Amended  IN  Senate  March 20, 2024

CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Senate Bill
No. 908

Introduced by Senator Cortese

January 08, 2024

An act to add Section 9081 to, and to add Article 6 (commencing with Section 7928.500) to Chapter 14 of Part 5 of Division 10 of Title 1 of, the Government Code, relating to public records. An act to add and repeal Section 11758.05 of the Health and Safety Code, relating to public health.


LEGISLATIVE COUNSEL'S DIGEST


SB 908, as amended, Cortese. Public records: legislative records: electronic messages. Fentanyl: child deaths.
Existing law establishes the State Department of Public Health to implement and administer various programs relating to public health. The department administers the California Overdose Surveillance Dashboard that provides data on state- and local-level drug-related overdose outcomes for California, including, among other data, the number of deaths related to fentanyl overdoses. Existing law requires the department to update the dashboard to reflect additional information, as specified.
This bill would require the department to utilize its data to monitor and identify current trends of fentanyl-related deaths of children 0 to 5 years of age, inclusive. The bill would require the department to develop guidance and spread awareness of the trends to protect and prevent children from fentanyl exposure. The bill would require the department, on or before June 1, 2025, to annually distribute its findings and guidance to county public health departments, county boards of supervisors, and the Legislature. The bill would repeal these provisions on January 1, 2031.

(1)The California Public Records Act requires a state or local agency to make public records available for public inspection, except as specified. Under existing law, a public record includes any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by a state or local agency regardless of physical form or characteristics.

This bill would prohibit an elected or appointed official or employee of a public agency from creating or sending a public record using a nonofficial electronic messaging system unless the official or employee sends a copy of the public record to an official electronic messaging system, as specified. By imposing additional duties on local agencies, the bill would create a state-mandated local program.

(2)The Legislative Open Records Act requires that legislative records be open to inspection at all times during normal business hours of the Legislature and that any person has the right to inspect any legislative record, except as specified. Existing law defines legislative records to mean any writing prepared on or after December 2, 1974, that contains information relating to the conduct of the public’s business prepared, owned, used, or retained by the Legislature.

This bill would prohibit a Member of the Legislature, legislative officer, standing, joint, or select committee or subcommittee of the Senate and Assembly, or agency or employee of the Legislature from creating or sending a legislative record using a nonofficial electronic messaging system unless the Member of the Legislature, legislative officer, standing, joint, or select committee or subcommittee of the Senate and Assembly, or agency or employee of the Legislature sends a copy of the legislative record to an official electronic messaging system, as specified.

(3)The California Constitution requires local agencies, for the purpose of ensuring public access to the meetings of public bodies and the writings of public officials and agencies, to comply with a statutory enactment that amends or enacts laws relating to public records or open meetings and contains findings demonstrating that the enactment furthers the constitutional requirements relating to this purpose.

This bill would make a legislative finding to that effect.

(4)The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YESNO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 11758.05 is added to the Health and Safety Code, to read:

11758.05.
 (a) The department shall utilize its data to monitor and identify current trends of fentanyl-related deaths of children zero to five years of age, inclusive.
(b) The department shall develop guidance and spread awareness of the trends to protect and prevent children from fentanyl exposure.
(c) On or before June 1, 2025, the department shall annually distribute its findings and guidance to county public health departments, county boards of supervisors, and the Legislature. A county public health department or county board of supervisors may, but is not required to, adhere to guidance distributed by the department pursuant to this section.
(d)  A report to be submitted to the Legislature pursuant to subdivision (c) shall be submitted in compliance with Section 9795 of the Government Code.
(e)  Notwithstanding Section 10231.5 of the Government Code, this section shall remain in effect until January 1, 2031, and as of that date is repealed.

SECTION 1.

The Legislature finds and declares all of the following:

(a)It is a fundamental and necessary right of every person in this state to have access to information concerning the conduct of the people’s business, as set forth in the California Public Records Act (Division 10 (commencing with Section 7920.000) of Title 1 of the Government Code) and the Legislative Open Records Act (Article 3.5 (commencing with Section 9070) of Chapter 1.5 of Part 1 of Division 2 of Title 2 of the Government Code).

(b)Many public employees and officials communicate about public business using private electronic devices. The California Supreme Court has held that the mere use of a private electronic device does not transform what would otherwise be a public record into a private record.

(c)As the California Supreme Court explained in City of San Jose v. Superior Court (2017) 2 Cal.5th 608, certain federal laws (See Section 2911 of Title 44 of the United States Code and Section 1236.22 of Title 36 of the Code of Federal Regulations) prohibit the use of personal electronic accounts for official business unless messages are copied or forwarded to an official account.

(d)It is the intent of this act to effectuate the people’s right to access information concerning the conduct of the people’s business, including the conduct of the people’s business done on private electronic devices, pursuant to the California Public Records Act and paragraph (1) of subdivision (b) of Section 3 of Article I of the California Constitution.

SEC. 2.Article 6 (commencing with Section 7928.500) is added to Chapter 14 of Part 5 of Division 10 of Title 1 of the Government Code, to read:
6.Electronic Communication by Agency Officials and Employees
7928.500.

(a)An elected or appointed official or employee of a public agency shall not create or send a public record using a nonofficial electronic messaging system unless the official or employee sends a copy of the public record to an official electronic messaging system within 20 days of the original creation or sending of the public record.

(b)This section may be enforced pursuant to Part 4 (commencing with Section 7923.000).

(c)(1)This section does not limit the disclosure of a public record that is otherwise subject to disclosure under this division.

(2)This section does not require the disclosure of a public record that is not otherwise subject to disclosure under this division.

(d)For the purposes of this section, the following terms shall have the following meanings:

(1)“Electronic message” means an email or a text message.

(2)“Electronic messaging system” means a person, including an internet service provider, that is an intermediary in sending or receiving an electronic message or that provides to end users the ability to send or receive an electronic message.

(3)“Official electronic messaging system” means an electronic messaging system designated by a public agency to be used by an elected or appointed official or employee of a public agency for the official business of the public agency.

(4)“Public record” has the same meaning as defined in Section 7920.530.

SEC. 3.Section 9081 is added to the Government Code, immediately following Section 9080, to read:
9081.

(a)A Member of the Legislature, legislative officer, standing, joint, or select committee or subcommittee of the Senate and Assembly, or agency or employee of the Legislature shall not create or send a legislative record using a nonofficial electronic messaging system unless the Member of the Legislature, legislative officer, standing, joint, or select committee or subcommittee of the Senate and Assembly, or agency or employee of the Legislature sends a copy of the legislative record to an official electronic messaging system within 20 days of the original creation or sending of the legislative record.

(b)This section may be enforced pursuant to Sections 9076, 9077, 9078, and 9079.

(c)(1)This section does not limit the disclosure of a legislative record that is otherwise subject to disclosure under this article.

(2)This section does not require the disclosure of a legislative record that is not otherwise subject to disclosure under this article.

(d)For the purposes of this section, the following terms shall have the following meanings:

(1)“Electronic message” means an email or a text message.

(2)“Electronic messaging system” means a person, including an internet service provider, that is an intermediary in sending or receiving an electronic message or that provides to end users the ability to send or receive an electronic message.

(3)“Legislative record” has the same meaning as defined in subdivision (c) of Section 9072.

(4)“Official electronic messaging system” means an electronic messaging system designated by the Legislature to be used by a Member of the Legislature, legislative officer, or employee of the Legislature for the official business of the Legislature.

SEC. 4.

The Legislature finds and declares that Section 2 of this act, which adds Article 6 (commencing with Section 7928.500) to Chapter 14 of Part 5 of Division 10 of Title 1 of the Government Code, furthers, within the meaning of paragraph (7) of subdivision (b) of Section 3 of Article I of the California Constitution, the purposes of that constitutional section as it relates to the right of public access to the meetings of local public bodies or the writings of local public officials and local agencies. Pursuant to paragraph (7) of subdivision (b) of Section 3 of Article I of the California Constitution, the Legislature makes the following finding:

This act furthers the right of public access to the writings of public officials and agencies by ensuring public access to a public record sent using a nonofficial electronic messaging system.

SEC. 5.

No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district under this act would result from a legislative mandate that is within the scope of paragraph (7) of subdivision (b) of Section 3 of Article I of the California Constitution.