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CC SR 20170516 D - AB 1479 Public Records Act RequestsRANCHO PALOS VERDES CITY COUNCIL AGENDA REPORT AGENDA DESCRIPTION: MEETING DATE: 05/16/2017 AGENDA HEADING: Consent Calendar Consideration and possible action to take a position opposing Assembly Bill No. 1479 regarding public records act requests RECOMMENDED COUNCIL ACTION: (1) Authorize the Mayor to sign a letter in opposition to Assembly Bill No. 1479 (AB 1479) regarding public records act requests. FISCAL IMPACT: None Amount Budgeted: N/A Additional Appropriation: N/A Account Number(s): N/A ORIGINATED BY: Kit Fox, AICP, Senior Administrative Analyst, REVIEWED BY: Gabriella Yap, Deputy City Manager; - APPROVED BY: Doug Willmore, City Managerly{ ATTACHED SUPPORTING DOCUMENTS: A. Draft letter in opposition to AB 1479 (page A-1) B. League of California Cities "Action Alert" for of AB 1479 (page B-1) C. AB 1479 (page C-1) BACKGROUND AND DISCUSSION: On April 24, 2017, the League of California Cities (League) advised Staff that Assembly Bill No. 1479 (AB 1479) had been introduced on February 17, 2017, by Assemblymember Rob Bonta from Oakland. As currently proposed, AB 1479 would place substantial burdens local governments by adding onerous, costly, and unnecessary requirements in processing California Public Records Act (CPRA) requests. As the City Council is aware, we have seen a significant spike in CPRA requests in recent years. AB 1479 includes provisions that would: Mandate that every local agency assign a "Custodian of Record" to review each public records act denial prior to the final determination being issued. Cause further delays in processing requests by creating an additional step in the process whereby every request denial would have to be reviewed by the Custodian of Record before a final determination from the agency can be issued. 1 Establish new and costly punitive damages assessed to agencies above and beyond plaintiffs' attorney fees established in current law. The additional punitive damages award provision could be as high as $5,000 per violation. This may lead to a litany of satellite litigation given the grounds for punitive damages are so vast. Under this measure damages can be awarded on every type of violation, no matter if a denial was made in good faith, etc. In addition, AB 1479 fails to take into account that many of these requests are often made from requesters and/or private entities who reside outside of our jurisdictional boundaries. Serial filers tend to make incredibly complex data requests, which are then repackaged and sold. Due to the increased volume of such requests, many agencies— large and small—have already had to hire additional staff dedicated solely to review documents in association with CPRA requests. Staff appreciates that is the duty of the City respond timely and completely to requests for public records, and is committed to continuing to do so. However, Staff believes that the enactment of AB 1479 will tend to incentivize the filing of repetitive and frivolous CPRA requests at the expense of other critical City functions. Therefore, Staff has prepared a letter in opposition to the bill for the Mayor's signature. Staff continue to monitor and provide periodic updates to the City Council regarding AB 1479. ALTERNATIVES: In addition to the Staff recommendation, the following alternative action is available for the City Council's consideration: Do not authorize the Mayor to sign a letter in opposition to AB 1479. 2 May 16, 2017 The Honorable Rob Bonta California State Assembly, 18th District State Capitol Building, Rm. 2148 Sacramento, CA 95814 Via FAX: (916) 319-2118 SUBJECT: AB 1479 (Bonta). Public Records: Custodian of Records: Civil Penalties Notice of Opposition (as amended 04/27/17) Dear Assembly Member Bonta: The City of Rancho Palos Verdes must respectfully oppose Assembly Bill (AB) 1479, which would place substantial burdens on local agencies by adding onerous, costly and unnecessary requirements in processing California Public Records Act (CPRA) requests. AB 1479 would mandate that every local agency assign a "Custodian of Records" to review each public records act denial prior to the final determination being issued. Additionally, the measure establishes new and costly punitive damages assessed to agencies above and beyond plaintiffs' attorney fees established in current law. Local agencies strive to comply with the strict guidelines inherent with the CPRA; this measure runs counter to that intent. AB 1479 would cause further delays in processing requests by creating an additional step in the process whereby every request denial would have to be reviewed by the Custodian of Records before a final determination from the agency can be issued. Local agencies have seen a significant spike in CPRA request in recent years. As the home of the Trump National Golf Club Los Angeles, the City of Rancho Palos Verdes has seen a sharp and continuing spike in CPRA requests related to President Trump's business and real estate holdings since the November 2016 election. This measure fails to take into account that many of these requests are often made from requesters and/or private entities who reside outside of our jurisdictional boundaries. Moreover, these serial filers make incredibly complex data requests which are then repackaged and sold. Due to the increased volume of such requests, many agencies—large and small—have already had to hire additional staff dedicated solely to review documents in association with CPRA requests. AB 1479 also creates increased litigation for local agencies under the CPRA. A requester can file suit on the day after responsive records are due which could be as early as eleven days after the request if there has been no extension of time. Once a suit is filed, generous attorneys' fees established in current law may still be awarded under the "catalyst" theory even if the agency discloses the requested records after the litigation A-1 Assembly Member Bonta May 16, 2017 Page 2 has commenced. Adding the additional punitive damages awards as high as $5,000 per violation will lead to a litany of satellite litigation given the grounds for punitive damages are so vast. Local agencies already potentially face significant liability exposure each time a request is denied due to the potential award of attorneys' fees. For these reasons, the City of Rancho Palos Verdes respectfully opposes AB 1479. Sincerely, Brian Campbell Mayor cc: Rancho Palos Verdes City Council Senator Ben Allen, 26th State Senate District (via FAX (916) 651-4926) Assembly Member Al Muratsuchi, 66th State Assembly District (via FAX (916) 319- 2166) Jeff Kiernan, League Regional Public Affairs Manager) Alison Merrilees, Chief Counsel, Assembly Judiciary Committee Paul Dress, Consultant, Republican Caucus Meg Desmond, League of California Cities A-2 From: Jeff Kiernan To: Jeff Kiernan Subject: ACTION ALERT: AB 1479 (Bonta) Requires "Supervisor of Records" for CPRA Requests Date: Monday, April 24, 2017 2:02:43 PM Attachments: AB 1479 (Bonta) SAMPLE City Oppose Letter 4.20.17.docx ab 1479 98 A bill.Ddf Good Afternoon City Managers, Below is an action alert on AB 1479 which seeks to further complicate CA Public Records Act requests. Please consider sending in a letter of opposition. Since there are no members from our region on this committee and, because this bill needs to go to appropriations, please consider getting in your letters in the next 3 weeks to allow for them to arrive before the Appropriations committee will meet on this bill (likely the week of May 21). Please let me know if you have any questions. Jeff ACTION ALERT! ! AB 1479 (Bonta) Requires "Supervisor of Records" for CPRA Requests OPPOSE Background: AB 1479 would place substantial burdens local governments by adding onerous, costly, and unnecessary requirements in processing California Public Records Act (CPRA) requests. It should be noted that local governments have seen a significant spike in CPRA requests in recent years. For example, in 2013 the City of Sacramento processed 1,800 CPRA requests. In 2016 the city processed 4,002 requests— and that number is projected to increase in 2017. This measure includes provisions which would: • Mandate that every local agency assign a "Supervisor of Record" to review each public records act denial prior to the final determination being issued. • Cause further delays in processing requests by creating an additional step in the process whereby every request denial would have to be reviewed by the Supervisor of Record before a final determination from the agency can be issued. Establish new and costly punitive damages assessed to agencies above and beyond plaintiffs' attorney fees established in current law. The additional punitive damages award provision could be as high as $5,000 per violation. This may lead to a litany of satellite litigation given the grounds for punitive damages are so vast. Under this measure damages can be awarded on every type of violation, no matter if a denial was made in good faith, etc. In addition, AB 1479 fails to take into account that many of these requests are often made from requesters and/or private entities who reside outside of our jurisdictional boundaries. Serial filers tend to make incredibly complex data requests which are then repackaged and sold. Due to the increased volume of such requests, many agencies large and small have already had to hire additional staff dedicated solely to review documents in association with CPRA requests. ACTION: AB 1479 will be heard on April 25th in the Assembly Judiciary Committee. If you have an Assembly Member on this committee, please send your CITY LETTER OF OPPOSITION as soon as possible. A sample letter is attached or a letter may also be sent through the League's online Action Center. You can find your Legislator's contact information here: http://findyourrep.legislature.ca.gov/. Talking Points: • Local agencies strive to comply with the strict guidelines inherent with the CPRA; this measure runs counter to that intent. AB 1479 would cause further delays in processing requests by creating an additional step in the process whereby every request denial would have to be reviewed by the Supervisor of Record before a final determination from the agency can be issued. • [CITY] has seen a significant spike in CPRA request in recent years. For example, [if you have data to support the increase in CPRA requests, please include that here]. This measure fails to take into account that many of these requests are often made from requesters and/or private entities who reside outside of our jurisdictional boundaries. • [If your city has had to hire additional staff to fulfill CPRA requests please share specifics here] Due to the increased volume of requests, [CITY] has already had to hire additional staff dedicated solely to review documents in association with CPRA requests. 0 Under the CPRA, the requester can file suit on the day after responsive records are due which ASSEMBLY JUDICIARY Member District Party Room Phone Fax Chau. Ed 49 D� 5016 916 319 2049 916 319 2149 Chiu, David 17 D� 4112 916 319 2017 916 319 2117 Cunningham. Jordan (Vice- 35 4102 91631920 916 319 2135 Chair) Garcia. Cristina 58 D� 2013 91631920 916 319 2158 Holden. Chris 41 D� 5132 916 319 2041 916 319 2141 Kalra. Ash 27 DD 5160 916 319 2027 916 319 2127 Kiley. Kevin © R 4153 91631920 916 319 2106 Maienschein. Brian 77 R� 4139 916 319 2077 916 319 2177 Reyes. Eloise G6mez 47 D� 4015 916 319 2047 916 319 2147 Stone. Mark (Chair) 29 D� 3146 916 319 2029 916 319 2129 Ting. Philip 19 6026 916 319 2019 916 319 2119 You can find your Legislator's contact information here: http://findyourrep.legislature.ca.gov/. Talking Points: • Local agencies strive to comply with the strict guidelines inherent with the CPRA; this measure runs counter to that intent. AB 1479 would cause further delays in processing requests by creating an additional step in the process whereby every request denial would have to be reviewed by the Supervisor of Record before a final determination from the agency can be issued. • [CITY] has seen a significant spike in CPRA request in recent years. For example, [if you have data to support the increase in CPRA requests, please include that here]. This measure fails to take into account that many of these requests are often made from requesters and/or private entities who reside outside of our jurisdictional boundaries. • [If your city has had to hire additional staff to fulfill CPRA requests please share specifics here] Due to the increased volume of requests, [CITY] has already had to hire additional staff dedicated solely to review documents in association with CPRA requests. 0 Under the CPRA, the requester can file suit on the day after responsive records are due which could be as early as eleven days after the request if there has been no extension of time. Once a suit is filed, generous attorneys' fees established in current law may still be awarded. It is our contention that adding the additional punitive damages award provision—which could be as high as $5,000 per violation will lead to a litany of satellite litigation given the grounds for punitive damages are so vast. • The idea of punitive damages becoming a fixture in legislation against public entities is a troublesome precedent. Local agencies already potentially face significant liability exposure each time a request is denied due to the potential award of attorneys' fees. • AB 1479 appears to authorize a requestor to sue a public agency if the agency has "assessed an unreasonable fee upon a requester." However, the term "unreasonable" is not defined in this measure. This creates uncertainty for agencies and increasing their exposure to litigation. Jeffrey Kiernan Regional Public Affairs Manager League of California Cities® 8581 Santa Monica Blvd. #325 West Hollywood, CA 9o069 Cell: (31o) 630-7505 AMENDED IN ASSEMBLY APRIL 27, 2017 AMENDED IN ASSEMBLY MARCH 21, 2017 CALIFORNIA LEGISLATURE -2o17-18 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:supervisecustodian 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. 97 C-1 AB 1479 —2— This 2— This bill would require public agencies to identify a designate a person or office to act as the agency's custodian of records who is 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 withheldpublie reeo from a member of the publie without justifieatiott, failed to fttmish a properly requested reeor 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 datnages a civil penalty against the agency in an amount not less than $1,000, nor more than—$54,)0G—,t-Aimee by the bill. $S, 000. The Galifomia Constitution requires the state to reitribuirse loeal This bill would provide that, if the Commission on Stafe Mandafes detenttines that the bill eotttains eests mandated by the stafe, reinibursement for those eosts shall be made pursttant to the sta"o oted 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. 97 C-2 — 3 — AB 1479 This bill would make legislative findings to that effect. Vote: majority. Appropriation: no. Fiscal committee: yes. State -mandated local program: yes. The people of the State of California do enact as follows: 1 SECTION 1. Section 6255 of the Government Code is amended 2 to read: 3 6255. (a) The agency shall justify withholding any record by 4 demonstrating that the record in question is exempt under express 5 provisions of this chapter or that on the facts of the particular case 6 the public interest served by not disclosing the record clearly 7 outweighs the public interest served by disclosure of the record. 8 (b) A response to a written request for inspection or copies of 9 public records that includes a determination that the request is 10 denied, in whole or in part, shall be in writing. 11 (c) Each agency shall identify a supeffiso designate a person 12 or office to act as the agency's custodian of records whorl 13 review a dote ..., ittat: o is responsible for responding to any request 14 made pursuant to this chapter and any inquiry from the public 15 about a decision by the agency -that to deny a request for-reeords 16 is records. 17 SEC. 2. Section 6259 of the Government Code is amended to 18 read: 19 6259. (a) Whenever it is made to appear by verified petition 20 to the superior court of the county where the records or some part 21 thereof are situated that certain public records are being improperly 22 withheld from a member of the public, the court shall order the 23 custodian of records or person charged with withholding 24 the records to disclose the public record or show cause why he or 25 she should not do so. The court shall decide the case after 26 examining the record in camera, if permitted by subdivision (b) 27 of Section 915 of the Evidence Code, papers filed by the parties 28 and any oral argument and additional evidence as the court may 29 allow. 30 (b) If the court finds that theses custodian of records' 31 or other public official's decision to refuse disclosure is not 32 justified under Section 6254 or 6255, he or she shall order the 33 sttperviser custodian of records or public official to make the record 34 public. If the judge determines that the stperviso custodian of 97 C-3 AB 1479 —4— I 4- 1 records or other public official was justified in refusing to make 2 the record public, he or she shall return the item to the.erisar 3 custodian of records or other public official without disclosing its 4 content with an order supporting the decision refusing disclosure. 5 (c) In an action filed on or after January 1, 1991, an order of 6 the court, either directing disclosure by a public official or 7 supporting the decision of the supeffiso custodian of records or 8 other public official refusing disclosure, is not a final judgment or 9 order within the meaning of Section 904.1 of the Code of Civil 10 Procedure from which an appeal may be taken, but shall be 11 immediately reviewable by petition to the appellate court for the 12 issuance of an extraordinary writ. Upon entry of any order pursuant 13 to this section, a party shall, in order to obtain review of the order, 14 file a petition within 20 days after service upon him or her of a 15 written notice of entry of the order, or within a further time not 16 exceeding an additional 20 days as the trial court may for good 17 cause allow. If the notice is served by mail, the period within which 18 to file the petition shall be increased by five days. A stay of an 19 order or judgment shall not be granted unless the petitioning party 20 demonstrates it will otherwise sustain irreparable damage and 21 probable success on the merits. Any person who fails to obey the 22 order of the court shall be cited to show cause why he or she is not 23 in contempt of court. 24 (d) (1) The court shall award court costs and reasonable attorney 25 fees to the plaintiff should the plaintiff prevail in litigation filed 26 pursuant to this section. The costs and fees shall be paid by the 27 public agency of which the su}3ervisers custodian of records or 28 public official is a member or employee and shall not become a 29 personal liability of the supefvisor custodian of records or public 30 official. 31 (2) If the court finds that the plaintiff's case is clearly frivolous, 32 it shall award court costs and reasonable attorney fees to the public 33 agency. 34 (3) If a court finds that an agency or thesttperviser custodian 35 of records or other public official of an agency improperly withheld 36 a public record from a member of the public without justifieation, 37 38 , that was clearly subject to public disclosure, 39 unreasonably delayed providing the contents of a record subject 40 to disclosure in whole or in part, assessed an unreasonable or 97 C-4 — 5 — AB 1479 1 unauthorized fee upon a requester, or otherwise did not act in good 2 faith to comply with this chapter, the court may assesspunitive 3 damages a civil penalty against the agency in an amount not less 4 than one thousand dollars ($1,000) nor more than five thousand 5 dollars($5,000) that shall be deposited into the Publie Reeords 6 Assistanee Ftmd, whieh is hereby established itt the state treasttry. 7 ($5,000). 8 SEC. 3. if the Go State Mandates determittes that 9 this aet eotttaitts eosts mandated by the state, rein+ttrsetnent to 10 11 13 SEC. 3. No reimbursement is required by this act pursuant to 14 Section 6 of Article XIII B of the California Constitution because 15 the only costs that may be incurred by a local agency or school 16 district under this act would result from a legislative mandate that 17 is within the scope of paragraph (7) of subdivision (b) of Section 18 3 of Article I of the California Constitution. 19 SEC. 4. The Legislature finds and declares that Sections I and 20 2 of this act, which amend Sections 6255 and 6259 of the 21 Government Code, respectively, further, within the meaning of 22 paragraph (7) of subdivision (b) of Section 3 of Article I of the 23 California Constitution, the purposes of that constitutional section 24 as it relates to the right of public access to the meetings of local 25 public bodies or the writings of local public officials and local 26 agencies. Pursuant to paragraph (7) of subdivision (b) of Section 27 3 of Article I of the California Constitution, the Legislature makes 28 the following findings: 29 By requiring local agencies to designate custodians of records 30 responsible for responding to requests and inquiries under the 31 California Public Records Act, this actfurthers the public's access 32 to public records. 31 97 C-5