When Assemblymember put in a Public Records Act request to get voter registration information from the Department of Motor Vehicles to help a constituent, the agency denied his request based on what he believed was shaky reasoning. His only recourse: Going to court.
If that鈥檚 the experience for a state lawmaker, Fong said he can only imagine what it鈥檚 like for a member of the public.
That鈥檚 what prompted the Republican lawmaker from Bakersfield to introduce, for the third time, a bill to test for three years the .
鈥淭o expect the average citizen to take the government to court and expend resources was just a nonstarter. It鈥檚 not fair,鈥� Fong said. 鈥淲hen we talk about transparency, we have to live it out, especially when we talk about our actions and the actions of state government.鈥�
While his previous bills failed, has passed unanimously through committees and the full Assembly. It has a Democratic co-author, Assemblymember of Oakland.
At least 18 other states have a similar office or process to resolve public records disputes, according to the ,
But the bill 鈥� which has drawn far less attention than another public access-related measure that would under some pandemic rules 鈥� only has until Thursday to win final passage this year.
And it isn鈥檛 without opposition.
The First Amendment Coalition, though not officially registered as an opponent, is concerned that the bill鈥檚 language allows, and encourages, state agencies to appeal the ombudsperson鈥檚 decision in court and potentially drag in people who requested the records, said David Loy, legal director for the coalition, which advocates for transparency and access to public records.
The court鈥檚 review of the records request would be independent of the ombudsperson鈥檚 findings, Loy added. So in the coalition鈥檚 view, state agencies have nothing to lose by going to court 鈥� which gives them 鈥渢wo bites at the apple,鈥� and, at the least, delays the release of records.
鈥淲e鈥檙e very concerned about anything which would codify any process that would allow a public agency to bring an ordinary person into court just for seeking public records,鈥� he told CalMatters.
But Fong said the ombudsperson could help government agencies avoid costly lawsuits.
How would the office work?
Fong鈥檚 bill, in its latest form, would require the governor to appoint an ombudsperson to decide within 30 days whether denials of public records requests comply with state law. If they find it was improperly denied, they would require the state agency to provide the public record.
The ombudsperson would also be required to create a process to ensure privacy of anyone mentioned in a record, and report the number of requests to the Legislature annually, starting in March 2025.
While some agencies have an ombudsperson, they focus on general disputes and not on public records, according to an analysis by the Assembly judiciary committee.
The analysis also notes that, unlike public records laws in other states, California does not give the attorney general the authority to enforce the act against agencies, unless it has been denied access, itself.
Fong鈥檚 initial bill placed the role under the State Auditor鈥檚 office, but was amended in committee to create an independent office due to concerns about conflicts of interest 鈥� for example, if a review of the state auditor鈥檚 decision is requested.
One concern the judiciary committee noted: The bill only applies to state agencies, not local governments, which receive, and 鈥渋nappropriately deny,鈥� far more requests. Plus, applying a law differently to state agencies than local agencies could be confusing.
But the bill, like one last year, does require a report, by March 1, 2026, to assess whether local agencies should be covered.
Supporters of the bill include the California Association of Licensed Investigators, the Howard Jarvis Taxpayers Association, the California Association of Bond Oversight Committees and Oakland Privacy, a citizens鈥� group focused on privacy rights and public transparency.
Besides the court appeals, the First Amendment Coalition says it is concerned that the bill allows third parties to be involved in the request if they have concerns about privacy. And since the ombudsperson would be appointed by the governor, that could lead to politics.
鈥淭hat鈥檚 not a comment on a particular governor, or whoever鈥檚 in that seat,鈥� Loy said. 鈥淎ny time you have a political appointment, the employment process necessarily becomes politicized. And transparency is, or should be, above politics.鈥�
There鈥檚 also the issue of financing a new state office when California faces a $32 billion budget deficit. Creating the office would cost 鈥渓ikely in the tens of millions鈥� for staffing, IT infrastructure and other operating expenses, according to the Senate appropriations committee. In addition, it could cost potentially 鈥渢ens of millions鈥� for state agencies to comply with the ombudsperson鈥檚 requests.
The bill was amended after recommendations by the appropriations committee to make it subject to an annual appropriation by the Legislature.
Fong is no stranger to budget concerns. As vice chairperson of the Assembly鈥檚 budget committee, he鈥檚 often the voice of fiscal responsibility. But this is an expenditure he sees as worthwhile 鈥� and one he vows to fight for if the bill is signed into law.
鈥淵our investments and your budget reflect your priorities. And so if transparency is a priority, then we have to make it one,鈥� he told CalMatters. 鈥淲e work for the people. And so not the other way around. And so when we make impactful decisions, then you know, the public deserves justification. And if they ask for data and ask for records, you know, they should have access to it.鈥�
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