In June, California voters overwhelmingly approved Proposition 42, a ballot measure that brings greater transparency to public records and public meetings, but shifts the costs of compliance to local governments. While this new requirement may impose new burdens, it also serves as an impetus for local governments to transform a process that is all-too-often neglected and disjointed into an opportunity for productive exchange with community members.
Through our work at PostCode, a CfA incubator company, we’ve been collaborating with the City of Oakland to maintain and extend RecordTrac, a public records request system developed during the 2013 Fellowship. We’ve seen first hand how a more open public records request process can bring with it not only greater efficiency, but also a shift in the tenor of the conversations between government and constituents. And in interviews with public servants in dozens of cities throughout the country, we’ve learned that governments everywhere are in need of similar change.
Constitutionally-mandated Transparency
Proposition 42 amends the state Constitution to require local government agencies to comply with the California Public Records Act and the Brown Act, which addresses open meetings. As transparency advocates, we’re thrilled that such strong provisions have been passed. The measure ensures that legislative acts—like the 2013 budget bill that would have suspended some portions of the Public Records Act in order to save money—cannot undermine open government mandates.
A Funding Challenge for Local Governments
A second portion of the proposition addresses the more practical question of how such transparency is funded. It shifts the costs of the Public Records Act compliance from the state to local agencies. Because the state is no longer responsible for the costs associated with extensions to The Public Records Act and the Brown Act, legislators may be empowered to enact new additions to the law. This could mean powerful new transparency requirements, but they would now also be unfunded mandates. According to the state Legislative Analyst’s Office, “local governments could incur additional costs—potentially in the tens of millions of dollars annually in the future.” As a result, cities and other local agencies, many of which are cash-strapped already, will need to find ways to cut costs by improving the efficiency of their processes for responding to public records requests.
Unlike a number of states, California law does not allow agencies to charge requesters for the staff time involved in retrieving and distributing public records, and local governments have borne most of the expense of complying with the Public Records Act. In 1975, the California Constitution was amended to require the state to reimburse local agencies for new mandates it imposed after the initial 1968 enactment of the Public Records Act. Such additions include providing a justification for the denial of a request, and delivering documents in native digital formats—all positive steps toward greater transparency. Proposition 42 directs the expense of these requirements back to cities and other local governments. KQED has an excellent summary of the history of the Public Records Act if you’re interested in more detail.
An Opportunity for Innovation
Instead of regarding the requirements of Proposition 42 as a burden, local governments should treat it as an opportunity. While the new rules will apply only to local governments in California, there is a growing movement throughout the country to bring more transparency to freedom of information requests. In New York City, for instance, City Council has proposed a bill to mandate and open FOIL portal. Rather than instituting piecemeal measures in response to new laws, local governments could follow the lead of Oakland and take proactive steps to be more radically transparent than the Public Records Act requires.
As we’ve discovered through conversations with public servants in California and throughout the country, the public records request process is frequently confusing and decentralized, not just for requesters but for those within government. There is no one size fits all solution to this problem. Agencies have moved improved the process with measures ranging from providing a standardized PDF form for requests to building simple web forms to more radically transparent measures like the implementation of RecordTrac in Oakland. Each government should take the time to imagine what an ideal process might look like for their agency and its constituents, and how technology might play a role in helping them to realize that vision. Change always takes time and can be painful. By acting deliberatively rather than reactively, local governments have the opportunity to craft thoughtful, comprehensive, efficient, and even innovative approaches to open government.
Questions? Comments? Hit us up @codeforamerica.