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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Filed Under: california, public records, transparency

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  1. icon
    Bluehills (profile), 6 Mar 2019 @ 4:09pm

    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.

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