Fighting for transparency: PCL on the California Public Records Act

Several weeks ago, PCL abruptly shifted gears and focused much of our energy on something that hadn’t even previously been on our radar screen.  Yet, although the task switch was sudden, the issue was fully in line with the work that PCL does every day.  This issue was the California Public Records Act, and it fits into a bigger picture of transparency, accountability, and public input into decision-making.

As is now old news, a small provision had been added into a budget trailer bill that would have made compliance with the California Public Records Act optional for local governments and agencies.  The California Public Records Act is the transparency law that allows the public to request records on anything from expenditures, to licensing, to environmental reviews, from our public servants; it’s been around since 1968 and has been used for everything from busting corrupt local government dealings to enforcing mitigation measures designed to protect the environment and public health.  It is ironic and fitting that it this transparency law was slipped into another bill so opaquely.

To be clear, PCL does not believe this affront found its way into a budget trailer bill because of any nefarious plan to blindfold the public.  But the law’s requirement that local agencies comply with requests entitles local agencies to reimbursement from the state.  By making local agency compliance voluntary, instead of mandatory, this would alleviate the obligation on the state to cover the costs.  In this frenzy of budget-balancing that trade-off must have looked appealing.  The official line was that most local agencies would still comply with public records requests, and indeed some might have, but that’s not a reassuring promise when there’s no longer a means to enforce this against cash-strapped local agencies that might rather choose not to use their limited resources to air their dirty laundry.

The timeline and location of the assault are both cliché and illustrative.  This particular provision was tucked into a 120-page budget trailer bill on June 12 and sent to the Governor’s desk on June 14.  PCL heard about it on June 18, from a member in Southern California; it started majorly breaking in the newspapers on June 19.  And alas, this part of the budget trailer bill was not eligible for a line-item veto, because there wasn’t an appropriation item connected to this provision (yet, even though no money was to be spent on this item, it was part of a budget bill).  By June 20, due to the rising tide of outrage from everyone from gun ownership groups, to all the major news outlets in the state, to a contingent of environmental organizations, our elected officials were forced to respond.  The Assembly took up their own version of the budget trailer bill to remove the offending provision, and the Senate and Governor followed suit shortly thereafter.  Public outrage saved our right to access records related to the public’s business – this time.

While the turnaround was fairly quick in this particular battle, it wasn’t easy.  I was in the middle of working on a number of critical bills, as well as planning public education events, when I answered a phone call on June 18 from Sabrina Venskus, a long-time PCL supporter and environmental attorney who had been paying better attention than us.  For two days I pushed all that other work aside so I could alert our environmental allies, reach out to other non-profits and good governance organizations, send calls for action through social media, meet with a number of sympathetic legislators’ offices to offer our support, stay in constant contact with the Governor’s office, and draft an opposition letter and action alerts.  There is no doubt that numerous other non-profits, good governance organizations, and individuals were also reprioritizing and scrambling to act.  PCL’s nimble structure contributed to our ability to respond immediately, and our conviction in the importance of transparency made it so there was no hesitation in doing so.

Why, we have been asked, was an environmental non-profit so concerned about a good governance bill?  PCL is better known for its work on the California Environmental Quality Act (CEQA) than its work in governance issues, but CEQA is so powerful because it is a good governance law as much as it is an environmental one.  CEQA, like its federal counterpart the National Environmental Policy Act (NEPA), mandates that development be given serious scrutiny and opened up for public input.  When done correctly, it ultimately matters more that the concerns of the public are heard and addressed than that the resulting project is the greenest it could possibly be.  (Frankly, that kind of paternalistic oversight that would dictate what is green without addressing the concerns of the people who are part of that environment isn’t too appealing to us at PCL anyways.)  Unlike the “standards approach” that has been proposed by some business interests, CEQA is sensitive to the specific needs of a community and is able shape projects according to those needs and concerns.  CEQA is not just a good governance bill in its own right; its efficacy depends on other good governance practices, including the California Public Records Act.  Without guaranteed access to public records, the public would not be able to get the permitting history, correspondence on official decisions, or environmental assessments that we need to examine projects for compliance with CEQA.  We would have a process with none of the substance we needed to make it matter.

So how, if everyone from gun owners to greenies were alarmed by this provision, could we almost lose the Public Records Act?  And, more importantly, how do we ensure nothing like this happens again?

California law allows, and the political climate sometimes promotes, last minute changes to bills without notice to the public.  This so-called “gut-and-amend” reached fever pitch at the end of the last legislative session, when a bill that had previously been about management of a fishery suddenly became a bill to gut CEQA; SB 317 (Rubio) was introduced in the last days of the legislative session and was never put into print (if you look it up today, it is still a fishery management bill).  Many interests have used gut-and-amend at some point; even environmentalists have won battles by pushing language through at the last minute.  Yet it works better for groups with more money and more inside connections, and the rest of us are left playing Whack-a-Mole, plastic hammers at the ready to smash down the next unpredictable appearance.

Earlier this year, before PCL weighed in on the California Public Records Act debacle, we signed on in support of two constitutional amendments, SCA 10 (Wolk) and ACA 4 (Olsen).  These bi-partisan bills proposed that any bill language needed to be in print and available online 3 days before they were passed; a truly modest proposal, but 3 days more time than the public is currently guaranteed.  Unfortunately, these bills floundered in their first houses, but PCL remains supportive and hopeful that we will see reform of this nature sometime in the near future.  Until then, we will continue scouring the horizon for those little furry moleheads.  And if you, like Sabrina, see one before we do, please pick up the phone and call us.


Click here to view an article on the whole event from the L.A. Times.

To view PCL’s group opposition letter, click here.

The California Supreme Court upheld an important part of the Public Records Act on Monday in a case brought by the Sierra Club.


Abigail Okrent is PCL’s Legislative Director.  She has a long history of agitating for public involvement in decision-making and creating last-minute action alerts.