SB 1002 would create a new, additional disclosure duty for public agencies to produce “electronic data” and “electronic records,” terms that are not defined either in existing law or the bill. SB 1002 would also impose a new mandate that public agencies post on their websites, and supply to requesters of public records “open format” electronic records, as defined in the bill, irrespective of the format in which agencies are currently posting documents on their website, and irrespective of the electronic format sought by a requester.
Perhaps worst of all, SB 1002 would for the first time incorporate into the Public Records Act (PRA) detailed format requirements for electronic records produced under the Act, impeding the ability of electronic communications technology, and agencies’ use of new technology, to continue to evolve, along with the public’s right of access to electronic government information.
SB 1002 would undermine agencies’ ability to respond to requests for public records, and to make information available on agency websites in an efficient and cost-effective way. SB 1002 would also impose new costs and potential liabilities on public agencies and discourage enhancement of government information management through use of new technologies. The PRA requires disclosure of non-exempt, existing public records, so the public can monitor the functioning of their government. It appears that the bill sponsors are more focused on imposing a new mandate requiring public agencies to create new data files and formats on request, to facilitate the creation of commercial, information-based products and services at public expense.
The author’s office indicates that SB 1002 is intended to require public agencies to make searchable electronic records more available to the public. However, PRA already requires public agencies to make available non-exempt electronic records, including searchable electronic records, on request, when the requested format is one in which the agency maintains the information (Cal. Gov’t Code §6253.9, subd. (a)).
To assist in clarifying public agencies’ obligation to produce non-exempt, searchable electronic records, the League has proposed amendments to SB 1002 that would define “searchable” as used in the bill. The League amendments would also clarify the authorization contained in the bill for agencies to convert electronic records not in a searchable form into a searchable form upon the requester’s payment of the conversion cost. The League strongly supports the open government purpose behind public agencies’ existing obligation to make publicly available searchable, non-exempt electronic records.
However, grafting a new, untested, open data standard onto the PRA is not necessary to promote government transparency through disclosure of searchable electronic records. It is clear from the text of the PRA itself, and the case law interpreting it, that it applies to every conceivable kind of record currently involved in the governmental process, as well as to any new form of record keeping developed in the future (Braun v. City of Taft (1984) 154 Cal.App. 3d 332).
That is why no amendments to the PRA were necessary to cover Twitter feeds, Facebook posts, or any of the other new electronic information media. Under current law, agencies’ ability to enhance government operations through use of new information technology, and the public’s right of access to government information are preserved. Adding format-specific information requirements to the PRA would create the need for statutory amendments any time information technology evolves in a way that can enhance government information management and that is not captured under the current definition. The PRA has withstood the test of time and can continue to do so. The one-size-fits-all data standard SB 1002 would impose would actually be a major step backward for government use of new information technology and public access.
If the Legislature believes that the time has come to explore open data standards for government information, a much broader discussion should occur involving state agencies, local government, and industry and government information technology experts. The open data standard that SB 1002 would impose, and its impacts on the operations of the myriad of affected government agencies, have not received adequate vetting.
SB 1002 should not be passed out of the Assembly Local Government Committee on June 27 unless it is amended with the League proposed amendments. Instead of advancing government transparency, it would create new uncertainty concerning agencies’ records disclosure duties, increase the cost of responding to records requests and posting information on agency websites, impede agencies’ ability to respond to records requests, and interfere with government use of new information technologies.
The League’s opposition letter is available on the League’s website by typing “SB 1002” in the search box.