SPJ/LA, journalism groups sign letter opposing AB 2153

March 11, 2024

The Honorable Josh Lowenthal Re: AB 2153 – as introduced 02/06/24

1021 O Street, Suite, Suite 5130 OPPOSE

Sacramento, California 95814

Dear Assemblymember Lowenthal:

We, the undersigned organizations, respectfully oppose Assembly Bill 2153. AB 2153 would require a public agency to notify an employee of a public records request pertaining to them or their work “promptly and prior to the release of records” to the requester. Because public records usually pertain to or at least mention a public employee, this requirement would apply to virtually all records requests. This bill undermines the public’s right of access to information about the public’s business and thus represents a direct affront to the California Public Records Act (“CPRA”).

Under the CPRA, records “containing information relating to the conduct of the public’s business prepared, owned, used or retained by any state or local agency” must be made “promptly available” upon receipt of a request.1 The California Constitution reinforces the Legislature’s long-held commitment to transparency. In 2004, voters overwhelmingly voted in favor of Proposition 59, which amended the Constitution to recognize that “[t]he people have the right of access to information concerning the conduct of the people’s business and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.” (Cal. Const. Art. I, § 3(b).)

Despite constitutional and statutory protection for the public’s right of access, too often Californians face numerous barriers to timely access to information. As organizations that advocate for and depend on access to public records to fulfill our missions, we consistently fight for, and in many cases are required to litigate on behalf of, the public’s right of access.2 While our organizations are diverse in our missions, we share the concern about the sweeping impact this bill will have on the flow of information to the public on a wide range of topics of crucial importance to Californians.

Existing law allows public agencies to notify an employee or a third party about a CPRA request. Requiring agencies to provide written notice to an employee prior to making records available to the requester, as AB 2153 would, will inevitably prolong the time it takes to receive public records, in violation of the CPRA. In addition, the notice mandate further shifts the balance of power from the requester to the public officials whose work is rightfully subject to public scrutiny. AB 2153 would serve as an invitation for public employees to improperly influence and even control what is good or not good for the public to know, which the CPRA expressly prohibits3 and encourage public employees to bring more “reverse-CPRA” lawsuits, in which a third party sues a public agency to preemptively prevent disclosure of public records to a requester.

Reverse-CPRA lawsuits mostly result in rulings that mandate the release of records, yet they create real problems for those seeking records by delaying disclosure, in many cases for years, and dragging requesters into court, forcing them to spend time and money to protect the public's right of access to the important records. Where the records are not confidential by law, permitting proponents of secrecy and public agencies to delay disclosure for years at a time not only defeats the CPRA's purpose of timely disclosure, but also encourages delay and coordination between agencies and third parties that want to avoid disclosure of the records.4 Given the harm to the public’s right to know, the Legislature should reject legislation that would encourage reverse-CPRA actions.

Take, for example, requests by the Los Angeles Times, local civil rights groups, and a grieving mother for the City of Pasadena to release a report written by the Office of Independent Review Group, examining the fatal shooting of 19-year-old Kendrec McDade by two officers of the Pasadena Police Department. Instead of making records “promptly available” to the newspaper and the family, as is required under the CPRA, the City notified the Pasadena Police Officers Association of the requests and explained to the union that it would need to take legal action before a certain date if it did not want the report released. The union, in turn, alongside the involved officers, sued the City to prevent the report’s release. It took more than three years, multiple court hearings, and thousands of dollars in attorneys’ fees after Kendrec McDade’s killing for his family to receive records that should have always been accessible to the public.5 Ultimately, the court concluded that the report was not exempt from disclosure under the CPRA and awarded the Los Angeles Times attorneys’ fees. The court noted, “It is unclear if the City’s purposeful delay was allowed under the PRA, which mandates that copies be provided promptly upon payment of fees covering direct cost of duplication or statutory fee, if applicable.

Similarly, when journalists have pursued public records to investigate misconduct in California schools, school staff have used notification to initiate meritless reverse-CPRA litigation to stall the release of information. A 2018 article in the Voice of San Diego, “Inside the Fight to Make Public School Misconduct Records Public,” details the news organization’s attempt to obtain records from every public school district in San Diego County involving substantiated instances of sexual misbehavior and misconduct by school staff over the course of ten years. The requests resulted in at least three reverse-CPRA actions, in which the subject of the responsive records dragged the school district into court to prevent disclosure.

An important and recent piece of investigative journalism, which unraveled 40 years of misconduct at a single California high school, would not have been possible if the staff whose conduct was being investigated had succeeded in his effort to prevent disclosure of misconduct records. According to documents made public by the journalist who wrote the article, the school district notified the teacher in question about a pending CPRA request, and then retained a lawyer who tried to persuade the district to withhold records from the public.

Unreasonable amounts of taxpayer dollars have been wasted on litigation with courts ultimately ruling that public records should have been released upon initial request. In 2019, a court ruled for the first time that agencies risk liability for attorneys’ fees under California's Private Attorneys General Act (Code Civ. Proc., § 1021.5) if the agency loses a lawsuit challenging the agency’s decision to withhold public records. In that case, City of Los Angeles v. Metropolitan Water Dist. of Southern California (2019) 42 Cal.App.5th 290, the public agencies paid nearly half a million dollars in attorneys’ fees after the unsuccessful attempt to stop the disclosure of public records. AB 2153’s notice requirement will only increase the number of reverse-CPRA lawsuits and, in turn, the litigation costs that will have to be borne by agencies to justify their withholding of records that should be released to the public.

* * *

Protecting the public’s access to public records is essential for a functioning democracy, as it allows the public to monitor the actions of public agencies. This bill fundamentally undermines the intentions of the California Public Records Act and the California Constitution that should allow any member of the public to request and receive public records without excessive delays or having to go through litigation. To protect the people’s right to know, we must respectfully oppose AB 2153.

Sincerely,

ACLU California Action

Black Lives Matter California

Buen Vecino

California News Publishers Association

Californians Aware

California Broadcasters Association

California United for a Responsible Budget

Cancel the Contract – Antelope Valley

Center on Juvenile and Criminal Justice (CJCJ)

Electronic Frontier Foundation

First Amendment Coalition

Howard Jarvis Taxpayers Association

Los Angeles Press Club

Media Alliance

Media Guild of the West, The News Guild-CWA Local 39213

NLGJA: The Association of LGBTQ+ Journalists, Los Angeles Chapter

Orange County Press Club

Radio Television Digital News Association

San Franciscans for Sunshine

Society of Professional Journalists, Los Angeles Chapter

Society of Professional Journalists, Northern California Chapter

Society of Professional Journalists, San Diego Pro Chapter

Stop LAPD Spying Coalition

Youth Law Center

cc: Members and Committee Staff, Assembly Committee on Judiciary