Frequently Asked Questions about Bills with Public’s Right of Access Disclaimers

Frequently Asked Questions about Bills with Public’s Right of Access Disclaimers By Chris Micheli

            Have you ever read a bill and found a section at the end of the bill discussing the public’s right of access being limited by the bill? The following is an example from a bill in the California Legislature: 

SEC. 5. The Legislature finds and declares that Section 1 of this act, which amends Sections 12651 of the Government Code, imposes a limitation on the public’s right of access to the meetings of public bodies or the writings of public officials and agencies within the meaning of Section 3 of Article I of the California Constitution. Pursuant to that constitutional provision, the Legislature makes the following findings to demonstrate the interest protected by this limitation and the need for protecting that interest: Sensitive information of California taxpayers should be adequately protected from disclosure during the process of the assessment and collection of taxes to protect privacy and increase compliance.

Why is this language required to appear in a bill section? The state Constitution in Article I (“Declaration of Rights”), Section 3., provides, in part, that “the people have the right of access to information concerning the conduct of the people’s business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.”

How is this constitutional provision to be applied by courts in this state? Section 3 specifies that a statute, court rule, or other authority, including those in effect on the effective date of this subdivision, are required to be broadly construed if it furthers the people’s right of access, and narrowly construed if it limits the right of access.

What happens if there is a future statute or court rule that is adopted? Section 3 specifies that “a statute, court rule, or other authority adopted after the effective date of this subdivision that limits the right of access is required to be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.”

What does the state Constitution require for limits on public access? These provisions of Section 3 require a statute that limits the right of access of the public to be adopted with legislative findings that make clear what the interest that is being protected by limiting public access and then justifying the need for protecting the public’s interest.

How does the state Constitution affect existing laws on public access? Section 3 includes a provision that nothing in this provision of law repeals or nullifies, expressly or by implication, any constitutional or statutory exception to the right of access to public records or meetings of public bodies that is in effect on the effective date of this subdivision, including, but not limited to, any statute protecting the confidentiality of law enforcement and prosecution records.

            Is there a requirement for local government to meet? Section 3 requires each local agency to comply with the California Public Records Act and the Ralph M. Brown Act.

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