months ago, Gov. Jerry Brown and the California Legislature nearly gutted the California Public Records Act under the guise of saving taxpayer money. Today, the act remains intact, but it’s hardly as strong as it should be.
As part of their budget negotiations, Brown and company had considered legislation that would have significantly reduced funds that the state provides to cities and counties to offset the cost of fulfilling public records requests. But they abruptly changed course after critics blasted them for trying to undermine the public’s right to know.
In theory, the California Public Records Act upholds the “fundamental and necessary right of every person in this state” to examine documents and data that public officials maintain on our behalf. Officials are supposed to “promptly” provide access to information when taxpayers make a reasonable and specific request, but delays are common and fees can be burdensome and excessive.
By making taxpayers fight for documents and data that should be easily accessible, government agencies send the message that taxpayers can’t actually be trusted with the information.
Last year, a national study of state laws and practices that are supposed to promote transparency and curb corruption gave California a near-failing grade when it came to a key indicator of openness: public access to information.
California had plenty of dubious company: the State Integrity project gave failing grades to nearly half of the states when it came to open records, but among the five states rated highest overall by the study, California ranked lowest in this crucial area.
Here are three ways to fix the California Public Records Act:
Shift the burden of proof
In 2008, Pennsylvania bolstered its public-records law with language that “presumed” government records were open unless the records fell under a specific exemption. “The burden of proving that a record of a Commonwealth agency or local agency is exempt from public access shall be on the Commonwealth agency or local agency receiving a request by a preponderance of the evidence.”
Two phrases stand out here: “burden of proving” and “preponderance of the evidence.” That’s an order to make records open by default. It’s also a warning: Government agencies better be able to defend their decision to withhold information in civil court.
An express presumption of openness would strengthen the CPRA.
Engage the tech community
California is the birthplace of Code for America, a nonprofit that embeds computer programming fellows in local government agencies and helps them solve problems with software code. It is also home to some of the world’s biggest and most sophisticated technology companies.
The Golden State should be leading the charge in the open-government revolution. State and local agencies should engage civic-minded technologists and open-government advocates about how best to convert and publish information in machine-readable form before citizens ask for it.
The state’s open data site is a good start. Next step: a vast library of digital documents that can easily be searched and converted into data.
Local Officials Need to Step Up
Sure, there are specific exemptions to the CPRA that make sense — disclosing information that would make the state vulnerable to attack, for example, is a bad idea — but there are broad categories of public information that should be more, well, public.
Municipalities should work with open-government advocates and civic technologists to exceed the minimum requirements of the CPRA and establish laws and policies that presume records to be open (e.g., the mayor’s calendar). Adding a presumption of openness to the legal documents that govern cities and counties would make it binding on all agencies, but a mayoral executive order could provide good momentum.
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