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In March, Assemblymember Blanca Pacheco introduced a measure that would have made it more expensive for Californians to obtain government records.
Amid opposition from transparency advocates and public access concerns from her own Assembly colleagues, though, the Downey Democrat diluted her proposal to simply give governments more time to respond to records requests, a change that allowed the measure to sail through the Assembly in May.
Now, she’s brought the controversial elements back — and they are even more restrictive than before, drawing fierce opposition from transparency advocates.
The latest version of her proposal, Assembly Bill 1821, would allow government agencies to delay responding to certain requests and to charge at least $88 an hour to search for and review the records they deem are for “commercial use.”
Government agencies could also take requests to court if they believe someone is asking for the records for a malicious reason.
Pacheco told CalMatters her measure aims to prevent frivolous records requests from inundating local governments, especially requests generated by artificial intelligence.
For years, local agencies have argued that fulfilling extensive records requests burdens public workers and allows bad actors to overwhelm governments. In 2023, someone requested Bay Area city officials’ emails to train an AI service they wanted to sell to local governments, said Donald Larkin, an attorney representing the League of California Cities, which supports the legislation.
“Transparency is important to me,” Pacheco said in an interview. “We just want it to run efficiently, and these are just minor amendments or minor tweaks to the Public Records Act.”
But First Amendment advocates say state law already allows agencies to decline frivolous records requests by arguing that they are “unduly burdensome.” Even when requests are legitimate, agencies routinely delay fulfilling them or withhold records for months or years, drawing legal challenges.
Pacheco’s measure would create barriers that would chill the public from filing requests, effectively gutting the state’s open records act and violating the spirit of Californians’ constitutional right to government information, transparency advocates argue.
“The only way that there’s any government accountability is that people know what the government is doing,” said David Snyder, a former journalist and now the executive director of the First Amendment Coalition.
“This looks a lot like an effort to evade accountability.”
The proposed changes would “make California stand out as the most secretive state in the country,” said David Cuillier, a University of Florida journalism professor who sits on the federal Freedom of Information Act advisory committee.
The whiplash of amendments angered many transparency advocates, who criticized Pacheco for overhauling her proposal only after it was approved by the Assembly.
The move, prevalent in the Legislature, “often leads to badly written bills with dangerous side effects and AB 1821 now fits squarely into that category,” said Tracy Rosenberg, advocacy director at local watchdog group Oakland Privacy, who called the proposal “a virtual horror show of governmental non-transparency.”
Authority to sue for ‘malicious’ requests
While many local governments across the nation have sued — and largely lost — over what they consider “vexatious” requests, California would be the first state to explicitly allow agencies to sue for “malicious intent.” Requesters the court deems malicious would have to pay $88 an hour to obtain records.
Public agencies already use the courts to target requests they don’t like, and rubber-stamping that authority by writing it into law would embolden them to deny more requests, First Amendment advocates say.
“It would be easily weaponized by agencies seeking to thwart transparency and accountability, as has already happened elsewhere in the country,” Snyder said.
The threat of a lawsuit alone would “chill requesters from submitting public requests,” said Shaila Nathu, a senior attorney with ACLU of Northern California, which also opposes the bill.
Pacheco dismissed the concerns, stating that she doubts that cities would sue very often because it’d require them to go to court just to recover a limited amount of fees. But the provision would offer a tool just in case, she said.
“Hopefully this will curb the bad actors,” she said. “I don’t anticipate that this would slow down legitimate requests.”
‘Outrageous’ fees risk chilling public engagement
Advocates also criticized Pacheco’s fee proposal, arguing it would discriminate against requesters based on their use for the records. State law bars agencies from limiting access to public records based on purpose.
The measure would allow agencies to charge more for requests they deem to further someone’s “commercial, trade, or profit interests.” It would exempt just a small group of people, such as academics, journalists and government agencies. Under current law, agencies can only charge for making copies of the records, usually at between 10 to 50 cents a page.
For the rest of the public, agencies could ask them to submit information “promptly” to prove their intent and automatically treat those who don’t as commercial requesters. The bill includes no standard for what is “prompt.”
“It’s so fact-specific that it’s kind of hard to say what’s reasonable, what’s prompt,” Pacheco said. “Most people will reply if a city asks, and then the city can then obtain the records for the individual.”
In an email, Pacheco spokesperson Alina Evans told CalMatters that the assemblymember wants to prevent taxpayers from subsidizing “the cost of building or improving a private company’s commercial product.” But, she said, Pacheco will amend the measure to prevent forcing every requester to justify their request.
Snyder said that language would give governments broad authority to play favorites — “to see why it is somebody’s requesting records and then to potentially make decisions based on that.”
Those deemed commercial would have to pay $22 an hour in “administrative fees” and $66 an hour in “professional fees” for the search, review and redaction of the records, although the California Supreme Court already ruled in 2020 that such charges threaten Californians’ right to access.
That hourly rate would be “outrageous” and could easily become so burdensome that low-income Californians stop filing requests altogether, Cuillier warned.
Critics also slammed the measure for empowering agencies to decide how quickly they need to respond to requests based on how people file them.
Under current law, government agencies must respond to a request within 10 calendar days and extend the deadline for providing the records by no more than 14 calendar days. The law does not mandate a specific format for submission, although many local and state agencies allow requests through an online portal.
Pacheco’s bill would extend the timeline to 10 and 14 business days respectively, but only if the requests are filed in person or by email during normal business hours.
Those requesting records by fax, by mail or through an online portal would be at the agencies’ mercy.
The initiative originated from one of Pacheco’s many trips sponsored by special interest groups last year, her spokesperson, Alina Evans, told CalMatters in March. Last year, Pacheco reported receiving more than $45,000 in sponsored travel — the most of any California lawmaker — including a study tour in Spain, a golf tournament in Pebble Beach and a conference in Maui. When asked Wednesday, however, Pacheco said she did not remember which one inspired her measure and said the idea came from multiple conversations with local governments.
The latest amendment reflects talks Pacheco had with the League of California Cities, the California State Association of Counties, the city of Downey, municipal clerks and several lawmakers on the Assembly Judiciary Committee, which approved a much narrower version of her proposal, Evans said.
