State Senator Introduces Bill Making Public Records Law Harder to Enforce

California State Senator Ben Hueso (D-San Diego) introduced a bill on February 22 requiring that individuals take extra steps before turning to the courts to obtain records under the California Public Records Act. Hueso’s bill was sponsored by San Diego City Attorney Mara Elliott.

The California Public Records Act is a law that governs the public’s access to government records, including police reports, government contracts, Title IX investigation reports, and communications between government officials. The law mandates that government agencies respond within ten days of the request and places limits on what is considered public record.

When a member of the public disagrees with the outcome of a request, or if the government agency does not respond to the request, an individual can sue for release of the records.

Senate Bill (SB) 615, sponsored by the San Diego City Attorney’s office, requires that individuals meet “in good faith” with an agency before taking legal action for violations under the Public Records Act.

The bill also sets five standards for when a requester can win a case and recover legal fees, depending on the violation. If the state court deems the lawsuit “frivolous,” then the requestor cannot recover legal fees.

“That no-excuses rule [for legal fee recovery] was created in a recent case that cost taxpayers $158,000,” Elliott wrote in an op-ed to Times of San Diego. “Following a diligent search, the city had provided hundreds of records, but an innocent error was made. The lawyer who discovered the mistake got paid $158,000 in fees—money that could have gone to streets and sidewalks, parks and libraries.”

Elliott stressed that she does not believe the bill will restrict the public’s ability to hold government accountable to public records law, but many say otherwise. Voice of San Diego reported that SB 615 will make the Public Records Act more difficult to enforce due to loopholes that could prevent lawsuits when an agency doesn’t respond to the request, or when recovering legal fees. The San Diego Union-Tribune editorial board reinforced this argument.

“Government agencies and officials need to realize they are stewards of the public trust,” The San Diego Union-Tribune editorial board wrote. “Handling public records requests—and releasing public information—is a part of public service. There are numerous examples of governments delaying or refusing to release records. That bad behavior shouldn’t be incentivized.”

Over the last several years, The Triton has frequently used requests under the Public Records Act to obtain documents, including Housing Dining Hospitality’s contract with Coca-Cola, which raised the prices of products at UC San Diego, and the investigation report finding that former professor John Hoon Lee violated sexual misconduct policy. In some cases, The Triton received pushback for the records they requested; in other cases, records requests were denied or delayed.

The Triton reached out to Kelly Aviles, an open government attorney, for her opinion on the bill. Aviles focuses on Public Records Act violations and open meeting law, and she recently won cases over disclosure of police misconduct records under a new state law.

“This legislation is the worst legislation for the Public Records Act that I’ve seen in some time,” Aviles said. “It would literally gut the only remedy that requesters have to hold government accountable: the threat for legal fees. [Blocking retention of legal fees] would put a tremendous financial burden on requesters and there’s absolutely zero need for it.”

Ethan Edward Coston is an Assistant News Editor of The Triton. You can follow him @Ethan4Books.