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california legislation > SB 8

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Date of Hearing: July 6, 2011

ASSEMBLY COMMITTEE ON GOVERNMENTAL ORGANIZATION
Isadore Hall, Chair
SB 8 (Yee) - As Amended: June 23, 2011

SENATE VOTE : 38-1

SUBJECT
: Public records: auxiliary organizations and UC campus
foundations.

SUMMARY : Requires records maintained by an auxiliary
organization of the California State University (CSU),
California Community Colleges (CCC), and CCC districts and a
campus foundation of the University of California (UC) be
available to the public consistent with the California Public
Records Act (CPRA), excepting specified donor information.
Specifically, this bill :

1) Finds that CSU and CCC auxiliaries and UC foundations are
legally separate entities that are essential and integral to the
missions of CSU, CCC, and UC, respectively.

2) Requires records, as defined, maintained by a CSU or CCC
auxiliary organization or UC campus foundation to be made
available to the public and requires the entities to follow
specified timelines and procedures for responding to public
records requests, consistent with CPRA.

3) Exempts from disclosure the following records maintained by a
CSU or CCC auxiliary or UC campus foundation:

a) Existing CPRA exemptions as set forth in Government
Code 6254-6255, inclusive;

b) Information that would disclose the identity of a
donor, prospective donor, or volunteer;

c) Personal financial information and gift and estate
planning information of a prospective donor or volunteer;

d) Personal information related to a donor's private
trusts or a donor's private annuities administered by an
auxiliary or campus foundation;









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e) Information related to fundraising plans, fundraising
research, and solicitation strategies to the extent these
activities are not already protected under existing law, as
specified; and,

f) The identity of students and alumni to the extent
that this information is already protected, excluding a
part-time or full-time employee of the auxiliary or campus
foundation or a student who participates in a legislative body
of a student body organization, as defined.

4) Stipulates that these provisions do not exempt disclosure of
the following information:

a) The amount and date of a donation;

b) Any donor-designated use or purpose of a donation and
any other donor-designated restrictions on the use of a
donation;

c) The identity of a donor who, in any fiscal year,
makes a gift or gifts, in a quid pro quo arrangement, where
either the value of the benefit received is greater than $2,500,

adjusted for inflation as specified, or the benefit would
be impermissible under existing law;

d) Self-dealing transactions as set forth in existing
law, as specified; and,

e) Any instance in which a volunteer or donor of a gift
is awarded, within five years of the date of the service or
gift, a contract from the auxiliary or campus foundation that
was not subject to competitive bidding.

5) States trade secrets, as defined shall not be subject to
disclosure. This information shall be redacted from auxiliary
organization records before disclosure.

6) Authorizes proceedings for injunctive or declarative relief
to enforce the right to inspect or receive a copy of a record
maintained by an auxiliary or campus foundation, including the
awarding of attorney's fees, consistent with the authority
provided in CPRA.









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7) Provides that when an auxiliary or campus foundation
discloses a record that is exempt from this bill, this
disclosure shall constitute a waiver for the exemptions
specified in this bill, excluding the following information:

a) Disclosures made to a donor or prospective donor with
regard to that donor's donation or prospective donation to
an auxiliary organization;

b) Disclosures made to a volunteer or prospective
volunteer with respect to that volunteer's services being
provided to the auxiliary organization;

c) Disclosures made through other legal proceedings or
as otherwise required by law;

d) Disclosures within the scope of a disclosure required
by law that limits disclosure of specified writings to
certain purposes;

e) Disclosures to an auditor conducting an audit, as
defined; or

f) Disclosures to a bank or similar financial
institution, as specified.

8) Provides that these provisions do not apply to any records
subject to a request made pursuant to CPRA.

9) Defines a UC campus foundation as the following corporations
organized under the laws of the State of California: University
of California, Berkeley Foundation, UC Davis Foundation, The
University of California, Irvine Foundation, The UCLA
Foundation, University of California, Merced Foundation, UC
Riverside Foundation, UC San Diego Foundation, University of
California, San Francisco Foundation, UC Santa Barbara
Foundation, UC Santa Cruz Foundation, and any other foundation
authorized by the Regents of the University of California.

EXISTING LAW
:

1) The California Public Records Act (CPRA) governs the
disclosure of information collected and maintained by public
agencies. Generally, all public records are accessible to the
public upon request, unless the record requested is exempt from








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public disclosure. There are 30 general categories of documents
or information that are exempt from disclosure, essentially due
to the character of the information. Unless it is shown that
the public's interest in disclosure outweighs the public's
interest in non-disclosure of the information, the exempt
information may be withheld by the public agency that has
custody of the information.

2) Defines state agency, for purposes of the CPRA, to include
every state officer, department, division, bureau, board, and
commission or other state body or agency, except for the
Legislature and the Judiciary. The California State University,
the University of California, and the California Community
Colleges are considered to be state agencies for this purpose.

3) Authorizes the University of California, the California
State University, and the California Community Colleges to form
auxiliary organizations for the various purposes related to
their educational mission.

FISCAL EFFECT : Unknown. This bill has been tagged non-fiscal
by Legislative Counsel.

COMMENTS :

Purpose of the bill : According to the author, the public has
been unable to hold auxiliaries and foundations accountable for
their activities, yet these quasi-governmental entities provide
the same types of essential services to students and the public
that the colleges and universities provide. Moreover, these
entities use public resources to perform their activities, e.g.,
university office space, equipment, personnel, etc.

Auxiliaries and campus foundations : CSU and CCC auxiliary
organizations and UC campus foundations are formed to further
the educational missions of their institutions. Examples
include alumni groups, student associations, faculty
organizations, and groups that bear the name of the particular
college or university or campus. These groups operate as
nonprofit public benefit corporations chartered under the
California Nonprofit Public Benefit Corporation Law and must
meet certain standards of operation such as: (1) auditing and
financial reporting procedures with oversight by a certified
public accountant; (2) expenditures that are in accordance with
policies delineated by the governing body; (3) meetings of








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boards and committees that are open to the public; and (4)
conformity of operational procedures with regulations
established by the governing body.

UC auxiliaries differ from those at CSU and CCC; they engage in
commercial-type activities, such as parking operations and
certain athletics department operations, which are not separate,
independent entities. As such, these "auxiliary enterprises"
are already subject to CPRA.

Background : A 2001 court decision, CSU Fresno Association v.
Superior Court, found that CPRA applies only to state agencies
and would need to be specifically applied to campus auxiliary
organizations in statute. In the past decade, there have been
numerous attempts to obtain records from CSU auxiliary
organizations that have been denied and several legislative
attempts to directly apply CPRA to auxiliaries and campus
foundations (SB 218, Yee, 2010 and SB 330, Yee, 2009) that
either died in the legislative process or were vetoed over
concerns about the appropriateness of subjecting private
organizations to CPRA and jeopardizing these entities' ability
to raise funds.

New approach in 2011 : SB 8 is the result of negotiations
between the author, the sponsors (the California Newspaper
Publishers Association and the California Faculty Association),
UC, CSU, and CCC. This new approach does not subject
auxiliaries and campus foundations to CPRA; instead, this bill
recreates and applies CPRA provisions to these entities in the
Education Code. This bill also exempts donor information unique
to these entities from disclosure, except under specified
circumstances.

CPRA : CPRA presumes that all records held by government are
accessible to the public unless expressly made exempt from
disclosure. It gives members of the public two main rights: the
right to inspect records free of charge and the right to obtain
a copy of records after paying for the direct costs of
duplication or a statutory fee. The law gives agencies time
periods for responding to a request; once a request is made, the
agency must either produce the records in a reasonable amount of
time, as specified, or justify its decision to withhold the
record by showing that the record is exempt under an express
provision of law or that the public interest in disclosure of
the record is clearly outweighed by the public interest in








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nondisclosure. There are 30 general categories of documents or
information that are exempt from disclosure, essentially due to
the character of the information. CPRA allows a member of the
public to sue to enforce the law and provides that a prevailing
plaintiff can recover attorney fees and costs of bringing the
suit.

Donor exemptions : As noted above, UC and CSU opposed previous
legislation due to concerns about the possible "chilling effect"
on donor and volunteer contributions. This bill exempts from
disclosure information that would disclose the identity of
a donor, prospective donor, or volunteer, except for the
following: 1)The amount and date of a donation; 2) Any
donor-designated use or purpose of a donation and any other
donor-designated restrictions on the use of a donation; 3)
Self-dealing transactions as set forth in existing law, as
specified; 4) Any instance in which a volunteer or donor of a
gift is awarded, within five years of the date of the service or
gift, a contract from the auxiliary or campus foundation that
was not subject to competitive bidding; and, 5) he identity of a
donor who, in any fiscal year, makes a gift or gifts, in a quid
pro quo arrangement, where either the value of the benefit
received is greater than $2,500, adjustedfor inflation
as specified, or the benefit would be impermissible under
existing law. This provision is designed to exclude season
ticketholders for athletic events, who often must donate a
specified amount (usually $10,000 to $12,500) above the cost of
their tickets in order to receive preferred seats. Since the
IRS values these contributions at 20% of the value of the
donation, $2,500 was selected to ensure that this bill did not
capture these donors who participate in
well-publicized fundraising campaigns.

SB 8 differs slightly from CPRA in that it adds information
supplied as part of an audit or to a financial institution to
the list of items that do not constitute a waiver from the
exemptions specified in this bill.

In support : The University of California (UC) writes in
support, "this bill as amended, recognizes the need for donor
privacy and the unique role that UC Campus Foundations play in
supporting the educational, research, and public service mission
of the UC. SB 8 now establishes a responsible process for
requests by the public that will be codified in the Education
Code, which UC believes is the appropriate location for








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provisions covering education related non-profit organizations.
While the bill is not perfect and may not include every
provision that we believe could avoid possibly unintended
consequences, we are satisfied that our Foundations can, in good
faith, adjust to the new provisions and continue to provide the
type of transparency that is appropriate without jeopardizing
donor privacy."

The California State University (CSU) states, this bill contains
language which is critical to our ability to raise revenues and
not put us at a disadvantage with other nonprofits and private
colleges and universities. This bill also maintains the state's
long-term commitment to protecting the personal privacy of
individuals, donors, volunteers, and vendor partnerships.

Prior legislation : SB 330 (Yee), 2009-2010 Legislative Session,
passed the Senate 22-10 and the Assembly 71-0 was vetoed by the
Governor. Would have required auxiliary organizations of the
University of California (UC), the California State University
(CSU), and the California Community Colleges (CCC) to comply
with the CPRA except in specified instances.

SB 218 (Yee) of 2009-2010 Legislative Session, passed the Senate
33-1 and the Assembly 76-0 was vetoed by the Governor. This
bill would have included in the CPRA auxiliary organizations of
the University of California (UC), the California State
University (CSU), and the California Community Colleges (CCC),
except as specified.

REGISTERED SUPPORT / OPPOSITION
:

Support

Academic Professionals of California
American Federation of State, County and Municipal Employees
California Broadcasters Association
California Faculty Association
California Federation of Teachers
California Newspaper Publishers Association
California Nurses Association
California State Pipe Trades Council
California State University
California State University Employees' Union
California Taxpayers Association
California Teachers Association








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Californians Aware
Coalition of California Utility Employees
Eric Mar, San Francisco District 1 Supervisor
International Brotherhood of Electrical Workers
International Union of Elevator Constructors
Pacific Media Workers Guild
SEIU United Service Workers West
University of California
University of California Student Association
Utility Workers Union of America
Western States Council of Sheet Metal Workers

Opposition

None on file


Analysis Prepared by
: Eric Johnson / G. O. / (916) 319-2531