SB 657 Bates (California Public Records Act: Reverse Public Records

Bill Summary: SB 657 (Bates) would authorize a court to require the public agency to pay court costs
and reasonable attorneys fees of the requestor, if the court finds that the public agency delayed
disclosure to facilitate the filing of a reverse public records action. SB 657 would also require, if the
court orders a public agency to disclose the records in a reverse public records action, the court to order
the person who initiated the reverse public records action to pay the court costs and reasonable
attorneys fees of the initial requestor.

Bill Description: According to the author, SB 657 seeks to level the playing field for requestors who are
enforcing their rights under the CPRAThe CPRA is an important statutory and constitutional part of our
system of open government. However, the system in which we adjudicate CPRA matters needs to be
updated to provide for the advent of Reverse CPRA cases. SB 657 adds to the Government Code
provisions to instruct the court how to adjudicate reverse public records actions. Specifically, SB 657:

Allows the court to find that a public agency delayed disclosure to assist the reverse records
action for nondisclosure and require the public agency to court costs and attorney fees.

Requires, if the court denies the reverse public records request of nondisclosure and requires
the public agency to disclose records, the court to order the party who requested nondisclosure
to pay court costs and attorney fees.

Requires the initial CPRA requestor to be a real party of interest in the proceedings and be
provided a copy of any pleading from the party who initiated the reverse public records action.

Requires the initiator of the reverse public records action to provide proof to the court that it
provided the initial requestor documentation of the pleading. A case cannot move forward until
this notice is complete.

Requires the court to allow the requestor to be heard before the court on the merits of the
reverse public records action.

Requires, if the court rules in favor of nondisclosure, to not order the requestor to pay court
costs and attorney fees to the public agency or the party who filed the reverse public records
action. In this scenario, the court, within 10 days, must release its justification for nondisclosure.

Background: The California Public Records Act (CPRA) requires state and local agencies to make public
records available for inspection, subject to certain exceptions. The CPRA provides specific exemptions
for certain types of public records, such as election information, pending litigation, personnel records,
and trade secrets. The Act also provides a public interest exemption (often referred to as the
catchall) which allows for nondisclosure where is clearly outweighs the public interest in disclosure.

What is a Reverse Public Records Action? A person who believes that his or her rights would be
infringed by an agency decision to disclose documents may bring a reverse PRA action to seek an
order preventing disclosure. SB 657 definition: Reverse public records action means a petition for
declaratory or injunctive relief filed by a third party that requests a court to enjoin a decision by a public
agency to disclose a public record in response to a request by a requestor.

Purpose of reverse public records actions: The courts have permitted persons, who believe their rights
may be infringed by an agency decision to disclose records, to bring a reverse PRA action to seek an
order preventing disclosure of the records. (Marken v. Santa Monica-Malibu Unified Sch. Dist. (2012)
202 Cal.App.4th 1250.) Reverse public records actions provide an avenue for those affected by potential
disclosure of public records to present reasons for nondisclosure. It is important to note that the CPRA
seeks to balance the fundamental right to privacy with the need for an accessible and transparent
government. Fiscal Impact: Unknown. No fees may be charged to the requester to reimburse local
agency costs to locate, review, or redact records or respond to request. It is reasonable to project that
this measure will 8 involve substantial costs to public agencies. In cases where the court rules a public
agency delayed disclosure to assist the filing of a reverse public records action, the public agency may
incur substantial costs from court order payments of court costs and attorney fees. Existing League
Policy: No existing policy.

Comments: Largely public agencies faithfully comply with the CPRA, which imposes narrow timelines for
response to public records requests without reimbursement. Local agencies shoulder tremendous staff
and cost pressure to fulfill the intent of the CPRA and provide appropriate disclosure of records. SB 657
(Bates) as drafted does not recognize the day-to-day operations involved in complying with the law.
While the CPRA provides specific categorical exemptions, local agencies are granted wide discretion
under the public interest exemption where many records request fall. Local agencies exercise informed
discretion in request for records which fall under this exemption and should not be punished for
appropriately weighing the public interest in disclosure and the rights to privacy as intended by law. It is
common practice for an agency that receives a request for records containing potentially confidential
information of employees or other third-party stakeholders, that the agency intends to disclose, to
notify the affected stakeholders prior to disclosing the records in case they want to seek court review or
file a reverse PRA action. Stakeholder notice may be particularly appropriate where it is not clear that
disclosure of the records is required. SB 657 punishes local agencies for doing its due diligence by finding
that it delays to assist a reverse PRA action and allowing the court to order the payment of court cost
and attorney fees. SB 657 raises cost and privacy concerns which may inappropriately discourage efforts
to protect sensitive information. As drafted, it is reasonable to conclude that the measure will serve as a
deterrent to public agencies, employees, and other parties to seek privacy where appropriate. The
measure discourages efforts to protect privacy by empowering the courts to require local agencies to
pay court costs and attorney fees where it finds that the agencies purposely delayed responding to
records request.

Support-Opposition: Support: N/A Opposition: N/A Staff Recommendation: Oppose Staff recommends
that the committee oppose this measure as it increases the costs and burden of local government
compliance with the CPRA, increases privacy related risks to public employees, may deter individuals
from filing legitimate reverse public records actions and establishes an unfair process for adjudicating
reverse public records actions.