As of January 1, 2018, AB 492 extends the law to misleading solicitations to obtain public records to alert Californians and businesses that these are not from the relevant government agency with custody of the records and do not require the consumer to take any action.
Misleading solicitations impersonating the office of the California Secretary of State and other government agencies directed at Californians and businesses to buy public records by a certain date from nongovernmental entities are prevalent according to the Department of Justice, which tracks misleading solicitations.
These fraudulent solicitations are intended to scare the unsuspecting into paying the solicitor exorbitant fees to obtain public records on the payor’s behalf to avoid adverse consequences. They imply a legitimate connection to or an endorsement by the government agency that has custody of the record(s), creating a false sense of obligation to buy from the solicitor. Fictitious “respond by” dates create an urgency to act. Delete: In most cases there is no need to obtain a public record.
Hiring a nongovernmental entity to obtain a public record on your behalf for a fee is perfectly legal. However, there is no legal obligation to obtain a public record. The California Public Records Act makes public records accessible directly from the government agency with custody of the record(s) upon written request, unless the records are exempt from disclosure. The nominal fee is for duplication costs only.
Detailed disclosures are now required on solicitations to provide public records to protect consumers from solicitations using unfair business practices. This will help Californians and businesses discern a fraudulent solicitation from a lawful offer to obtain a public record on another’s behalf.
This law overlaps with AB 72 enacted under Business and Professions Code section 17533.6, as amended. It enhances the technical size and style requirements for disclosures on solicitations to purchase public records from a nongovernmental entity. Solicitations may not contain language or content that imply a connection with or endorsement from the governmental agency with custody of the records. Now, solicitations must conspicuously include the name and physical address of the solicitor, the name and contact information for the governmental agency with custody of the record(s) and the fee charged by that government agency. The solicitations may not be presented on a form or contain due dates.
The Attorney General, district attorneys or city attorneys may bring an action against any person who violates this law to seek a full refund to the person(s) affected and civil penalties up to $100 for each document distributed for a first violation and up to $200 for each document distributed for subsequent violations.
Action to Take
Reporting fraud is key. Report all fraudulent solicitations to the Attorney General and your local district attorney. Find out if they intend to bring an action against the violator and whether they will ask the court for a full refund of monies paid to the person(s) affected.
California businesses that receive one of these fraudulent solicitation letters or that have paid for and received document(s) should submit a written complaint along with the entire solicitation (including the solicitation letter, the outer and return envelopes, and all related documents if available, and a copy of any documents received) to the California Attorney General, Public Inquiry Unit, P.O. Box 944255, Sacramento, California 94244–2550. A Consumer Complaint Against Business/Corporation can be completed online and printed to mail.