Assemblymember Blanca Pacheco, a Downey Democrat, says Assembly Bill 1821 is intended to protect local governments from frivolous or abusive records requests, including requests generated by artificial intelligence. But open-government advocates warn the measure would erode California’s Public Records Act and weaken the public’s ability to monitor city halls, school districts, county agencies and other public bodies across the state, including throughout Southern California and the Inland Empire.

The latest version of the bill would allow public agencies to delay certain requests, charge at least $88 per hour to search for and review records considered to be for “commercial use,” and take requesters to court if officials believe the request was made with “malicious intent.”

Pacheco first introduced a broader version of the proposal in March, when it drew criticism from transparency advocates and concern from some of her Assembly colleagues. She later narrowed the bill so it focused primarily on giving agencies more time to respond to records requests, a change that helped it pass the Assembly in May.

Now, many of the most controversial provisions have returned — and critics say the new language is even more restrictive than the original.

“Transparency is important to me,” Pacheco told CalMatters. “We just want it to run efficiently, and these are just minor amendments or minor tweaks to the Public Records Act.”

Local governments have long argued that large or repeated public records requests can overwhelm staff and drain time from other public services. Supporters of the bill, including the League of California Cities, say agencies need tools to deal with bad-faith requests and emerging uses of public records, including companies seeking large volumes of government emails or documents to build private products.

Donald Larkin, an attorney representing the League of California Cities, has pointed to a 2023 case in which someone sought Bay Area city officials’ emails to train an artificial intelligence service they intended to sell to local governments.

But First Amendment attorneys and open-government groups say California law already gives agencies the ability to push back against requests that are overly broad or unduly burdensome. They also argue that in practice, agencies sometimes delay or withhold records for months or years even under current law.

David Snyder, executive director of the First Amendment Coalition and a former journalist, said public access to government records is central to accountability.

“The only way that there’s any government accountability is that people know what the government is doing,” Snyder said. “This looks a lot like an effort to evade accountability.”

David Cuillier, a University of Florida journalism professor who serves on the federal Freedom of Information Act advisory committee, said the proposal would take California in the wrong direction.

The changes, he said, could “make California stand out as the most secretive state in the country.”

A key provision would allow agencies to sue people they believe are seeking records with “malicious intent.” If a court agreed, the requester could be required to pay $88 an hour to obtain the records.

Government agencies in other states have filed lawsuits against people they describe as vexatious requesters, though those cases have often been unsuccessful. Critics say California would be the first state to explicitly authorize agencies to sue over alleged malicious intent in public records requests.

Snyder said putting that authority into law would encourage agencies to fight requests rather than comply with them.

“It would be easily weaponized by agencies seeking to thwart transparency and accountability, as has already happened elsewhere in the country,” he said.

Shaila Nathu, a senior attorney with the ACLU of Northern California, said even the threat of litigation could discourage people from seeking public documents.

Pacheco said she does not expect cities to file lawsuits frequently, noting that agencies would have to go to court to recover a limited amount of fees. She described the provision as a safeguard for extreme cases.

“Hopefully this will curb the bad actors,” she said. “I don’t anticipate that this would slow down legitimate requests.”

The bill’s proposed fee structure has drawn some of the strongest objections. Under current law, public agencies generally may charge only the direct cost of copying records, often between 10 cents and 50 cents per page. The law also prohibits agencies from restricting access based on why someone wants the records.

AB 1821 would allow agencies to impose higher charges when they determine a request is meant to advance a “commercial, trade, or profit” interest. The bill would exempt certain requesters, including journalists, academics and government agencies.

For other members of the public, agencies could ask for information to determine the purpose of a request. Those who do not respond “promptly” could be treated as commercial requesters, though the bill does not define what qualifies as prompt.

Pacheco acknowledged that the determination could vary by situation.

“It’s so fact-specific that it’s kind of hard to say what’s reasonable, what’s prompt,” she said. “Most people will reply if a city asks, and then the city can then obtain the records for the individual.”

In an email to CalMatters, Pacheco spokesperson Alina Evans said the assemblymember does not want taxpayers to subsidize “the cost of building or improving a private company’s commercial product.” Evans also said Pacheco plans to amend the bill so it does not require every requester to explain the reason for seeking records.

Transparency advocates remain unconvinced. Snyder said the language would give agencies wide discretion to scrutinize requesters’ motives and potentially treat people differently depending on how officials view their purpose.

Those classified as commercial requesters could be charged $22 an hour in administrative fees and $66 an hour in professional fees for searching, reviewing and redacting records. Critics note that the California Supreme Court ruled in 2020 that similar charges can threaten the public’s right of access.

Cuillier called the proposed hourly rate “outrageous” and said it could place public records out of reach for many low-income Californians.

The bill also would change response deadlines depending on how a request is filed. Current law requires agencies to respond within 10 calendar days and allows an extension of up to 14 additional calendar days in certain circumstances. The law does not require requests to be submitted in a specific format, though many agencies use online portals.

Pacheco’s bill would change those deadlines to 10 and 14 business days, but only for requests submitted in person or by email during normal business hours. Requests submitted by fax, mail or through an online portal would not receive the same guaranteed timeline, according to critics.

The timing of the latest amendments has also angered open-government groups. Tracy Rosenberg, advocacy director for Oakland Privacy, said significant changes made after Assembly approval can lead to poorly vetted legislation. She described AB 1821 as “a virtual horror show of governmental non-transparency.”

Evans told CalMatters in March that the idea for the bill came from one of Pacheco’s trips sponsored by special interest groups. Pacheco reported receiving more than $45,000 in sponsored travel last year, the most of any California lawmaker, including a study tour in Spain, a golf tournament in Pebble Beach and a conference in Maui.

Asked recently which trip inspired the proposal, Pacheco said she did not remember and said the bill grew out of multiple conversations with local governments.

Evans said the latest amendments reflect discussions with the League of California Cities, the California State Association of Counties, the city of Downey, municipal clerks and several lawmakers on the Assembly Judiciary Committee. That committee previously approved a narrower version of the proposal.

For residents across California, the debate could affect one of the main tools used to scrutinize government spending, police practices, development decisions, school district operations and communications by elected officials. Open-records advocates say any new costs or legal risks could discourage ordinary residents from asking questions of their local agencies.

Pacheco and supporters argue the bill is meant to protect public resources from abuse. Opponents say it would give those same agencies too much power to decide who gets records, how quickly they get them and at what price.

Original source: CalMatters

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