California Senate Bill SB1442 Latest Draft

 BILL NUMBER: SB 1442INTRODUCED BILL TEXT INTRODUCED BY Senator Walters FEBRUARY 24, 2012 An act to amend Sections 9072, 9073, 9074, 9075, 9077, and 9080 of, to add Section 9081 to, and to repeal Section 9079 of, the Government Code, relating to legislative records. LEGISLATIVE COUNSEL'S DIGEST SB 1442, as introduced, Walters. Legislative Open Records Act. The Legislative Open Records Act (LORA) requires that a legislative record, as defined, be open to public inspection unless the record is exempt from disclosure under the act. This bill would amend LORA to broaden the records subject to disclosure by making the following changes, among others: (a) Include as a legislative record a writing that contains information relating to the conduct of the public's business prepared, owned, used, retained, or subject to control by a consultant of the Legislature. (b) Remove the exemption under LORA that allows the Legislature to withhold a record if on the facts of the particular case the public interest served by not making the record public clearly outweighs the public interest served by disclosure of the record. (c) Replace the exemption under LORA for preliminary drafts, notes, and legislative memorandum with an exemption for intralegislative memoranda containing the author's recommendations or opinions, if the public interest in withholding the record is manifestly greater than the public interest in disclosure. (d) Remove the exemption under LORA for correspondence of and to individual Members of the Legislature and their staff. (e) Remove the exemption under LORA for records maintained or in the custody of the Legislative Counsel. (f) Remove the exemption under LORA for records maintained or in the custody of the majority and minority caucuses, and the majority and minority consultants, of each house of the Legislature. (g) Replace the exemption under LORA for records of complaints to or investigations conducted by, or records of security procedures of, the Legislature with an exemption for records the disclosure of which reasonably could be expected to pose a substantial security risk to the Legislature. The bill would require a record subject to disclosure to be provided as an electronic file, whenever possible, at the option of the requester. The bill would require certain information relating to legislative expenditures and meetings and appointments of Members of the Legislature to be produced and published by the Legislature on a monthly basis. The bill would repeal a provision of LORA authorizing the court to award costs and attorney's fees to the Legislature if a clearly frivolous suit is brought against the Legislature pursuant to LORA. The bill would prohibit the Legislature from selling, exchanging, furnishing, or otherwise providing a legislative record subject to disclosure to a private entity in a manner that prevents the Legislature or any state agency from disclosing the record directly. Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 9072 of the Government Code is amended to read: 9072. As used in this article: (a) "Person" includes any natural person, corporation, partnership, limited liability company, firm, or association. (b) "Legislature" includes any Member of the Legislature, any legislative officer, any standing, joint, or select committee or subcommittee of the Senate and Assembly, and any other agency  or   ,  employee  , or consultant  of the Legislature. (c) "Legislative records" means any writing prepared on or after December 2, 1974,  which   that  contains information relating to the conduct of the public's business prepared, owned, used,  or  retained  , or subject to control  by the Legislature. (d) "Writing" means  any  handwriting, typewriting, printing,  photostating,  photographing,  photocopying, electronic mail, facsimile, text message,  and every other means of recording  upon   on any tangible thing  any form of communication or representation, including letters, words, pictures, sounds,  or  symbols, or  combination   combinations  thereof,  and all papers, maps, magnetic or paper tapes, photographic films and prints, magnetic or punched cards, discs, drums, and other documents   regardless of the manner in which the record has been stored . SEC. 2. Section 9073 of the Government Code is amended to read: 9073.  (a)    Legislative records are open to inspection at all times during the normal office hours of the Legislature and any person has a right to inspect any legislative record, except as hereafter provided. Any person shall be furnished reasonable opportunities for inspection of legislative records and reasonable facilities for making memoranda or abstracts therefrom. Any person may receive a copy of a legislative record if  such   the  record is of a nature permitting  such  copying.  At the option of the person requesting the legislative record, the record shall be provided, whenever possible, as an electronic file, in which case no fee may be charged to the requester.  The Legislature may establish fees  , not to exceed ten cents ($0.10) per page,  reasonably calculated to reimburse it for its actual cost in making  such  paper  copies available  , provided such fee shall not exceed ten cents ($0.10) per page  .  Reimbursable costs for this purpose do not include costs for finding and retrieving requested records, assessing the applicabi   lity of an exemption, or redacting exempt information.   (b) The following shall be produced and published by the Legislature, without request, on a monthly basis, in a manner providing the public ready and free access by means of the Internet:   (1) Records and information sufficient to show, for each Member of the Legislature, the date, time, location, participants, and subject matter of all appointments and meetings of the Member relating to government matters during the preceding month.   (2) Records and information sufficient to show, both in the aggregate and by separate expense type, the costs incurred by each Member's office, by each committee or subcommittee, and by each of the caucuses, during the preceding month.   (3) Records and information sufficient to show, for the office of each Member of the Legislature and for each committee and subcommittee, the compensation paid to all employees and consultants during the preceding month, both in the aggregate and by recipient.   (4) Records or information sufficient to show all transfers or reassignments of employees and consultants of the Legislature during the preceding month.   (5) Records or information sufficient to show, for each Member's office and for each committee and subcommittee of the Legislature, all expenses for, or related to, travel and the names of the persons for which the expenses are claimed during the preceding month.  SEC. 3. Section 9074 of the Government Code is amended to read: 9074.  (a)    All requests to inspect any legislative record shall be made to the appropriate Rules Committee of each house of the Legislature or the Joint Rules Committee , except that all requests to inspect any legislative record in the possession of the Auditor General shall be made to the Joint Legislative Audit Committee  .  Such   Those  committees shall be considered to have custody of all legislative records and shall be responsible for making all legislative records available for inspection.  Such   Those  committees shall promptly inform any person whether any legislative record shall be made available for inspection.  Such   The  legislative records shall be made available for inspection promptly and without unnecessary delay. Whenever  such   a  committee withholds any legislative record from inspection, within four working days of the request to inspect  such   a  record, the committee shall justify in writing the withholding of  such   a  record by demonstrating that the record in question is exempt under the express provisions of this article  or that on the facts of the particular case the public interest served by not making the record public clearly outweighs the public interest served by disclosure of the record  , provided that when the Legislature is not in session,  such     the  committee shall furnish  such  written justification within 10 working days of the request to inspect  such   the  record. The Rules Committee of each house  ,   and  the Joint Rules Committee  , and the Joint Legislative Audit Committee  shall adopt written guidelines stating the procedures to be followed when making legislative records available for inspection.  The   (b) If a legislative record contains information that is exempt from disclosure and the exempt portions may reasonably be segregated, the Legislature shall allow inspection and copying of the record after redaction of the portions that are exempt from disclosure.   (c)     The  amendment of this section made at the 1981-82 Regular Session of the Legislature does not constitute a change in, but is declaratory of, the existing law. SEC. 4. Section 9075 of the Government Code is amended to read: 9075. Nothing in this article shall be construed to invalidate or affect the operation of  Sections   Section  10207  ,   or  10208  , 10525, and 10526 of this code  , or Temporary Joint Rule 37 of the Senate and Assembly in effect on the effective date of this article, or to require the disclosure of records that are any of the following: (a)  Preliminary drafts, notes, or legislative   Intralegislative  memoranda  containing the author's recommendations or opinions, if the public interest in withholding the record is manifestly greater than the public interest in disclosure  , except as provided in Section 9080. (b) Records pertaining to  , and created in connection with,  pending litigation to which the Legislature is a party, or to claims made pursuant to Division 3.6 (commencing with Section 810) of Title 1, until the litigation or claim has been finally adjudicated or otherwise settled. (c) Personnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy  , provided that the Senate Committee on Rules, the Assembly Committee on Rules, or the Joint Rules Committee shall determine whether disclosure of these records constitutes an unwarranted invasion of personal privacy  . (d)  Records pertaining to the names and phone   Telephone  numbers of senders and recipients of telephone  and telegraph  communications, provided that records  of   showing other information pertaining to the communication, including  the total charges for  any such   the  communication  ,  shall be open for inspection.  (e) Records pertaining to the name and location of recipients of automotive fuel or lubricants expenditures, provided that records of the total charges for those expenditures shall be open for inspection.   (f) In the custody of or maintained by the Legislative Counsel, except those records in the public data base maintained by the Legislative Counsel that are described in Section 10248. Legislative records shall not be transferred to the custody of the Legislative Counsel to evade the disclosure provisions of this chapter.   (g) In the custody of or maintained by the majority and minority caucuses and majority and minority consultants of each house of the Legislature, provided that legislative records shall not be transferred to the custody of the majority and minority caucuses and majority and minority consultants of each house of the Legislature to evade the disclosure provisions of this chapter.   (h) Correspondence of and to individual Members of the Legislature and their staff, except as provided in Section 9080.   (i)   (e)  Records the disclosure of which is exempted or prohibited pursuant to provisions of federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege.  However, the Legislature, as a deliberative body whose deliberations are conducted in public, is not subject to the deliberative process privilege applicable to the Governor pursuant to the decision of the California Supreme Court, interpreting the California Public Records Act (Ch. 3.5 (commencing with Section 6250) Div. 7, Title 1), in Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325.   (j) Communications   (f)     Confidential communications  from  private citizens   a constituent  to  his or her representative Member of  the Legislature, except as provided in Section 9080.  (k) Records of complaints to or investigations conducted by, or records of security procedures of, the Legislature.   (g) Records the disclosure of which reasonably could be expected to pose a substantial security risk to the Legislature.  SEC. 5. Section 9077 of the Government Code is amended to read: 9077.  (a)    Whenever it is made to appear by verified petition to the superior court of the county where the records or some part thereof are situated that certain legislative records are being improperly withheld from a member of the public, the court shall order the committee charged with withholding the records to disclose the legislative record or show cause why the committee should not do so. The court shall decide the case after  having the option of  examining the record in camera, if permitted by subdivision (b) of Section 915 of the Evidence Code, papers filed by the parties  ,  and such oral argument and additional evidence as the court may allow.  If   (b)     If  the court finds that the committee's decision to refuse disclosure is not justified under the provisions of Section 9074 or 9075,  he   the judge  shall order the committee to make the record available for inspection. If the judge determines that the committee was justified in refusing to make the record available for inspection, he  or she  shall return the item to the committee without disclosing its content with an order supporting the decision refusing disclosure. Any person who fails to obey the order of the court shall be cited to show cause why he  or she  is not in contempt of court. SEC. 6. Section 9079 of the Government Code is repealed.  9079. If the court finds that the plaintiff's case is clearly frivolous, it shall award court costs and reasonable attorney fees to the public agency.  SEC. 7. Section 9080 of the Government Code is amended to read: 9080. (a) The Legislature finds and declares that legislative records relating to bills, resolutions, or proposed constitutional amendments before the Legislature provide evidence of legislative intent that may be important in the subsequent interpretation of laws enacted in the Legislature. The Rules Committee of each house of the Legislature and the Joint Rules Committee shall inform each committee of the Senate and Assembly, and each joint committee of the Legislature, of their responsibility to preserve legislative records and make them available to the public. (b) Each committee of the Senate or Assembly, and each joint committee of the Legislature, having custody of legislative records relating to a bill, resolution, or proposed constitutional amendment assigned to that committee, shall maintain the legislative records described in subdivision (d) in an official committee file. The committee shall preserve those records in its custody, or, in the alternative, may arrange with the State Archives to lodge some or all of the records there under the condition that the records be preserved. (c) "Committee" for purposes of this section includes any entity of the Senate or Assembly responsible for preparing analyses of bills, resolutions, or proposed constitutional amendments that are to be put to a vote by a quorum of the members of the Senate or Assembly. (d) "Legislative records," for purposes of this section, means records contained in an official committee file, including, but not limited to, all of the following: (1) Committee staff analyses. (2) Written testimony. (3) Background material submitted to the committee. (4) Press releases. (5) Written commentary submitted to the committee on a bill, resolution, or proposed constitutional amendment. For purposes of this paragraph, "written commentary" does not include  the following:   (A)     Material   material  not utilized by the staff of a fiscal committee in the preparation of any analysis for the members of that committee.  (B) Communications determined by the committee or its staff to be confidential.  (6) Versions of bills, resolutions, or proposed constitutional amendments assigned to the committee. (7) Relevant interim hearing materials, studies, case materials, and articles. (e) Legislative records contained in an official committee file shall be open to inspection and copying by the public, pursuant to Sections 9073 and 9074. Each committee of the Senate or Assembly, and each joint committee of the Legislature, shall adopt and implement written procedures consistent with Sections 9073 and 9074 for the public's access to official committee files maintained in the committee's office. The procedures shall provide for the time, place, and other conditions under which committee files may be inspected and copied. Each committee shall make copies of its written procedures available to the public. (f) The Rules Committee of each house of the Legislature or, alternatively, the Joint Rules Committee shall provide for the storage of any official committee file that is not maintained in the office of the committee that created the file or lodged with the State Archives. The Rules Committees of each house of the Legislature or the Joint Rules Committee, as the case may be, shall adopt and implement written procedures consistent with Section 9073 for the public's access to official committee files so stored in its custody. The procedures shall provide for the time, place, and other conditions under which committee files may be inspected and copied, and the committee shall make copies of its written procedures available to the public. (g) Nothing in this section requires making any legislative record available for inspection that relates to any unchaptered bill, resolution, or proposed constitutional amendment introduced in the current legislative session, except in accordance with the requirements and limitations specified in Sections 9073, 9074, and 9075. SEC. 8. Section 9081 is added to the Government Code, to read: 9081. The Legislature shall not sell, exchange, furnish, or otherwise provide a legislative record subject to disclosure pursuant to this article to a private entity in a manner that prevents the Legislature or any state agency from disclosing the record directly pursuant to this article. The Legislature shall not allow a private entity to control the disclosure of information that is otherwise subject to disclosure pursuant to this article.