Transparency advocates are enraged over a sneaky change to a California bill that would make it harder to get details on what government agencies are doing — and could even haul people seeking public records to court.
News publishers and other First Amendment supporters had already opposed Assembly Bill 1821 by Assemblymember Blanca Pacheco (D), which initially just sought to extend the timeline for when government entities, such as city halls or state agencies, needed to respond to a request for public records.
But Pacheco adjusted her measure so that steep fees can be charged for the time staff spends to find publicly available records: an administrative fee of $22.35 per hour and a “professional fee” of $66.26 per hour, both subject to cost-of-living increases.
Not only that, under the newest version of the bill, if a government believes the record requester has “malicious intent,” it can ask a court to make that determination and put the request on hold pending a court decision.
The pro-free speech nonprofit First Amendment Coalition blasted the new language and claimed obtaining government records would cost much more. Currently, agencies may generally only charge for copying costs.
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But the “malicious intent” provision that allows the government to take someone to court is particularly dangerous, claimed David Snyder, the coalition’s executive director.
“It would be easily weaponized by agencies seeking to thwart transparency and accountability, as has already happened elsewhere in the country,” he said. “For decades, California law has been clear that state and local agencies cannot sue records requesters.”
A spokesperson for Pacheco told The Post that the bill is designed to help small government entities like city and county governments — who support the legislation — handle unreasonable records requests.
For example, counties have pointed to a case in late 2021 in early 2022 in which a requester sought records between El Dorado County and four email domains over a five year period. That resulted in more than 42,000 potential records, but the county could not get the requester to narrow his or her request even after going to court.
“The malicious-intent provision is intended to address the rare circumstances in which the Public Records Act is being used to disrupt agency operations, harass staff, or consume disproportionate public resources without a corresponding public benefit,” Pacheco’s office said.
The legislator described the court determination process as a “safeguard” and said the bill “does not authorize punitive damages, penalties, or damages actions against requesters.”
Supporters also note the bill’s fees mainly targets commercial requesters — those making records requests for a company such as a data broker to make profit — and not those in education or the news media.
Graham Knaus, CEO of the California State Association of Counties, insisted to The Post that going to the court for “malicious intent” determinations will only be used for very rare cases. It’s about leaving it to an impartial court — not the government agency itself — to be the adjudicator, he added.
Artificial intelligence has made it extremely easy to draft records requests, and unreasonable requests can force huge costs that ultimately hurt the public, he said.
“We believe that taxpayers should not be forced to bear the cost of an AI business model for those that are attempting to overwhelm the ability of local governments to provide services to our residents,” he said.
Still, the measure can put a “chill” on general access to government information, Snyder said, and does not make California Democrats who have attacked President Donald Trump for non-transparency look great.
“The fundamentals of democracy are being tested now in America. It is exactly the wrong time for California to take the serious backward step toward unaccountability,” he said.
Lawmakers have until end of August to send bills to the governor. Pacheco’s bill passed the Assembly and is currently making its way through the state Senate.
