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Bill Would Provide More Access to Electronic Records

California's S.B. 323 would enhance electronic access to public records, but does it ask too much of state and local government?

While many states and the federal government continue to wrestle with issues concerning access to electronic records, California has an opportunity to take a step in the right direction by adopting amendments to the Public Records Act sponsored by Sen. Quentin Kopp (Ind - San Francisco/San Mateo) designed to enhance electronic access to public records. Introduced Feb. 10, SB 323 would require agencies at the state, county, city or local level to provide electronic records in any form in which they currently exist or "any forms used by the agency to make copies for its own use" - an implicit instruction that agencies must provide records in formats used by the agency without regard to whether the specific record requested is currently, or ever will be, in that format.

Kopp's amendments would require agencies to "ensure, to the extent technologically and economically feasible, that systems used to collect and hold public records purchased or created by the agency after January 1, 1996, be designed to ensure ease of public access to public records." To accomplish this, agencies would be required to use computer-assisted redaction of exempt information from otherwise disclosable records, provide electronic records in industry-standard formats, and allow for timely public access by making non-exempt records available "by way of the largest, nonprofit, nonproprietary, public computer network," presumably the Internet.

However, records would be placed on a network in such a way as to "ensure the protection and security of all data. . ." Agencies would not be required to violate copyright, patent or trade secret rights or any contractual provisions made with a vendor prior to Jan. 1, 1996. Nor would they be required to provide technical support or documentation for use of the network. But they would be responsible for providing documentation for any built-in software explanations that affected the requester's ability to use the public records of that agency.

While the bill had its first hearing March 28 and further hearings at the end of April, the battle lines so far have pit the California Newspaper Publishers Association and the First Amendment Coalition against the League of California Cities. During several days of discussion on a listserver devoted to access issues, Ariel Calonne, city attorney of Palo Alto and the point man for the league on this issue, observed that the bill "has been intentionally written in a way that will make it impossible (in many instances) for cities to protect the privacy of ordinary citizens." Noting that California has a constitutional right of privacy, Calonne asserted that "uncontrolled access to computer records, which is what SB 323 will force, is a direct invasion of our privacy."



Calonne's concern about privacy is perfectly valid. It goes without saying that computerized access to personal information is potentially more invasive than it would be in a paper environment. But to a large extent, the increased potential for invasion of privacy stems from the ability to amass scattered items of personal information to create sophisticated profiles of individuals. To open the floodgates and allow unfettered access to personal information could well be catastrophic. But Calonne's prediction need not come to pass and the language of the bill as it currently exists does not suggest that it will.

The Kopp bill is not strikingly different than policy developments at the federal level and in other states. A bill sponsored by Sen. Patrick Leahy (D-Vt) passed the Senate last session but was not taken up by the House. That bill would have required agencies to conduct searches of their electronic records, provide records in the requester's choice of format and, going beyond Kopp's bill, required agencies to honor a format choice even if the record did not exist in that format as long as to do so would be "reasonable." The Kopp bill talks in terms of technological and economic feasibility, fuzzy terms that could easily postpone the advent of any major changes in electronic access.



CONNECTICUT FOI

Several years ago Connecticut passed a law giving its Freedom of Information Commission responsibility for assuring that new computer systems were designed with public access in mind. A court in that state has already determined that a contractor-operated system that fell far below the prospective standards for access was acceptable because the contract terms under which it was operated predated the new law. The Kopp bill, if anything, contains language milder than that of the Connecticut statute.

Conceptually, computers should make the flow of information easier and more efficient. Certainly that is at least one of the premises that has driven the expansion of the Internet. But new technologies come with their share of problems, and how to protect information that should not be widely disseminated is certainly one of the problems that must be resolved before electronic access can be considered truly acceptable. The Kopp bill, by requiring agencies to offer greater electronic access within the framework of the existing exemptions and exceptions of the Public Records Act, provides a framework for reconciling and resolving some of these potential problems.

Harry Hammitt is editor/publisher of Access Reports, a biweekly newsletter covering open government laws and information policy issues. Harry can be reached at 804/384-5334 or via Compuserve at 75111.743@compuserve.com