While the bill has been represented as a simple transparency measure, as written the bill actually creates a new, additional disclosure duty for public agencies to produce “electronic data” and “electronic records” and would impose a new mandate that public agencies post on their websites and supply to requesters of public records “open format” electronic records.
The League strongly supports the intent of the author to clarify the obligation of state and local agencies to make available non-exempt, searchable electronic public records. The League has proposed amendments to SB 1002 to help provide such clarification. However, the bill would complicate the process of making available electronic public records in ways that are difficult to precisely assess. This is because the bill is internally contradictory, and introduces new, undefined terms.
SB 1002 is internally contradictory because some provisions require agencies to disclose and post on their websites electronic records in a new, open format, so long as they have the means to do so (and regardless of whether the records are currently in that format). Such provisions would require agencies to convert electronic data, essentially creating new records, and incur the cost of doing so. Other provisions provide that nothing in the bill requires agencies to convert data or documents into an open format or to upgrade agency software or hardware. Which of these contradictory provisions govern?
The League would be glad to participate in a stakeholder dialogue on development of open format data standards that could enhance transparency of government information as well as the effectiveness of government. Such a dialogue should include state, local government, and industry officials and information technology experts. To date this conversation has not happened.
There is no urgency that requires that state and local governments be saddled with a new and unworkable open data standard right now that would impact all electronic records requests and all electronic records that must be posted on agency websites. State and local agencies are already required under the law to disclose existing searchable, non-exempt electronic records.
In the meantime, until a workable open data standard is developed, information technology and government applications of new technology can continue to develop and evolve, and the public’s right to access government information maintained using new technology will be protected. This is because the PRA is intended to apply to every conceivable kind of record that is involved in the governmental process, and pertains to any new form of record keeping instrument as it is developed. Braun v. City of Taft (1984) 154 Cal.App. 3d 332. Incorporation of any format specific requirements into the PRA should be approached with care, to avoid any impediments to further evolution of government information technology use or public access to new government information technology.
City officials are encouraged to send opposition letters immediately. The League’s opposition letter and are sample letter are available on the League’s website by typing “SB 1002” into the search box.