Two California Public Record Laws: One for the Legislature and One for Everyone Else
Editor’s note: This is part of a package of stories marking Sunshine Week, during which the media assesses the status of the free press in the U.S. Coming this week:
- TODAY: The California Legislature created one open-records law for state and local governments, the California Public Records Act, and a totally different law for themselves, the Legislative Open Records Act.
- MONDAY: Journalists beware! The internet has become a burgeoning forum for phony news, shady online ads and posts, intricately coordinated smear campaigns and Russian disinformation plots.
- TUESDAY: President Trump’s campaign to discredit the news media and dismiss critical reporting has spread throughout the political landscape. Officials at all levels of government are now using the term “fake news” as a weapon against unflattering stories.
- WEDNESDAY: The state of press freedoms in the U.S., based on an annual survey by the Newseum’s First Amendment Center.
ocuments released in February, showing current and former California legislators had been accused of sexual misbehavior and other harassment, weren’t released under the California Public Records Act.
Instead, the Legislature has its own, more restrictive public records law: the Legislative Open Records Act.
The California Public Records Act was signed into law 50 years ago by Gov. Ronald Reagan. The law says, in theory, all government agency records are public except for specific exceptions. But the Legislature was exempt from the law. Seven years later, it passed the Legislative Open Records Act.
“The Legislature carved out a special deal for itself with LORA, and it’s a deal that leaves the public out in the cold,” said David Snyder, executive director of the San Rafael-based First Amendment Coalition. “There’s a lot of things that the Legislature is not required to disclose that every other government agency in California has to disclose.”
Communications between elected officials and staff, such as between school district officials, are public documents under the California Public Records Act. But those communications are just one of the things the Legislature has decided don’t apply in its case.
In all, the Legislative Open Records Act carves out 11 exemptions in which the Legislature doesn’t have to release records to the public, according to Nikki Moore, Legal Counsel for the California News Publishers Association. Records of complaints to the legislature and investigations by the Legislature are also among the items excluded by LORA.
“Under the CPRA, you may not be able to get everything relating to investigations of misconduct, but there’s pretty good case law that you’re entitled to records of investigations, so long as the allegations are not totally unfounded,” Snyder said. “But LORA just puts all of this in a black box. If there’s allegations of misconduct, no matter how grave, no matter how vital they are to the public interest, you’re just not entitled to them.”
California public officials having one standard, and the Legislature having a different, lesser standard, isn’t restricted to just this law.
The Ralph M. Brown Act, passed in 1953, requires government agencies to release an agenda of what will be voted on 72 hours before a meeting. The Bagley-Keene Act, passed in 1967, requires state government agencies to also make their proceedings public. But neither act covers the meetings of the legislature itself.
“If you ask (former Assemblyman Bill) Bagley, who was responsible for the act, why he didn’t include the Legislature, he’d said it’s because it wouldn’t have passed,” said Frank V. Zerunyan, a Professor of the Practice of Governance at the USC Price School of Public Policy.
It took until 2016, and Prop. 54, which nearly two-thirds of voters voted in favor of, to get the Legislature to release the text of bills it was going to vote on 72 hours before a vote.
State Sen. Anthony Portantino talks about legislative transparency