FAC’s letter to Gov Brown, urging veto of SB 1300

Here is FAC’s letter to the Governor, urging his veto of SB 1300:

 

Dear Governor Brown,

On behalf of the First Amendment Coalition (FAC), I am writing to request your veto—or, alternatively, a qualified signing–of Senate Bill 1300, which requires oil companies to file reports on scheduled shutdowns, typically for maintenance, of their refinery facilities.

We have no objection to the bill’s substantive regulatory requirements. However, we object strongly to procedural requirements that will seriously curtail public access rights under the Public Records Act. Significantly, those procedural requirements are not integral to the bill and may even be seen as expendable by oil companies, organized labor and other parties involved in negotiations that produced this legislation.

The bill curtails access rights in the following ways:

1) Current law allows agencies to deny PRA requests for records submitted by corporations that contain “trade secrets”: basically, confidential business information that gives a corporation a competitive advantage over its rivals. But SB 1300 purports to allow refinery owners to designate any information a “trade secret,” regardless of whether it qualifies legally as a trade secret. See proposed Labor Code Section 7873(b)(1). The bill then requires state agencies to deny PRA requests for that information, presumably even if the agency thinks the requested records are not trade secrets. Proposed Labor Code Section 7873(b)(2).

2) Under current law, an agency’s denial of a PRA request does not obligate the requester to challenge the denial in court. The requester has the option to just walk away.  Under the bill, however, the filing of a PRA request for information designated as trade secrets gives the refinery the option to file a preemptive suit to bar release of the records—in which case “it shall name” the PRA requester “as a real party in interest.” Proposed Labor Code Section 7873(d)(2).  The bill thus puts an ordinary PRA requester—a concerned citizen or journalist, for example—at risk of being thrust involuntarily into a costly legal battle against oil companies.

3) Under current law, a PRA requester may be liable for an agency’s legal fees only if the requester’s suit is “clearly frivolous,” a standard that, by design, provides substantial protection to requesters acting in good faith. Under the bill, however, that protection is taken away.  A PRA requester who initiates a PRA lawsuit, or who is dragged into court by a refinery under Proposed Labor Code Section 7873(d)(2), will, if unsuccessful, have to pay, not only her own legal fees, but also the legal fees of the refinery as the “prevailing party.” Proposed Labor Code Section 7873(d)(3).  In other words, a PRA requester who, in good faith, challenges the state’s denial of her record request will be at risk of a bankrupting penalty merely for guessing wrong on the outcome of her case. And a requester subject to Proposed Labor Code Section 7873(d)(2) will be at risk of this penalty even though she never filed, or intended to file, a lawsuit at all.

These are more than minor flaws.  Collectively, they are an absolute deterrent to any public oversight, by means of the PRA, of the regulatory requirements created by the bill. Oil companies’ determinations of what information is, and is not, a trade secret will be de facto immune from judicial review.  And a regrettable precedent will have been set for the selective evisceration, one industry and one agency at a time, of the public’s access rights.

 A version of the bill stripped of the defects described above would warrant your signature. It might also face little opposition in the Legislature. But, as is, Senate Bill 1300 should not be allowed to become law.

FAC respectfully requests that you veto the bill. However, if you choose to sign it, we request that you include a strong signing message urging the Legislature to fix the bill’s defects, thereby restoring PRA access rights in this crucial area of the economy and state regulation of it.

Thank you for your consideration of this letter.

 

Respectfully Submitted,

Peter Scheer

Executive Director

First Amendment Coalition

 

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