BILL ANALYSIS                                                                                                                                                                                                    



                              SENATE JUDICIARY COMMITTEE
                         Senator Hannah-Beth Jackson, Chair
                             2015-2016  Regular  Session


          AB 169 (Maienschein)
          Version: June 18, 2015
          Hearing Date: June 30, 2015
          Fiscal: Yes
          Urgency: No
          TMW


                                        SUBJECT
                                           
                    Local government:  public records:  Internet

                                      DESCRIPTION  

          This bill would establish open format requirements for posting a  
          public record if a local agency, except a school district,  
          maintains an "open data" Internet Resource, including, but not  
          limited to, an Internet Web site, Internet Web page, or Internet  
          Web portal, and voluntarily posts the public record.

                                      BACKGROUND  

          The California Public Records Act (CPRA), enacted in 1968,  
          requires public disclosure of public agency documents.  The CPRA  
          gives every person the right to inspect and obtain copies of all  
          state and local government documents not exempt from disclosure.  
           (Gov. Code Sec. 6253.)  In recognition of the increased  
          reliance by public agencies on electronic documents, the  
          Legislature enacted AB 2799 (Shelley, Chapter 982, Statutes of  
          2000), which, among other things, required public agencies, upon  
          request, to disclose electronic records in an electronic format  
          in which the agency held information or in a format that had  
          been used by the agency to create copies for its own use or for  
          other public agencies.  

          Since 2000, computer technology has advanced to provide open  
          format software whereby electronic documents created and  
          maintained by public agencies can be searched, indexed, and  
          redacted electronically.  In 2009, in order to increase  
          government agency accountability, promote informed public  
          participation, and create economic opportunity through expanding  
          access to information online in open formats, the United States  
          Director of the Office of Management and Budget issued an Open  
          Government Directive to federal government agencies.  (Peter R.  







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          Orszag, Director, Executive Office of the President, Office of  
          Management and Budget, Memorandum for the Heads of Executive  
          Departments and Agencies, Open Government Directive, Dec. 8,  
          2009, p. 2.)  This Directive provided guidelines to public  
          agencies responding to public requests under the Freedom of  
          Information Act and instructed federal government agencies to  
          "publish information online in an open format that can be  
          retrieved, downloaded, indexed, and searched by commonly used  
          web search applications."  (Id.)
          In 2013, President Obama signed Executive Order No. 13642, which  
          established the Open Data Policy and required all newly  
          generated government data to be made available in open,  
          machine-readable formats in order to "promote continued job  
          growth, Government efficiency, and the social good that can be  
          gained from opening Government data to the public."  (Exec.  
          Order No. 13642, 78 Fed.Reg. 28111 (May 9, 2013).)

          This bill seeks to further the purpose of those orders by  
          requiring local agencies, other than school districts, to post  
          public records in an open format.

                                CHANGES TO EXISTING LAW
           
           Existing law  , the California Constitution, declares the people's  
          right to transparency in government.  ("The people have the  
          right of access to information concerning the conduct of the  
          people's business, and therefore, the meetings of public bodies  
          and the writings of public officials and agencies shall be open  
          to public scrutiny....")  (Cal. Const., art. I, Sec. 3.)

           Existing law  , the California Public Records Act (CPRA), governs  
          the disclosure of information collected and maintained by public  
          agencies.  (Gov. Code Sec. 6250 et seq.)  Generally, all public  
          records are accessible to the public upon request, unless the  
          record requested is exempt from public disclosure.  (Gov. Code  
          Sec. 6254.)  There are 30 general categories of documents or  
          information that are exempt from disclosure, essentially due to  
          the character of the information, and unless it is shown that  
          the public's interest in disclosure outweighs the public's  
          interest in non-disclosure of the information, the exempt  
          information may be withheld by the public agency with custody of  
          the information.

           Existing law  provides that public records are open to inspection  








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          at all times during the office hours of the state or local  
          agency and every person has a right to inspect any public  
          record, except as specified.  Any reasonably segregable portion  
          of a record shall be available for inspection by any person  
          requesting the record after deletion of the portions that are  
          exempted by law.  (Gov. Code Sec. 6253(a).)

           Existing law  requires a public agency to make non-exempt  
          electronic public records available in any electronic format in  
          which it holds the information or, if requested, in an  
          electronic format used by the agency to create copies for its  
          own or other agency's use.  (Gov. Code Sec. 6253.9(a)(1).)

           Existing law  authorizes a public agency to charge to the  
          requestor the direct cost of producing the electronic public  
          record.  (Gov. Code Sec. 6253.9(a)(2).)

           Existing law  requires the requestor of the electronic public  
          record to pay the cost of producing a copy of the record,  
          including the cost to construct the record, and the cost of  
          programming and computer services necessary to produce a copy of  
          the record if the public agency produces the electronic record  
          only at regularly scheduled intervals or the request requires  
          data compilation, extraction, or programming to produce the  
          electronic record.  (Gov. Code Sec. 6253.9(b).)

           Existing law  provides that a public agency is not required to  
          release an electronic record in the electronic form in which it  
          is held by the agency if its release would jeopardize or  
          compromise the security or integrity of the original record or  
          of any proprietary software in which it is maintained.  (Gov.  
          Code Sec. 6253.9(f).)

           Existing law  defines "local agency" to include a county; city,  
          whether general law or chartered; city and county; school  
          district; municipal corporation; district; political  
          subdivision; or any board, commission or agency thereof; other  
          local public agency; or entities that are legislative bodies of  
          a local agency.  (Gov. Code Sec. 6252(a).)

           This bill  , if a local agency, except a school district,  
          maintains an Internet Resource, including, but not limited to,  
          an Internet Web site, Internet Web page, or Internet Web portal,  
          which the local agency describes or titles as "open data," and  








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          the local agency voluntarily posts a public record on that  
          Internet Resource, would require the local agency to post the  
          public record in an open format that meets all of the following  
          requirements:
           retrievable, downloadable, indexable, and electronically  
            searchable by commonly used Internet search applications;
           platform independent and machine readable;
           available to the public free of charge and without any  
            restriction that would impede the reuse or redistribution of  
            the public record; and
           retains the data definitions and structure present when the  
            data was compiled, if applicable.

           This bill  would make various related legislative findings and  
          declarations.

                                        COMMENT
           
          1.  Stated need for the bill  
          
          The author writes:
          
            Key information maintained by local governments, from business  
            licenses to council agendas and budgets, are frequently kept  
            in file formats that make them difficult to find or analyze  
            using contemporary internet tools and other technology.  The  
            current guidelines for posting these documents predate the  
            Xerox machine and thus are inadequate in the modern era.

            The concept of "Open Data" describes data that are freely  
            available, machine-readable, and formatted according to  
            national technical standards to facilitate visibility and  
            re-use of published data.  This concept of open data allows  
            access to standardized data that can be easily retrieved,  
            downloaded, sorted, searched, analyzed, redistributed and  
            re-used by individuals, business, researchers, journalists,  
            developers, and government to process, trend, and innovate  
            utilizing a single data table or combinations of data tables.

          2.  Electronic information to be provided in open data format  

          Existing law, the California Public Records Act (CPRA), requires  
          a public agency to make non-exempt electronic public records  
          available in any electronic format in which it holds the  








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          information or, if requested, in an electronic format used by  
          the agency to create copies for its own or other agency's use.   
          (Gov. Code Sec. 6253.9(a)(1).)  This bill would require a local  
          agency, except a school district, that voluntarily posts a  
          public record to the agency's "open data" Internet Resource to  
          post the public record in an open format, as specified.

          The San Diego Regional Data Library, in support, argues that  
          "[t]oo many agencies discharge their obligations under the  
          [CPRA] or local open data mandates by releasing data in formats  
          that are difficult to use.  Occasionally[,] the goal of  
          releasing in closed formats is to obscure the data, but more  
          often it is a combination of a lack of understanding of how data  
          is used combined with organizational inertia.  Regardless of the  
          motivation, the result is that the data release[d] serves the  
          letter of the law but not the spirit of transparency."

          Notably, the federal government has already instructed federal  
          agencies to provide public access to electronic agency  
          information in an open format.  In an effort to increase  
          government agency accountability and promote informed public  
          participation, the United States Director of the Office of  
          Management and Budget issued an Open Government Directive  
          (Directive) to federal public agencies responding to public  
          requests under the Freedom of Information Act to "publish  
          information online in an open format that can be retrieved,  
          downloaded, indexed, and searched by commonly used web search  
          applications."  (Peter R. Orszag, Director, Executive Office of  
          the President, Office of Management and Budget, Memorandum for  
          the Heads of Executive Departments and Agencies, Open Government  
          Directive, Dec. 8, 2009, p. 2.)  The Directive defines "open  
          format" to mean "one that is platform independent, machine  
          readable, and made available to the public without restrictions  
          that would impede the re-use of that information."  

          To that end, if a local agency maintains an Internet resource  
          described by the local agency as "open data," this bill would  
          require the local agency to post any voluntarily posted public  
          records in an open format that meets all of the following  
          requirements:
           retrievable, downloadable, indexable, and electronically  
            searchable by commonly used Internet search applications;
           platform independent and machine readable;
           available to the public free of charge and without any  








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            restriction that would impede the reuse or redistribution of  
            the public record; and
           retains the data definitions and structure present when the  
            data was compiled, if applicable.

          The Sunlight Foundation, in support, notes the elements listed  
          above are broadly recognized to be the core of what it means to  
          make data open.  As such, the Sunlight Foundation argues, this  
          bill "supports the public provision of good-quality, usable data  
          through ensuring that whatever contextual information was  
          originally available with the data remains present in its  
          public-facing publication."  

          The California Forward Action Fund (CFAF), also in support,  
          states that "[u]nderstanding that transparency can foster  
          accountability, fuel entrepreneurship and improve government  
          performance, more and more local governments in California are  
          embracing transparency by making previously inaccessible  
          government data available online for public scrutiny and use.   
          But the publication of data alone doesn't inherently make them  
          useful.  Although local agencies are releasing more data than  
          ever before, a lot is lying fallow because they're often in an  
          unsearchable file format, such as PDF, making the information  
          difficult to find and analyze."

          Staff notes that this bill would work in conjunction with  
          existing law that protects the integrity of original public  
          documents being electronically disclosed.  Specifically,  
          existing law provides that an agency is not required to release  
          an electronic record in the electronic form in which it is held  
          by the agency if its release would jeopardize or compromise the  
          security or integrity of the original record.  (Gov. Code Sec.  
          6253.9(h).)  Staff notes that this bill would not require a  
          local agency to convert into an open format data or records  
          received from other agencies or sources and does not require a  
          public agency to update its software or hardware to comply with  
          requirements in the bill.  Rather, the bill would require a  
          local agency, except a school district, that voluntarily posts a  
          public record on its Internet Web site or other Internet  
          resource to post the public record in an open format.  As noted  
          by the CFAF, "by requiring that public records published online  
          by local agencies be in a format that is searchable,  
          downloadable and machine-readable and available to the public  
          free of charge, this bill can help local governments unlock the  








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          power of open data to improve results, reduce costs, and rebuild  
          trust."

          3.  Opposition's concerns  

          The Madera County Board of Supervisors, in opposition, raises  
          concerns that the bill does not adequately define the provisions  
          describing the open format requirement so that local agencies  
          are not out of compliance with this bill for lack of  
          understanding these terms.


           Support  :  Associated Builders and Contractors of California;  
          Building Owners and Managers Association of California;  
          California Building Industry Association; California Business  
          Properties Association; California Business Roundtable;  
          California Forward Action Fund; California League of Food  
          Processors; California Manufacturing & Technology Association;  
          California Taxpayers Association; Commercial Real Estate  
          Development Association, NAIOP of California; Family Business  
          Association; International Council of Shopping Centers; Los  
          Angeles County Business Federation; National Federation of  
          Independent Business; San Diego Regional Data Library; Sunlight  
          Foundation

           Opposition :  Madera County Board of Supervisors

                                       HISTORY
           
           Source  :  Author

           Related Pending Legislation  :

          SB 573 (Pan, 2015), among other things, would create the  
          statewide open data portal, as defined, to provide public access  
          to data sets from agencies within the state.  The bill would  
          require any data published on the statewide open data portal or  
          other open data portal operated by an agency to comply with all  
          state and federal privacy laws and regulations, and make the  
          statewide open data portal available, at no cost, to local  
          agencies interested in using the statewide open data portal to  
          publish its own data.  SB 573 is currently in the Assembly Rules  
          Committee awaiting committee referral.









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          SB 272 (Hertzberg, 2015) would require each local agency to  
          create a catalog of enterprise systems, as defined, post that  
          catalog on the local agency's Internet Web site, and make the  
          catalog publicly available upon request in the office of the  
          clerk of the agency's legislative body.  SB 272 is currently in  
          the Assembly Judiciary Committee.

          AB 1215 (Ting, 2015), among other things, would enact the  
          California Open Data Act and require state agencies to make  
          public data, as defined, available on an Internet Web portal and  
          authorize a local government to adopt that standard.  AB 1215  
          would require each state agency, on or before July 1, 2016, to  
          submit a strategic plan and a strategic enterprise application  
          plan, as specified, to the Chief Data Officer and to post the  
          reports on the Internet Web portal. AB 1215 would also require  
          specified legal policies for public data to be posted on the  
          Internet Web portal.  AB 1215 is currently under submission in  
          the Assembly Appropriations Committee.

           Prior Legislation  :

          SB 1002 (Yee, 2012) would have enacted the California Open Data  
          Standard and required a state or local agency to make electronic  
          data or an electronic document available to the public in an  
          open format, as defined.  That provision was subsequently  
          removed to instead require the State Chief Information Officer  
          to conduct a study to determine the feasibility of providing  
          electronic records in an open format.  SB 1002 was vetoed by  
          Governor Brown because he believed that another legislative  
          report on electronic public records was unnecessary.

          AB 2799 (Shelley, Chapter 982, Statutes of 2000) See Background.

           Prior Vote  :

          Assembly Floor (Ayes 77, Noes 0)
          Assembly Appropriations Committee (Ayes 17, Noes 0)
          Assembly Local Government Committee (Ayes 9, Noes 0)

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