CACEO May 2015

Clerk of the Board Tracking "Open Data"

In May, 2013, President Obama issued an Executive Order entitled "Making 'Open and Machine Readable' the New Default for Government Information".

The underlying justification for the Executive Order was that “[o]penness in government strengthens our democracy, promotes the delivery of efficient and effective services to the public, and contributes to economic growth.”  In other words, federal government agencies were to make publicly disclosable government data conveniently available to the public on the Web in a machine readable, usable format.

Since 2013, “open data” initiatives have been launched by many state and local government agencies.  This year, the California Legislature jumped into the act with the introduction of two bills, AB 169 (Maienschein) LINK and SB 272 (Hertzberg) LINK, both of which would amend the California Public Records Act (CPRA).  And that’s where the dilemma arises:  The bills would make data readily available to the public (a good thing), but they would do that by amending the CPRA, which is centered on the concept of records, not data (possibly a bad thing).

AB 169 would require a local agency that voluntarily posts a public record that the agency describes as “open” on its Web site to post the public record in a format that meets the requirements of the bill, including that the format is able to be retrieved, downloaded, indexed, and searched by a commonly used Internet search application.

SB 272 would require each local agency (but not state agency!), in implementing the CPRA, to create a catalog of enterprise systems, as defined, to make the catalog available to the public in the office of the clerk of the agency’s legislative body (guess who?), and to post the catalog on the local agency’s Web site.  SB 272 would require the catalog to disclose a list of the enterprise systems used by the agency, including the current system vendor; the current system product; a brief statement of the system’s purpose; a general description of categories, modules, or layers of data; the department that serves as the system’s primary custodian; how frequently system data is collected; and how frequently system data is updated. 

It all sounds very good, but if these bills are enacted, will counties and other local agencies find themselves in endless argument and litigation over such issues as determining whether a piece of  “data” or “data sets” constitute an “identifiable record” in accordance with the CPRA?  And what will public agencies have to do – and how much will it cost in unreimbursable mandates – in order to ensure that non-disclosable “data” or “records” are kept confidential through redacting or segregating “identifiable” records – or is it just data?  Hmmm.

The Clerk of the Board Legislative Committee took a position of “Concerns” on both bills.  CACEO is supportive of the concept of open data, but our members believe that it is a mistake to insert programs of data management and access to data into the CPRA, which has always dealt with records.  Furthermore, SB 272 contains some additional problematic language including making the clerk of the legislative body the custodian (and maybe complier?) of the catalog of data systems that would be prepared pursuant to the bill.  Moreover, SB 272 would certainly create an additional unfunded mandate of local agencies.  Senator Hertzberg’s bill also requires additional definition of terms in order to make the meaning and intent of the bill clear and manageable.