California Legislators Want To Make It More Difficult For Records Requesters To Get Documents From The Government

from the mandated-chain-yanking dept

The California legislature handed the public a win by making police misconduct records obtainable through records requests. The transparency very few law enforcement agencies are welcoming is still being litigated, but going forward it seems clear cops will no longer be able to hide their misconduct behind a wall of government-enabled opacity.

I guess California legislators believe some sort of transparency equilibrium must be maintained. They’ve introduced a bill that will make it more difficult for requesters to obtain documents. (via Dave Maass) The bill amends the state’s public records law to create another hoop for requesters to jump through before they can get a hold of documents the law says are rightfully theirs.

Here’s the key amendment:

Before instituting any proceeding for injunctive or declarative relief or writ of mandate in any court or competent jurisdiction, the person shall meet and confer in good faith with the agency in an attempt to informally resolve each issue. The person or their attorney shall file a declaration stating that this meet and confer process has occurred at the time that proceedings are instituted.

This may seem like a minimal imposition, but it really isn’t. Only a small percentage of public records requesters live close to the agencies they’re seeking to obtain documents from. Even if they are nearby, the law allows agencies to set the agenda. Agencies take as long as they want to set up a meeting, pushing rejected requests past the law’s upper limits for responses.

Even if agencies allow these conferences to happen by phone, requesters are still at the mercy of agencies that are in no hurry to return responses. This is just another way for agencies to stonewall requesters in hopes of deterring them from following through on their requests.

The litigation option is being delayed for no discernible purpose. Few things motivate recalcitrant government agencies like lawsuits. This is a gift to uncooperative agencies, presented as a common sense solution to the costs of litigation. Sure, in a perfect world, these discussions could head off pricey lawsuits. But the world we actually live in requires litigation a great deal of the time because few government agencies are truly responsive to records requesters.

And it’s all going to end up in court anyway. The court will now have to rule first on whether a good faith effort was made prior to the filing, which will result in more expenses incurred by both parties as they attempt to persuade a judge an attempt was or wasn’t made by one party. There’s nothing in the law that punishes agencies for screwing around with requesters and no time limit is placed on the mandated meetings.

Hopefully, this new requirement will never make its way into law. If it does, it should be challenged immediately on the grounds that it violates rights guaranteed by the state. If state legislators are truly concerned about the ever-escalating cost of public records litigation, they should focus their time and energy cracking down on agencies with track records of unresponsiveness, rather than just make it more difficult to force records out of these agencies’ hands.

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Comments on “California Legislators Want To Make It More Difficult For Records Requesters To Get Documents From The Government”

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22 Comments
Bluehillssays:

Not that onerous.

California law requires meeting and conferring in good faith in a lot of areas. Face to face meetings are not required, and a declaration establishing the opposing side has refused, whether outright or unreasonable delay in responding, is generally sufficient. Usually a couple of calls over the course of a week would be sufficient. Such calls are often far more efficient in resolving disputes than you would think. The line between records subject to mandatory disclosure and those that are not can be quite unclear at times, and a conversation is more likely to lead to resolution of the dispute than an exchange of letters.

Anonymoussays:

Re: Not that onerous.

The line between records subject to mandatory disclosure and those that are not can be quite unclear at times, and a conversation is more likely to lead to resolution of the dispute than an exchange of letters.

If this were actually true, then the government agencies would be the ones initiating the phone call, and they would be doing it long before any lawsuit could be brought under the existing laws. If they do not, then that would mean the agencies are knowingly,deliberately, and systematically wasting money (which, if true, would suggest that the California legislature has a full on bureaucratic revolt on its hands and shouldn’t be wasting time on this piece of crap).

So whatever assumption you make, this law should never have been proposed.

Bluehillssays:

Re: Re: Not that onerous.

Under California law a requester can file suit at any time. The public agency is already required to initiate contact and confer with the requester in many cases. Frankly, I think the meet and confer requirement is unlikely to have much impact. I just said it isn?t particularly onerous. People should be more concerned with the proposed additions as to the findings required to prevail in the legal action.

Anonymoussays:

Re: Not that onerous.

True, if people know this. (I’ve both done "meet & confers" and PRA requests.) However, most of the time the meet & confer process is a local rule under the control and interpretation of a local judge, who can toss the local rule if they feel like it (if the agency was being obstreperous, for example).

My question is: What problem does this solve?

Bluehillssays:

Re: Re: Not that onerous.

It could have some impact on those attorneys whose business model is to submit requests and quickly file suit for the fees. It is not as big an issue here as in some areas, but it does happen. It can also give you something to show people representing themselves to get past their suspicion that you are calling to put something over on them and actually have a conversation about the issues raised.

Bluehillssays:

Re: Re: Not that onerous.

Given existing California law, a reasonable attempt to meet and confer would be what is required. In other settings, I typically send a letter laying out my issues or send a draft of the complaint or motion, proposing a time to talk on the phone and asking the opposing party to let me know if another time would be convenient. I call at the proposed time, leaving a message if necessary. I call again 1 or 2 days later and again leave a message if necessary. Then I file if I don?t hear from them. I have never had a judge even suggest that effort might be deficient.

Anonymoussays:

Lawsuits are expensive. If public records requestors thought they could get agencies to act with a simple phone call or visit, why wouldn’t they already do that?

California legislators aren’t giving their constituents a lot of credit, since it’s pretty obvious why they’re doing this when you take a minute to think about it

Bluehillssays:

Re:

Suspicion and the availability of attorneys fees can both drive unnecessary litigation. Many people are reluctant to pick up a phone to try to resolve a dispute. That is one of the big changes in legal practice over the last 35 years. In my experience written communications seem more likely to harden people?s positions, while conversations are more likely to result in resolution.

That One Guysays:

There's a reason those laws exist

Before instituting any proceeding for injunctive or declarative relief or writ of mandate in any court or competent jurisdiction, the person shall meet and confer in good faith with the agency in an attempt to informally resolve each issue. The person or their attorney shall file a declaration stating that this meet and confer process has occurred at the time that proceedings are instituted.

I’m pretty sure the fact that the person is trying to sue the agency to force them to cough up the requested documents would be ample evidence that ‘an informal attempt to resolve each issue’ isn’t going to cut it, such that this will instead allow agencies to string people along even longer before they end up in court.

FOIA laws weren’t added to the books on a whim, they were added specifically to address stonewalling and refusal to engage ‘in good faith’ on the side of the government agencies, and as multiple examples have shown often the only way to pry records out of those agency’s hands is through a lawsuit, as nothing less will work.

Anonymoussays:

Re:

This is terrible! It’s almost as bad as when that religious cult was trying to sabotage the big trade deals, and wound up with information about where thousands of privately-owned drones were being stored while waiting to be sold. And then they completely destroyed countless numbers of those drones, smashed them all to worthless pieces! It’s a good thing that the government dealt with them properly. Imagine the danger we’d all be in if the Senate hadn’t passed Order 66.

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