AB 1821 is set for a crucial committee hearing June 30.
California’s Public Records Act — a key to citizen and press freedom — is under attack by a Southern California Democrat in the form of the amended Assembly Bill 1821.
The CPRA, though slightly flawed in content and problematic because of misapplication by public servants and court systems, could be weakened if Assemblymember Blanca Pacheco (D-Downey) finds sufficient support from state legislators.
Pacheco’s fundamental claim is that cities and counties are being overwhelmed by public records requests and must become delinquent in their other roles to satisfy this one.
Pacheco’s disastrous suggestions follow:
• The Search-Fee Barrier The current amended text sets two specific fee tiers requestors would pay for their queries: an administrative fee of $22 per hour and a professional fee of $66 per hour, both subject to cost-of-living adjustments tied to the U.S. Consumer Price Index. Charges for less than a full hour are billed in quarter-hour increments. If requestors don’t fall into a fee-exemption category, fees for even modest records requests could be excessive for many people.
• Unequal Access and Press Exemptions One of the most controversial aspects of AB 1821 is that it includes exemptions for certain groups, including traditional media organizations. As both a journalism professor and former full-time journalist — and I say this realizing the contradiction — traditional journalists have not agreed upon a definition of who counts as a journalist. Further, journalism isn’t the only good reason to have access to government documents.
In practice, a neighborhood association monitoring a city’s use of homeless encampment funds, a small business owner challenging a zoning decision, or a retiree investigating a public pension board’s investment choices would face fees and legal jeopardy that a “credentialed” news outlet would not. But if one has ever heard of citizen journalism or scoured the Internet and published online, it might be that anyone, from a legal perspective, is a journalist.
We no longer have to buy ink by the barrel to publish content. How will interpreters of this bill establish what some of the brightest minds in the business have not?
• The “Malicious Intent” Standard The most terrifying aspect of AB 1821 is the bill’s “malicious intent” provision for agency lawsuits, which uses a vague legal standard that could result in members of the public, including journalists, being sued by public agencies who deem their efforts “malicious.” This would invite ambiguity and stricter rules that may limit access for everyday Californians who fear litigation.
The punchline: any taxpayer-funded agency accused of misconduct would decide whether the person seeking evidence of that misconduct has “malicious” motives — a determination made by the very institution with the most to lose from disclosure. Apparently, the Dimwit from Downey doesn’t mind conflicts of interest with her side of intentional ambiguity.
Under AB 1821, for example, a city hall under scrutiny for a no-bid contract, or a school district facing questions about administrator pay, would have standing to sue the person asking the questions — and to define what makes the asking improper.
Further, Pacheco seems to be ignoring that there’s already a solution for her biggest objection — large data requests that absorb too much agency bandwidth — in existing legislation. The CPRA already allows agencies to maintain the core gatekeeping requirement that a request must reasonably describe an identifiable record or records. If a request is so “vague or sweeping” that the agency cannot determine what specific records are being sought, it can reject it on that basis.
Big data requests by those with “commercial interests” — that is, entities that might want to, as an example, resell that data after it’s been sorted, analyzed and packaged by AI, can already be dismissed.
The problem is already solved.
The Dimwit from Downey has a law degree. She is either a world-class dimwit or she is the one with malicious intent.
A state of decline
California is already mixed in its national standing for government openness, especially given the expansiveness of its government. It is both better than the most restrictive states, like Michigan, which, until recently, exempted the governor and legislature from any public records responsibilities. However, it’s certainly much worse than Florida (yes, really), a state in which I was a reporter for several years.
Florida legislation starts from the opposite assumption that states like California use by default: Government records are public unless proven otherwise, not private unless proven necessary.
In an irony without humor — and with a local (knife) twist — California improved its reputation for openness (in principle) with State Bill 1421 and the aforementioned AB 748, which opened police misconduct and use-of-force records that were previously difficult or impossible to access. Yet even clear legislation cannot stop bad actors from abusing their power.
Ask journalist and former journalism educator Dave Waddell (who I must disclose is a former colleague at Chico State).
He’s twice sued for access to information about police-involved shootings and allegations of excessive force, among other policing issues. Between the two suits, his opponents have been the City of Chico (including its police department), Butte County Sheriff Kory Honea and the King Hell Kingpin of Butte County, District Attorney Mike Ramsey.
To preface, I have enormous respect for police and the incredible challenges of policing; they’ve had an unfair public shake for years — a few bad apples have truly spoiled the bunch, making the job more thankless and more dangerous than it had been. Sheriff Honea is also someone I admire for a great number of reasons, but mostly his leadership in times of crisis and his legal pragmatism, and I suspect any document withholding by the sheriff’s office is due to top-down pressure.
Here’s why: A DA can decline to file on whole categories of cases a law enforcement agency cares about — drug possession and distribution, resisting or obstructing charges, certain property crimes — and there’s essentially nothing the chief or sheriff can do about it. When a DA quietly rejects a high share of one agency’s submissions, it demoralizes officers, depresses the department’s clearance and conviction statistics, and lets the DA imply publicly that the problem is poor police work — weak reports, bad searches, sloppy chain of custody — rather than prosecutorial choices.
Slow-walking filings, downgrading charges, offering generous diversions or pleas, and declining to seek enhancements all produce the same effect more subtly. That amounts to law enforcement being under a Ramsey-size thumb.
Add to this that Kingpin Ramsey seems to operate without accountability — mostly because the people of Butte grant him such power by both voting him into office since the dawn of the dinosaurs, and by those who choose not to oppose him during elections.
And when it comes to protecting the police, for some good and mostly bad reasons, he might have won favor with law enforcement because — wink, wink; nod, nod — I’ll be sure your boys and girls are protected, no matter what.
One needs to know no other case than Ramsey’s initial clearance of former Paradise police officer Patrick Feaster, who shot a man attempting to exit his automobile in November of 2015 after a police pursuit on suspicion of DUI and a subsequent rollover by the pursued SUV.
Feaster’s incompetence — and Ramsey’s chutzpah for voluntarily releasing the video in December 2015 — makes a mockery of Andrew Thomas’s death, the alleged driver who was shot in the neck by Feaster for no apparent reason. Nonetheless, the Keystone Kop and Ramsey were apparently safe until the video went viral, and a shitstorm of public outcry followed. Apparently, Pacheco isn’t the only dimwit.
Ramsey, despite being nearly untouchable, was subsequently pressured, perhaps for the first time ever, to charge Feaster with felony involuntary manslaughter, for which he was sentenced to a whopping 180 days in jail. What appears like an execution on the streets of Paradise was punished with less force than a 1980s possession of marijuana charge, especially when the perp was a person of color.
Moreover, if Feaster’s shooting was involuntary, maybe we’ve solved the mystery of whether guns kill people, or people kill people. Hell, if this is involuntary, guns are more dangerous than our worst fears with AI, even sitting in a locked safe — they’ll just load themselves, pick the lock and walk out to find a hapless victim. Maybe more than one.
“Weakening the already challenging California Public Records Act in the way Pacheco intends will only invite DAs to condone violence against citizens” — Aaron Quinn
But wait: I did notice that Feaster both unholstered a pistol, aimed at, and shot a man who was trying to free himself from the wreckage of a rollover. As one can clearly see in the video, Thomas posed no threat to the officer whatsoever, but Feaster chose to play 9-mm whack-a-mole anyway. That’s about as voluntary as one can be, except in the eyes of the Kingpin.
Waddell has twice been stonewalled by the city and county with delayed or denied requests for government documents. In a suit filed in 2022, he prevailed over the City of Chico in Butte County Superior Court after risking over $100,000 of his personal cash to pay for legal fees he might not have recovered had he lost the suit.
This, of course, turned into a waste of taxpayer funds when the city had to repay Waddell for those fees and cover its own. Moreover, how many ordinary citizens or journalists are willing to risk that sort of loot for a news story, especially if the courts are ill-prepared to interpret public records law, or do so under the influence of the Kingpin?
That didn’t stop the Great Administrators of Chico and Butte the second time Waddell sued. I suppose when it’s not coming from one’s own pocket, it’s easy to spend like, well, a government employee with someone else’s money. In Waddell’s second lawsuit — an attempt to retrieve unredacted video footage of police-involved shootings — he was partly vindicated in having officers’ faces and identities unblurred in two of four cases he was researching.
However, the court did not grant the same wish in two others, citing that The Kingpin had declared two of the cases as ongoing investigations, even though they were more than a year old. Waddell and his attorney have since filed in California’s Third District Court of Appeal in Sacramento, having rightly cited Butte County Superior Court’s misinterpretation of SB 1421 and AB 748.
In the appeal filing, Waddell’s First Amendment attorney, Matthew Cate of San Francisco, argues:
“The superior court erroneously concluded that the County Parties and the City could withhold, under SB 1421, records relating to two fatal officer-involved shootings based on a conclusory declaration by the Butte County District Attorney that amounts only to an assertion that the incidents — which occurred more than a year ago — remain under investigation.
“Further, while the County Parties plainly missed, by months, the mandatory deadline to disclose other records to Waddell and never sought to justify their delay, the superior court improperly declined to declare that their violation violated the law. These rulings are legally erroneous, misapply the text of SB 1421/SB 16 and AB 748, and undermine not only the Legislature’s intent in enacting those provisions but also, left uncorrected, stand to condone future violations of the law by the County Parties and City.”
Weakening the already challenging California Public Records Act in the way Pacheco intends will only invite future Dimwits, Keystone Kops and Kingpin DAs to condone violence against citizens, diminish our state and federal constitutional rights and thus our personal and community well-being.
And in the process, they will charge us for the favor, either in dollars and cents or with prosecution.
The First Amendment Coalition urges Californians to contact members of the Senate Judiciary Committee prior to its June 30 hearing to oppose AB 1821.
Aaron Quinn is a professor and former Chair of Journalism and Public Relations at California State University Chico. He teaches and performs research in media ethics, political science and investigative journalism.