BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 1520|
|Office of Senate Floor Analyses | |
|(916) 651-1520 Fax: (916) | |
|327-4478 | |
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THIRD READING
Bill No: AB 1520
Author: Mark Stone D, Chau (D), Chiu (D), Cristina Garcia (D),
and Holden (D)
Amended: 8/4/16 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE: 5-2, 6/14/16
AYES: Jackson, Hertzberg, Leno, Monning, Wieckowski
NOES: Moorlach, Anderson
SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8
ASSEMBLY FLOOR: 53-21, 4/16/15 - See last page for vote
SUBJECT: Public Records
SOURCE: Author
DIGEST: This bill clarifies that the exemption from public
disclosure, under the California Public Records Act, for
specified personal information does not apply to industrial,
commercial, and institutional water use data.
Senate Floor Amendments of 8/4/16 strike the word "residential"
from the bill and instead creates an exception to the exemption
for industrial, commercial, and institutional water use data.
ANALYSIS:
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Existing law:
1)Declares, pursuant to the California Constitution, the
people's right to transparency in government. (Cal. Const.,
Art. I, Sec. 3.)
2)Governs the public disclosure of information collected and
maintained by public agencies pursuant to the California
Public Records Act (CPRA) (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. (Gov. Code Sec. 6254 et seq.)
3)Defines state agency, for purposes of the CPRA, to include
every state office, department, division, bureau, board, and
commission or other state body or agency, except for the
Legislature and the Judiciary. (Gov. Code Sec. 6252.)
4)Exempts from public disclosure records that are the residence
address of any person contained in the Department of Housing
and Community Development, if the person has requested
confidentiality of that information, as specified, and the
residence or mailing address of any person in any record of
the Department of Motor Vehicles. (Gov. Code Sec. 6254.1.)
5)Exempts from public disclosure the name, credit history,
utility usage data, home address, and telephone number of
utility customers of local agencies, except that disclosure of
name, utility usage data, and the home address of utility
customers of local agencies shall be made available upon
request, as specified. (Gov. Code Sec. 6254.16.)
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6)Exempts from public disclosure corporate financial records and
corporate proprietary information, including trade secrets
(Gov. Code Secs. 6254, 6254(k), 6254.15, 6276.44), employee
personal information (Gov. Code Secs. 6254(c), 6254.3,
6276.34, 6276.36), and information affecting public safety or
security (Gov. Code Secs. 6253.9, 6254(aa), (ab), 6254.19,
6254.23).
7)Provides that information held by the California Public
Utilities Commission (CPUC), which is deemed confidential
under Public Utilities Code Section 583, is not required to be
disclosed. (Gov. Code Secs. 6276, 6276.36.)
8)Provides that any person may institute proceedings for
injunctive or declarative relief or writ of mandate in any
court of competent jurisdiction to enforce his or her right to
inspect or to receive a copy of any public record or class of
public records, and authorizes an award of court costs and
reasonable attorney fees to the plaintiff should the plaintiff
prevail in litigation, and those costs and fees are required
to be paid by the public agency, as specified (Gov. Code Secs.
6258, 6259(d)). The test for determining whether a record may
be withheld from public access is whether the public's
interest in disclosure is outweighed by the public's interest
in withholding disclosure of the record. (Gov. Code Sec.
6255.)
This bill:
1)Clarifies that the public disclosure exemption for the name,
credit history, utility usage data, home address, and
telephone number of utility customers of local agencies does
not apply to industrial, commercial, and institutional water
use data.
2)Provides legislative findings and declarations that this bill
furthers the purposes of the California Constitution as it
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relates to the right of public access to the meetings of local
public bodies or the writings of local public officials and
local agencies, it is in the public's interest to know the
usage rates of industrial, institutional, and commercial water
and energy users, and, unlike residential utility users, the
privacy interests of industrial, institutional, and commercial
users are not sufficient to justify granting an exemption from
the public disclosure requirements, in this context.
3)Makes other technical and conforming changes.
Background
The CPRA requires state and local agencies to make public
records available for inspection by the public, with specified
exceptions. The CPRA provides for the confidentiality and
non-disclosure of numerous classes of information, including the
residential address of an individual in a record maintained by
the Department of Housing and Community Development, the
residence or mailing address of any person in any record of the
Department of Motor Vehicles, and the name, credit history,
utility usage data, home address, or telephone number of utility
customers of local agencies. These confidentiality provisions
were enacted to protect individual privacy in the wake of
several instances of criminal activity against individuals whose
residential information was disclosed by public agencies. (AB
1779 (Roos, Chapter 1213, Statutes of 1989); SB 448 (Sher,
Chapter 276, Statutes of 1997).)
However, recent news articles charge that SB 448 was actually a
measure to weaken the CPRA. According to one article:
In the midst of a historic drought, Californians have no way
of knowing who's guzzling the most water. For the source of
this legislation, look no further than Silicon Valley, where
the [C]ity of Palo Alto decided it needed to do more to
protect the privacy of the tech elite. "Palo Alto, even then,
was home to a number of very high-profile tech-related
residents," said Ariel Calonne, who was the city attorney at
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the time. "We had fairly extensive databases that covered a
lot of sensitive information for a lot of noteworthy people,
and that became a concern for our utility managers." (K.
Mieszkowski, L. Williams, To Shield Tech Executives,
California's Biggest Water Users are Secret (Apr. 16, 2015)
Page 6
Community Water Center
Environmental Justice Coalition for Water
Environmental Working Group
First Amendment Coalition
Natural Resources Defense Council
Sierra Club California
TreePeople
OPPOSITION: (Verified8/10/16)
African American Farmers of California
Agricultural Council of California
American Coatings Association
American Pistachio Growers
American Planning Association
Association of California Egg Farmers
Automotive Specialty Products Alliance
Building Owners and Managers Association of California
California Asphalt Pavement Association
California Association of Nurseries and Garden Centers
California Business Properties Association; California Chamber
of Commerce
California Citrus Mutual
California Construction and Industrial Materials Association
California Cotton Ginners Association
California Cotton Growers Association
California Farm Bureau Federation
California Fresh Fruit Association
California Grain and Feed Association
California Large Energy Consumers Association
California League of Food Processors
California Manufacturers and Technology Association
California Municipal Utilities Association
California Paint Council
California Restaurant Association
California Retailers Association
California Seed Association
California Special Districts Association
California Tomato Growers Association
California Warehouse Association
Chemical Industry Council of California
Consumer Specialty Products Association
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Family Winemakers of California
Grocery Manufacturers of America
Independent Energy Producers
International Council of Shopping Centers
NAIOP - Commercial Real Estate Development Association
National Federation of Independent Business
National Hmong American Farmers
Nisei Farmers League
Northern California Power Agency
Pacific Coast Rendering Association
Sacramento Municipal Utility District
UnitedAG
Western Carwash Association
Western Plant Health Association
Western States Petroleum Association
Wine Institute
ARGUMENTS IN SUPPORT: The First Amendment Coalition, in
support, argues that "[t]he public is entitled to know - indeed,
the public has a need to know - water usage data of commercial
and other institutional users. Access to this information is
the only way for the public to assess the effectiveness of
government water conservation policies. The severe [drought]
afflicting California only underscores the importance of this
access." Further, the California Newspaper Publishers
Association, in support, asserts that this bill "would provide
the public with a better understanding of whether the policies
of local agencies are effective in achieving state mandated
cut-backs and whether enforcement is selective or is fairly
applied."
ARGUMENTS IN OPPOSITION: The California Municipal Utilities
Association, in opposition, states that "[u]nder existing law,
private utilities are not required to share their utility
customer information upon public request. Under SB 448 (Sher,
Chp. 276, Statutes 1997), public safety concerns and the issue
of 'parity' between privacy rights that apply only to private
utility customers versus no such protections for utility
customers of a public agency prompted the Legislature to ensure
privacy protections are equal for all utility customers. The
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current law provides essential limited protections on the
public's right to access individual customer information,
striking a balance between the right to public information and
the right for both residential and commercial customer's usage
information to be withheld. In lieu of the six exceptions
[under the CPRA], it is unclear why 'names, credit histories,
usage data, home addresses, or telephone numbers' should only
apply to residential customers when such protections benefit all
customers."
The opposition further asserts that "current law also levels the
playing field between customers of private investor owned
utilities and utility customers of local agencies. In 1997, SB
448 (Sher) determined that utility usage information from local
agencies was not public information. Yet, this bill is
deliberately trying to overturn that, picking and choosing which
information should remain private. Most large commercial,
industrial, and institutional users of water and energy pay
based on volume they use. Under existing regulations, local
water districts, for example, are able to determine if
conservation goals have been met. If the conservation goal is
not met, the local agency can impose fines of up to $10,000 per
violation, and $500 per day thereafter for every day the
violation continues to enforce compliance." The opposition
states that it is also unclear how this bill, by making
commercial utility usage information public, would help reduce
water usage or energy consumption.
ASSEMBLY FLOOR: 53-21, 4/16/15
AYES: Alejo, Baker, Bloom, Bonilla, Bonta, Brown, Burke,
Calderon, Campos, Chau, Chiu, Chu, Cooley, Cooper, Dababneh,
Daly, Dodd, Eggman, Frazier, Cristina Garcia, Eduardo Garcia,
Gatto, Gipson, Gomez, Gonzalez, Gordon, Roger Hernández,
Holden, Irwin, Jones-Sawyer, Levine, Lopez, Low, McCarty,
Medina, Mullin, Nazarian, O'Donnell, Patterson, Perea, Rendon,
Ridley-Thomas, Rodriguez, Salas, Santiago, Mark Stone,
Thurmond, Ting, Waldron, Weber, Williams, Wood, Atkins
NOES: Achadjian, Travis Allen, Bigelow, Brough, Chávez, Dahle,
Beth Gaines, Gallagher, Gray, Grove, Hadley, Harper, Jones,
Lackey, Maienschein, Mathis, Mayes, Obernolte, Olsen, Wagner,
Wilk
NO VOTE RECORDED: Chang, Kim, Linder, Melendez, Quirk,
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Steinorth
Prepared by:Nichole Rapier / JUD. / (916) 651-4113
8/10/16 15:35:00
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