Proposed State Ballot Measure Would Make Sweeping Changes to Public Records Act

Posted by Melanie Moore on

On August 2, 2023, Consumer Watchdog, a nonprofit organization focusing on consumer advocacy, submitted a proposed November 2024 ballot measure to the California Attorney General that would, among other amendments, make numerous changes to the California Public Records Act (CPRA). According to news reports, Consumer Watchdog has budgeted $5 million to support the qualification of the measure for the fall 2024 ballot.

Entitled the “Government Transparency Act,” the proposed measure would make sweeping changes to the CPRA provisions that apply to both state and local agencies. The text of the measure is available on the Attorney General’s Active Measures webpage.

THE PROPOSED MEASURE WOULD HAVE SIGNIFICANT IMPACTS ON LOCAL AGENCIES

The proposal would make several changes to state and local agencies’ obligations under the CPRA.  Among other provisions, local agencies would be required to:

  • Provide a specific factual showing in a written justification for the withholding and redaction of records;
  • Disclose the search terms and search parameters used by the agency and permit the requester to request the use of other search terms;
  • Require all records to be produced within 30 calendar days, unless the agency provides a declaration, under penalty of perjury, that explicit circumstances exist that prevent the production of documents within 30 days;
  • Require regular website posting of government records, such as contracts (with no dollar threshold), court documents whether the agency is a party or participant, and budget and cost estimates of proposed legislation;
  • Retain all public records for at least five years;
  • Upon request, provide a detailed description of how the agency conducted its public records search and a general description of the withheld and redacted records by subject matter;
  • Within 30 days of the service of a legal complaint, provide a document-by-document “privilege log” of every record withheld or redacted;
  • Apply CPRA requirements to their vendors working with public agencies;
  • Change procedures for lawsuits brought under the Public Records Act;
  • Prohibit a public agency from relying on legal basis for withholding a record in a legal action if the public agency did not rely on that basis initially; and
  • Issue a comprehensive annual report regarding public records requests.

In addition, the proposed law would:

  • Limit the application of the deliberative process and attorney-client privilege; and
  • Prohibit reliance on the official information privilege to withhold a document. 

QUALIFICATION OF THE PROPOSED MEASURE FOR THE NOVEMBER 2024 BALLOT

Until September 1, 2023, any member of the public may submit written comments on the proposal through the Attorney General’s Active Measures webpage. The State Department of Finance and the Legislative Analyst must also prepare an estimate of the costs to state and local government within 50 days. Within 15 days after receipt of the fiscal estimate, the Attorney General must provide a copy of the title and summary to the proponent. Proponents then have 180 days to collect the required number of signatures—currently, proponents must secure 546,651 signatures for initiative statutes such as the Government Transparency Act.

For more information on this measure or other matters relating to government advice, please contact Amy Ackerman or Andrew Shen.