This week marks the 10th anniversary of Sunshine Week, a weeklong open government initiative. This year, the McClatchy and Gannett Cos., the American Society of News Editors, and The Associated Press teamed up to develop a package of stories, video, photos and graphics for the occasion. This is one story in the series.
Fifteen years ago, California lawmakers decided the public has a right to get government records not just as printed pages, but in any format in which they exist.
The idea was to offer easy access to the tremendous volume of public records that may never start out as a piece of paper: Think spreadsheets, databases and other 21st-century methods for organizing information.
Since then, cities, counties and state agencies have routinely provided budgets, payrolls, expenses and countless other sets of public data in electronic formats. Compared with reams of paper, the digital information, often transmitted by email, is both easier to analyze and more efficient. No photocopying necessary. No delays in the mail.
Yet the bill lawmakers approved in 2000 to give Californians electronic access to public records covered almost every branch of local and state government except the Legislature itself.
The measure amended the California Public Records Act – which covers most state and local governments – but didn’t touch the much more restrictive law that governs the Legislature’s information, known as the Legislative Open Records Act, or LORA.
“This is another instance of the relative shallowness – or lack of comprehensiveness – in LORA, as compared with the Public Records Act,” said Terry Francke, general counsel for Californians Aware, a group that promotes open government.
“I can’t see any legitimate reason why the Legislature can’t do as is required of all the agencies in the executive branch.”
The Legislature’s open records law keeps secret many documents that other branches of government must disclose under the Public Records Act, including official correspondence and phone records. The law is so antiquated that it even shields “telegraph communications” from public release.
Even budgets and calendars – public records in most government agencies – have been difficult to get from the Legislature without a court order. The Assembly tried to keep details of its $146.7 million annual budget secret until it lost a 2011 lawsuit by The Sacramento Bee and Los Angeles Times, and a judge compelled disclosure. In a case set for trial later this year, two California newspaper groups have sued the state Senate to try to force officials to release portions of the calendars of two senators indicted in separate public corruption cases.
While the Legislature’s open records law doesn’t require releasing information in electronic formats, the practice is not forbidden. Yet requesting electronic records from the Legislature remains a crapshoot.
“Each house gets to make that decision based on their discretion,” said legislative counsel Diane Boyer-Vine, the Legislature’s top lawyer.
The Assembly and the Senate post PDFs of staff payrolls on their websites, but they are often out of date. So The Bee routinely requests staff payrolls from the Legislature in digital format. In a couple of cases, officials have responded with a CD containing payrolls in PDF files. More typically, they hand over a manila envelope full of printed pages, listing monthly salaries for the more than 2,100 employees of the Senate and Assembly.
“They’re doing this just to make it difficult for you to do any analysis of the numbers,” said Peter Scheer, executive director of the First Amendment Coalition.
A payroll on paper, or in an electronic PDF file that can’t be manipulated, reveals little useful information about how the Legislature spends its public funds. But a payroll in an electronic spreadsheet can be sorted in various ways, making it possible to determine when the Legislature gives raises, see who is paid most and track how the size of its workforce changes over time.
To measure how the Legislature spends roughly $139 million a year on salaries, the paper payrolls first must be scanned into an electronic image. The Bee uses software to convert the image into letters and numbers that can be pulled into a spreadsheet. Such a process requires careful review, though, because specks and blemishes on the paper records provided by the Legislature can lead to an incorrect conversion. L’s can be confused for I’s. The letter M can be read as IVI.
In other words, it’s a time-consuming and cumbersome process to wind up with an electronic spreadsheet that’s the same as the one the Legislature holds.
Legislative officials declined to explain why they provide public records in this way. Boyer-Vine, the Legislature’s lawyer, said she doesn’t make the decision and that any advice she gives legislative administrators on how to release records is protected from public disclosure by the attorney-client privilege.
Debra Gravert, the Assembly’s chief administrative officer, broke with the Assembly’s tradition of giving paper payrolls and provided them as PDFs on CD after The Bee raised the issue. The Senate has moved in the opposite direction. The upper house provided payroll PDFs on a CD one time last year. Since a new administrator and Senate leader took over in October, however, officials have provided payrolls only on paper. A spokesman for Senate leader Kevin de León said Senate officials would not comment on policies for releasing public records.
The Legislature’s practice is in stark contrast to numerous other government agencies that provide the public information in convenient electronic formats.
Several agencies house data sets that can be downloaded on their websites. The Department of Education site offers a trove of school performance data, and the State Controller’s Office site includes a database with the job titles and salaries of most local government and state employees. Yet it excludes legislative employees because, a spokesman for the Controller’s Office said, the Legislature never gave the controller its staff payroll.
Many agencies have grown accustomed to providing electronic information in response to public records requests:
- The Corrections Department released a massive electronic file showing arrest, conviction and incarceration data, including inmate numbers, that allowed a reporter to track whether offenders were arrested again after release.
- The City of Sacramento released a spreadsheet showing all purchases on city credit cards, which employees made them and when.
- CalPERS emails The Bee spreadsheets every month reporting on retirements of public employees.
- The Governor’s Office routinely provides an electronic copy of Gov. Jerry Brown’s calendar.
- The State Personnel Board has released more than 100 electronic pages detailing claims of misconduct by employees of the California Department of Forestry and Fire Protection.
- Caltrans has provided tens of thousands of electronic records as The Bee investigated problems with construction of the new Bay Bridge.
Though most government agencies are required to provide records electronically if they maintain them that way, access isn’t always guaranteed. A couple of years ago, Bee reporter Charles Piller said, Caltrans responded to a records request with 30,000 pages of paper documents. To make the information useful, The Bee hired a firm to scan the records – a process that took three days.
The average citizen, of course, doesn’t have the ability to do that, which is why open-government advocates lobbied to add electronic access to California public records law. Before that, it wasn’t uncommon for government agencies to respond to public records requests with a deluge of paper, said Tom Newton, executive director of the California Newspaper Publishers Association, which pressed for the bill that updated the law to include electronic records.
“If the agency didn’t want to comply with the request, that was a tactic they would use,” Newton said. “How do you manipulate it? How do you make sense of it? Can you use the power of computers at all to make that happen in some kind of efficient way?”
Newton said advocacy to change the law stemmed from the belief that “agencies ought to be required to provide the public records in any format in which they hold the information, any format in which they provide the information to themselves or other state or local agencies.”
Newton said he lobbied for the change for years before it was signed into law. In 1999, Gov. Gray Davis vetoed a bill to provide electronic records, citing Y2K concerns that state computers didn’t have the capacity to comply. A year later, he signed a similar bill.
Its author, then-Assemblyman Kevin Shelley, said this week that as he worked on updating the Public Records Act, he also considered adding an electronic records provision to the Legislative Open Records Act.
“But there was not a lot of, shall we say, support for the notion,” Shelley said. “It was a non-starter.”
Call Laurel Rosenhall, Bee Capitol Bureau, (916) 321-1083. Follow her on Twitter @LaurelRosenhall. Bee reporters Brad Branan, Ryan Lillis, Jon Ortiz and Charles Piller contributed to this report.