Bureaucracies love secrets. They pay lip service to transparency, but have a powerful instinct to dummy up.
This predilection for secrecy clashes on a daily basis with Californians’ fundamental right to information about how their government is working—a right granted by statute and enshrined in the state Constitution.
This confrontation highlights the importance, or potential importance, of Assembly Bill 289 by Assemblyman Vince Fong, a Republican from Bakersfield. Fong’s bill aims to create a state-level ombudsman to decide appeals filed by members of the public who get stiffed when they request records from state or local agencies.
We’ll see where Fong takes AB 289. But it’s long past time for a comprehensive review and reform of how state and local agencies treat records requests. Policies and procedures need to be thoroughly examined and scrubbed to ensure full compliance with statutory and constitutional mandates that give primacy to transparency.
The California Public Records Act, enacted in 1968, establishes as “fundamental and necessary” the people’s right to access information about their government’s conduct. It codifies the people’s right to “inspect any public record” held by government agencies.
In 2004, voters strengthened the transparency imperative when, via a ballot initiative, they added an open records mandate to the state Constitution, Article 1, Section 3(b).
These bedrock principles should stand front and center of every decision made by state and local agencies regarding disclosure of public records. Instead, they too frequently languish in the shadows as bureaucracies–sometimes aligned with or pressured by regulated industries or employee unions–keep cloaked documents and information.
Government agencies have plenty of confidentiality tools at their disposal. California’s codes are littered with provisions that allow government to keep some records hidden. The California Public Records Act itself has enough disclosure exceptions to fill an oil tanker.
However, Article 1, Section 3(b) specifies that any law or regulation, including those in place when the initiative took effect, “shall be broadly construed if it furthers the people’s right of access, and narrowly construed if it limits the right of access.”
To see how the constitution is supposed to work, consider the many Public Record Act provisions that say agencies don’t have to disclose some records. These provisions do not mandate secrecy. They merely give agencies the discretion to keep records confidential.
Per Article 1, Section 3(b), agencies should narrowly interpret them to maximize disclosure. The California Supreme Court, in a unanimous 2013 ruling, said as much.
Nevertheless, many agencies continue to interpret Public Record Act exceptions as carte blanche to conceal.
The Legislature warrants scrutiny, too. In 2017, lawmakers passed a law that strengthened consumer protections in the so-called PACE program, short for Property Assessed Clean Energy.
AB 1284 included a provision that prohibited public access to the regulator’s audit records when PACE solicitors or their agents broke the law and agreed to the regulator’s enforcement measures, including a demand that they get out of the business because of their violations.
Article 1, Section 3(b) says any law that restricts access must include “findings demonstrating the interest protected by the limitation and the need for protecting that interest.”
Here’s AB 1284’s attempt to comply with the constitution:
“In order to protect the privacy of a … PACE solicitor or PACE solicitor agent who has complied with (the regulator’s) demands … during an investigation, it is necessary to hold any examinations and correspondence related to that investigation confidential.”
That language makes a mockery of Article 1, Section 3(b). It says nothing about why it’s important to protect the privacy of lawbreakers. Fortunately, the mandatory secrecy provision of AB 1284 was repealed in 2018.
But the incident raises questions about whether half-hearted attempts to meet the constitution’s findings requirement have become the standard.
Californians deserve an end to the days when their government too often gives the benefit of the doubt to secrecy. Hopefully, AB 289 will help us get there.
Tom Dresslar is a former reporter who covered state government for 13 years and worked in it for 18 years. He is now retired. He can be reached at [email protected] He wrote this commentary for CALmatters. Please see his previous CALmatters commentary here.