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Does The DBO's Draft Tribal Consultation Policy Violate the Public Records Act?

Three years ago, California Governor Edmund G. Brown Jr. issued Executive Order B-10-11.  Among other things, Governor Brown ordered:

that it is the policy of this Administration that every state agency and department subject to my executive control shall encourage communication and consultation with California Indian Tribes. Agencies and departments shall permit elected officials and other representatives of tribal governments to provide meaningful input into the development of legislation, regulations, rules, and policies on matters that may affect tribal communities.

Late last month, the California Department of Business Oversight issued this draft Tribal Consultation Policy pursuant to the Governor's executive order.  I was immediately struck by the fact that the policy seemed to provide Tribes more protection from disclosure than is permitted under California's Public Records Act, Cal. Govt. Code § 6250 et seq. (On Monday, I wrote about the ancient antecedents of the PRA.).  In particular, the draft policy seems to commit the DBO to consult with the Tribes before releasing any information:

If the Department receives any legally enforceable demand or request for information that the Department received from a Tribe, the Department shall promptly notify the Tribe in writing and provide a copy of the demand or request.  Before complying with such a demand or request, the Department shall (a) consult with the Tribe to allow for a reasonable opportunity to respond to the demand or request, and (b) allow the Tribe to assert all reasonable and appropriate legal defenses, exemptions or privileges.

This seems to run counter to a fundamental precept of the PRA - government records must be disclosed to the public, upon request, unless a specific statutory exception applies.

Even if the policy is limited to confidential information, it is inconsistent with the DBO's own rule governing confidential information.  10 CCR §§ 250.10 & 250.10.5.

Comments on the draft policy may be sent to: DBO Tribal Liaison Tony Lehtonen at 916-322-5979, at, or by mail to 1515 K Street, Suite 200, Sacramento, CA 95814.

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30172DBAB0084D3A8F39D7AF0A8E79BC.ashx Keith Paul Bishop
Partner at Allen Matkins
(949) 353-6328
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