Government Watchdog Warns California Bill Would Let Agencies Sue Records Requesters

The First Amendment Coalition is a nonprofit organization that advocates for free speech, government transparency, and public access to government records and meetings throughout California. The following letter, written by FAC Executive Director David Snyder, addresses proposed changes to the California Public Records Act under Assembly Bill 1821. RHBB is republishing it with permission.

[To Whom It May Concern:]

In April, I wrote to you about why I testified against California Assembly Bill 1821, which at the time was a bad bill, bad for government transparency, for accountability, and for our democracy.

I’m following up today because, with just a few weeks left for this bill to be heard in its final policy committee, AB 1821 has suddenly gotten much, much worse. For the good of local democracy in California, this bill should not even be heard in the Senate Judiciary Committee, where it now sits, much less by the full Senate.

It’s no overstatement to say that the newly amended AB 1821 poses a direct attack on government transparency in California. It would make obtaining government records cost more, in some cases much more. It would allow government agencies to take even longer than they do now to respond to requests. It would allow agencies to deem requests as “not properly requested” and therefore not subject to the deadlines for a response under the CPRA, if they aren’t submitted by means that the agency determines are appropriate.

Perhaps worst of all, it would allow government agencies to sue members of the public if the agency deems their request to be made with “malicious intent.” This provision alone makes AB 1821 a non-starter. It would be easily weaponized by agencies seeking to thwart transparency and accountability, as has already happened elsewhere in the country.

For decades, California law has been clear that state and local agencies cannot sue records requesters. The reasons for this are plain: if you thought you could be hauled into court for simply asking for records under the California Public Records Act, wouldn’t you think twice?

This ability of the government to sue would place an intolerable chill on the public exercising its right, as our state constitution puts it, “to access information concerning the conduct of the people’s business.” As the California Supreme Court said over 20 years ago, “such a result would be at war with the very purpose of the CPRA.”

At a time when government transparency matters more than it has in our lifetimes, this bill allows state and local governments to throw up roadblocks to the most basic of our civil rights as Americans and Californians, for without the right to understand “what our government is up to,” as U.S. Supreme Court Justice William O. Douglas put it in a 1973 case, none of our other civil rights are secure. Indeed, Douglas noted, quoting a noted historian, without the right to know, “no democracy can function.”

California state government officials have taken a lead nationally in decrying abuses of power, including serious failures of government transparency, at the federal level. The Legislature should reject this effort to hamstring transparency and accountability in its own back yard.

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 that AB 1821 represents.

If you agree, call the Senate Judiciary Committee today and urge the members to vote no on AB 1821.

Thank you for taking action to protect access to public records.

David Snyder
Executive Director
First Amendment Coalition