Watching out for the future of California’s public records

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A vote next month in California could impact the future of public records, open meetings, and even open data across all levels of government there.

California voters will have a chance on June 3 to vote on Proposition 42. A “yes” to the proposal would amend the state’s Constitution to require local governments to comply with the state’s public records and open meetings laws. It would also shift the mandate of paying for local public records from the state to the local governments.

Proposition 42 seems poised to pass at this point. Many media outlets in California have come out in favor of the proposal. They’re not alone. The California Newspaper Publishers Association, California Republican Party, and California Democratic Party are other groups in favor, to name a few. There is broad agreement that Proposition 42 would provide support for crucial access to information about how government works.

If it seems odd that these things are up for a vote, it’s because the principles of providing access to local public records and open meetings in California have been in a precarious position lately.

Last year, the state legislature considered allowing local governments to “opt out” of parts of the California Public Records Act.

The reasoning behind that legislation? The state thought it could cut costs from its budget by letting local governments choose what parts of the public records law to follow. The state has to reimburse local governments for mandated compliance with state laws, a result of a voter-approved initiative from the 1970’s, so legislators saw an opportunity to save the state money by making access to information optional.

Local leaders fought back by pledging to continue to comply with all parts of the California Public Records Act. They sent a clear message: access to public records is a fundamental right. It’s not something that should be left to the whims of politicians responding to budget woes.

Eventually, the legislature and Governor corrected their course, approving a budget bill that kept compliance with the California Public Records Act mandatory for local governments.

The remaining financial concerns prompted Proposition 42, which keeps compliance mandatory but shifts the responsibility for related costs to local governments.

It’s a similar story for how the state’s open meetings law ended up on the ballot in Proposition 42. In 2012, the California legislature suspended a mandate that local governments comply with the state’s open meetings law, the Brown Act. The law required local governments to post agendas for public meetings and share outcomes from closed-door meetings, among other things. Since the Brown Act was a mandate on local governments from the state, the costs of complying with the act were considered costs that the state should reimburse. Once again, California’s cities came through with a commitment to transparency, saying they would continue to comply with the Brown Act despite the suspension of the mandate. Later that year, voters approved an amendment that eliminated the state’s responsibility to make reimbursements for Brown Act compliance.

Proposition 42 would enshrine the right to basic access about government proceedings in California’s Constitution and address the lingering issue of who should be responsible for the costs of providing local public records.

Just how much money is even at stake has been a source of debate, however. California’s Legislative Analyst’s Office says the approval of Proposition 42 could save the state “tens of millions” and cost local governments the same amount.

The state has never paid a reimbursement to local governments for providing public records, however. Guidelines on what kinds of costs would qualify are under ongoing consideration by a state commission. As long as the state can’t come to a decision on what costs even qualify for reimbursement, it’s been off the hook for paying out anything.

That means local governments have been handling costs on their own all along, anyway. The costs the state wanted to “cut” last year by making compliance with the California Public Records Act optional were estimated owed costs, not definite payments ready to be made.

If Proposition 42 passes, local governments will be faced with determining, for the long run, what costs to absorb and what to pass on to requesters of public records. This comes at a time when there’s evidence that municipalities are increasing the costs they’re charging those who ask for public records.

The California Association of Clerks and Election Officials and the League of California Cities have expressed concerns about the cost implications of Proposition 42 but taken no official action against the proposal.

We hope that if Proposition 42 passes local governments in California will take seriously the mandate to provide access to public records (and open meetings). The responses so far to threats to transparency have been encouraging. If local governments have continued to comply with the public records and open meetings laws despite not being required to do so at times, we are hopeful that commitment to open government will continue.

The approval of Proposition 42 could even open the door to other developments for open government.

The state would be free to make updates to the California Public Records Act and local governments would have to comply, according to the state’s Constitution. This is already raising the question of whether the state could start to mandate that local governments provide open data.

It’s an intriguing idea. California already has half-a-dozen municipalities with open data policies on the books. There are clear benefits to everyone when government provides open data. There are steps any municipality can take to start work on a policy that best fits local context and community needs for open data.

If the state starts to mandate these kinds of steps, it should also be aware of the need to ensure sufficient funding for the success of open data policies. The transition to proactive release of public information can involve costs such as new software, training, or even new staff. It would be a shame to see the promise of open data soured by the sense that taking steps in the direction of openness is a costly burden. At the same time, a balance must be struck so that the future of local open data in California does not rest on the state’s financial support, which recent events have shown to be uncertain.

It remains to be seen how open data might become part of California’s strengthened access laws. What does seem certain for now is that the state stands to gain a peace of mind from the passage of Proposition 42. Enshrining the rights to access public records and open meetings in the state’s Constitution should help buffer these principles from future budget concerns or politically-motivated agendas. Then, the state and local governments can start to build the future of access on that solid foundation.