A state bill making its way through the legislature could make it harder and more expensive for residents to access public documents from the government — potentially allowing government agencies to charge taxpayers $88 per hour to locate and provide certain public records or sending them to court.
AB 1821, authored by Assemblymember Blanca Pacheco, outlines drastic changes to the state’s Public Records Act — making it easier for agencies to delay responding to public records requests and charge taxpayers hundreds or thousands of dollars for certain documents.
It also gives agencies an option to sue requesters if they suspect the request is “malicious.”
David Snyder, executive director of the First Amendment Coalition, said the proposed changes would create a massive chilling effect for Californians asking for records that they have a right to request.
“This really will make it significantly more difficult and expensive for many Californians to obtain records from local and state agencies, and the malicious intent provisions, which allow the government to sue requesters for the simple act of requesting public records, I think will have a significant chilling effect and will prevent requests from being submitted,” Snyder said in a Monday phone interview.
“It makes it much easier for government agencies to evade accountability. It’s just the wrong move at the wrong time in our country’s history.”
Pacheco’s office did not respond to multiple emailed requests for comment from Voice of OC.
The assemblywoman told reporters from CalMatters that the bill is meant to prevent frivolous records requests from overwhelming local governments, especially requests generated by artificial intelligence.
Pacheco also called the proposed changes to the state public records law “minor amendments or minor tweaks” and said transparency is important to her.
Her office also told CalMatters that the hourly fee would be capped at $66 an hour.
California’s Public Records Act law was enacted in 1968 and protects the public’s access to public documents and records held by government agencies. Under the law, agencies must provide an initial response to public records requests within 10 days.
Pacheco’s bill is now largely opposed by government transparency advocates, journalism organizations and nonprofits who argue the bill is an attack on the state’s Public Records Act and the California constitution in a letter sent to California State Senator Tom Umberg and the rest of the Senate Judiciary Committee, which is set to review the bill at its June 30 hearing.
“These are major shifts in how transparency works in California, undermining a core civil right voters overwhelmingly voted to enshrine in the state constitution,” reads the letter, dated June 23. “Open government is not a procedural preference; it is the foundation that allows Californians to understand, participate in, and hold accountable the government that acts in their name.”
“Given the late introduction of these sweeping amendments, the proponents’ acknowledgement the provisions are a work in progress, and the acute real-world consequences of the bill’s provisions, we urge the committee to reject the bill. The stakes are too high.”
The letter is signed by representatives for 19 organizations, including the First Amendment Coalition, the ACLU California Action, the Society of Professional Journalists, the Orange County Press Club and the Howard Jarvis Taxpayers Association.
The seven-page letter argues that AB 1821 would price people out of asking for public records and creates unnecessary hoops to jump through when making requests.
The letter also criticizes how the bill would allow agencies “to drag a records requester into court for the mere act of making a request.”
“Transparency is the lifeblood of accountability in government. Accountability is how the people know what the government is doing, evaluate whether it is serving the public, and keep it on course,” reads the letter.
“AB 1821 gives all local, regional and state government entities license to interrogate people about the purpose of their requests for government information, impose fees that will run into tens of thousands of dollars for a broad swath of requesters, use taxpayer resources to sue requesters, slow walk the initial determination people are entitled to, and unnecessarily restrict of methods of submission.”
State Lawmakers Look to Charge Taxpayers For Certain Requests
Searching for and handing over documents for public inspection are usually provided at no cost under the Public Records Act. While some agencies may charge for photocopies or specialized requests, costs are typically minimal.
That could change under the proposal from Pacheco, who represents a small portion of North Orange County, including La Habra, and a southern swath of Los Angeles County in the state assembly.
AB 1821, which passed on the assembly floor in late May and sent to the senate, outlines new exceptions, timelines and costs for certain public records requests.
Agencies can charge up to $88 per hour if they determine a request for records is a “commercial use request,” according to the bill’s current text.
Those charges include administrative and professional fees — both of which could be increased by a cost-of-living adjustment.
“Commercial use” is defined in the bill to refer to someone who is requesting information that “furthers the commercial, trade, or profit interests of the requester.”
The draft bill outlines that agencies would be able to ask people what their requested documents will be used for in order to determine if it’s a commercial use, an action currently prohibited by state law.
If requesters don’t respond to that question fast enough, they can be charged $88 per hour to get their request fulfilled.
“In determining whether a requester properly belongs in this category, the agency may ask the requester to provide information regarding the use to which a requester will put the documents requested,” reads the draft bill. “If the requester does not promptly provide this information, the agency may infer that the records have been requested for commercial use.”
Can Requesting Records Land You in Court?
If signed into law by the Governor, the bill would give agencies the ability to sue members of the public if they suspect the request contains “malicious intent.”
If the state superior court rules that the request is malicious, then agencies can charge $88 per hour for the search, according to the bill’s current text.
“Malicious intent” is not defined in the bill.
“Somebody can be hauled into court simply for asking for public records,” Snyder said. “That really substantially shifts the burden on the California Public Records Act, which properly places the burden on government agencies to produce records because the records are presumed to be owned by the people of California, which they are.”
Snyder notes that approach creates a substantial barrier — putting a chilling effect on the Public Records Act.
“It would force ordinary people to either hire lawyers or give up,” he said.
AB 1821 would also change the Public Records Act to require residents to submit their requests following certain guidelines from the specific agency they’re requesting from.
Currently, the state law says that people can request records in any way they’d like: email, letter, over the phone, etc. Requesters do not have to bend their request to match a certain format.
The proposed bill would allow agencies to require that people submit their requests in a specific format. If requesters don’t comply, agencies don’t need to respond.
AB 1821 would also extend the timeline for agencies to send over their initial response to requests from 10 calendar days to 10 business days.
Last-Minute Changes
The bill didn’t always include all these provisions.
The most recent version of the bill, amended on June 10, includes the “malicious intent” and “commercial use” changes to the Public Records Act, but those weren’t present in the previous version voted on by the state assembly.
The bill passed on the assembly floor in a 55-12 vote on May 27 and was subsequently sent to the state senate before getting updated by Pacheco two weeks later.
It was originally introduced in February.
“It sat there for months, and then these really seismic changes to the California Public Records Act dropped in publicly available amendments just last week,” Snyder said. “This is really a last-minute effort to fundamentally change the California Public Records Act, and really, the government’s relationship with the people of California.”
The bill outlines exceptions for journalists, government agencies and educational institutions.
In the bill, a “representative of the news media” is defined as a person who gathers and reports information and disseminates it to the public “for a substantial portion of the person’s livelihood or for substantial financial gain.”
What’s Next?
The bill is still making its way through the legislature and is currently being reviewed by the state’s Senate Judiciary Committee, chaired by Umberg.
“A democracy can’t function if it’s not accountable to the people,” Snyder said. “The government can’t be accountable to the people if the people don’t know what the government is doing. The California Public Records Act is the primary vehicle by which journalists and others learn things that the government is doing that the government may not want to tell you about.”
“These are massive changes that overturn decades of court decisions.”
Angelina Hicks is the Voice of OC Collegiate News Service Editor. Contact her at ahicks@voiceofoc.org or on Twitter @angelinahicks13.
