One of California’s oldest government transparency laws is expected to get a boost if a new bill that removes the fear of a financial burden from those requesting public records is signed into law in the coming weeks.
The proposed measure from a Silicon Valley lawmaker could clear the way for more open government.
Sen. Bob Wieckowski, whose district includes all of Santa Clara and a portion of San Jose, began crafting the proposal for Senate Bill 518 after reports of agencies shifting their attorneys’ costs to public records act requesters came to his attention.
For example, in the case between the California Coastal Commission and Dunes Development, the firm asked for public documents that the commission reportedly refused to release. Dunes Development threatened to take it to court and the commission responded by offering a $10,000 settlement and a proposal to release some of the requested documents.
The offer was rejected by the development firm and the commission upped its offer to $30,000 with the same promise to release some, but not all, of the requested records. In the end, the court ruled in the requesters’ favor — coming to the conclusion that the public’s right to the information was not outweighed by a desire to withhold it. The commission carried out this bargaining tactic under what’s known as a “998 offer,” which is named for the section it falls under in the California Code of Civil Procedure.
In cases when plaintiffs are suing for public records, the 998 offer puts them at a considerable disadvantage. If a public agency offers to settle the case, those seeking public records are heavily incentivized to accept the deal.
If the plaintiffs reject the deal and prevail in court, they could be on the hook for the defendant’s legal costs after the settlement deal was offered. Judges also have the discretion to force plaintiffs who successfully sue for public records to cover the costs of expert witnesses hired by the defendants.
When used in public records requests, the individual withholding the records is entitled to a reimbursement of legal fees by the requestor, if the requestor rejects the offer and isn’t able to secure the public records through a trial.
This loophole means public agencies can effectively withhold public records and pass off their costs to the person or business seeking the records.
It’s a helpful incentive for reaching agreements, generally, but supporters of SB 518 say it should never be used in Public Records Act requests as it cuts the public off from information without fear of legal retribution.
“That’s not what the purpose of (998 is) for,” Wieckowski told San José Spotlight in an interview last week. “It sort of flies in the face of the foundation of the Public Records Act. We’re supposed to be open and transparent.”
SB 518 would close that loophole by banning 998 offers in public record request cases.
The bill is supported by the California News Publishers Association, the California Employment Lawyer’s Association and the First Amendment Coalition, among others. It is opposed by The California Special Districts Association, League of California Cities, California State Association of Counties, among others.
First Amendment Coalition Executive Director David Snyder echoes the senator in his concerns about the 998 offers being abused in Public Records Act cases.
“It’s a really crucial part of the California Public Records Act,” Snyder said, noting the protection the bill offers individuals and entities in requesting information. “It closes an important loophole that some government agencies have attempted to exploit.”
Wieckowski said the bill won’t come at a significant cost to the state nor will it prevent settlements from being reached through 998 offers if they are unrelated to Public Records Act requests.
“You have an absolute right to see what your government is doing and hold them accountable,” he said.
Following Senate approval on Wednesday, the bill is headed to Gov. Gavin Newsom. The governor has 30 days to sign it into law.
Contact Carina Woudenberg at firstname.lastname@example.org or follow @carinaew on Twitter.