The California Public Records Act and The Future of Journalism in California

By Michael Reiter, Attorney at Law

I attended and graduated from Santa Clara University School of Law.  The School of Law is part of Santa Clara University, which opened in 1851.  It claims to be the oldest operating institution of higher learning in California.  That beats the College of California, the predecessor to the University of California, Berkeley, where I earned my A.B.  Anyway, I receive two alumni magazines from the school .  In the Spring 2011 edition of Santa Clara Magazine, the alumni magazine for the University as a whole, I found an interesting series of articles about the future of journalism in the United States.  I have a personal interest it, because of my family in the industry.  Among the articles is one titled: “Journalism: Broadsheets and Spreadsheets” by Jack Gillum, a database editor at USA Today.  It discusses the use of statistical analysis in analyzing public records for investigative journalism.

The California Public Records Act is an important tool for journalists in California.  In Mr. Gillum’s article, he discusses public records acts requests because of proprietary databases.  In California, a public agency can extend the time to respond from ten days to an additional 14 days in unusual circumstances, such when there is the “need to compile data, to write programming language or a computer program, or to construct a computer report to extract data.”  California Government Code section 6253(c)(4).  Duplication of electronic records are limited to  ” the direct cost of producing a copy of a record in an electronic format.”  California Government Code section 6253.9(a)(2).

However, a requester does have to pay for “the cost of producing a copy of the record, including the cost to construct a record, and the cost of programming and computer services necessary to produce a copy of the record when either of the following applies: (1) In order to comply with the provisions of subdivision (a), the
public agency would be required to produce a copy of an electronic record and the record is one that is produced only at otherwise regularly scheduled intervals. (2) The request would require data compilation, extraction, or programming to produce the record.  California Government Code section 6253.9(b)(1), (2).

The problem encountered by Mr. Gillum in other states may have been based on a provision similar to this one in the California Public Records Act:  “Nothing in this section shall be construed to require the public agency to release an electronic record in the electronic form in which it is held by the agency if its release would jeopardize or compromise the security or integrity of the original record or of any proprietary software in which it is maintained.  California Government Code section 6253.9(f).   Part of the Legislative History of AB 2799 (2000) explains the reasoning behind subsection F: ” An agency would not be required to release an electronic record in electronic form if its release would
jeopardize or compromise the security or integrity of the original record or of any proprietary software in which it is maintained.  This limitation was added to the bill in order to
alleviate concerns that electronic records, though  created with taxpayer money, may have been produced using  software designed specifically for the agency. This bill
would give the agency the flexibility to refuse to  release a requested record in electronic format, if such a release would mean that the software would also have to
be released. Even without the software problem, though, an electronic record containing the data may be deciphered and the software program reconstructed (see below).

The agency also may refuse to provide the information in electronic format if the electronic record, when transmitted or provided to a requester, could be altered
and then retransmitted, thus rendering the original record vulnerable.

These two concerns were registered by opponents of SB  1065 last year. Thus, AB 2799 includes a provision that gives the public agency the option not to provide the
information if disclosing it would jeopardize the integrity or security of the system.”  California Senate Floor Analysis, Pages 4-5, August 19, 2000.   As of today, I have not seen a reported court decision analyzing California Government Code section 6253.9.

Anyway, the article in Santa Clara Magazine is interesting, and I recommend reading it.  When I was Assistant City Attorney in the City of Redlands I assisted journalists with their California Public Records Act requests.  Today, as an attorney in private practice, I help journalists  with their California Public Records Acts requests.  In today’s fiscal environment, journalists do not have the same access to attorneys as when newspapers had more revenue, so it is important to help local journalists in fulfilling their mission of investigatory journalism.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog.  You should consult an attorney for advice regarding your individual situation.


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