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By Yue Stella Yu, CalMatters

The auditor of California’s High-Speed Rail Authority wants the power to keep certain records confidential, drawing concerns from transparency advocates that the agency could shield vital information about a controversial and costly public infrastructure project from the public.

Assembly Bill 1608, authored by Assembly Transportation Committee Chair Lori Wilson, would allow the inspector general overseeing the high-speed rail authority to withhold records that the official believes would “reveal weaknesses” that could harm the state or benefit someone inappropriately. 

The bill would also prevent the release of internal discussions and “personal papers and correspondence” if the person involved submits a written request to keep their records private.  

The legislation appears to have the blessing of Gov. Gavin Newsom, whose administration released a nearly identical budget trailer bill — a vehicle for the governor and legislative leaders to adopt major reforms swiftly with minimal public input — on Monday. The language for both proposals came from the inspector general’s office, said H.D. Palmer, spokesperson of the state Department of Finance.

The Office of the Inspector General of High-Speed Rail Authority, which audits, monitors and makes policy recommendations to the authority, was formed in 2022 after Assembly Democrats held bullet train funding hostage in exchange for increased oversight. 

The rail line, designed to connect San Francisco and Los Angeles, was approved by voters in 2008. At the time, it was estimated to cost $33 billion and be completed by 2020. It is now estimated to cost more than $100 billion, with only a 171-mile segment connecting Merced and Bakersfield planned for completion by 2033.

The project delays and ever-increasing price tag have frustrated both Democrats and Republicans. Former Assembly Speaker Anthony Rendon, a Los Angeles Democrat who held up the funding in 2022, said at the time there was “no confidence” in the project. U.S. Rep. Kevin Kiley, a Rocklin Republican, has fiercely criticized it as a waste of money and introduced legislation to gut federal funding for it. 

Wilson, a Suisun City Democrat and a former county auditor, said her bill would empower the inspector general’s office and shield it from public records requests for sensitive data, such as whistleblowers’ identities, details of fraud, documents regarding pending litigation and records about security risks. High-speed rail authority officials often will not turn over sensitive records to the oversight agency out of fear that the office would be compelled to release them, forcing the inspector general’s office to jump through hoops to obtain information for audits, she argued. 

“The only way we’ll get the level of transparency and the accountability that the Legislature requires is to make sure that our (inspector general’s office), who are technically the eyes and ears of the public … have every protection they need to be able to take the full deep dive without hindrance,” Wilson told CalMatters in an interview last week.

Palmer echoed Wilson’s point, arguing that the governor’s proposal aims to allow the inspector general’s office to “communicate sensitive findings to external bodies in position to take corrective action.”

But some good government groups see the measure as offering the inspector general’s office blanket authority to withhold anything it doesn’t want to disclose. 

“This is a wholesale atom bomb on disclosure,” said Chuck Champion, president of the California News Publishers Association.

And the measure is drawing opposition from Republicans who already consider the project a failure. Assemblymember Alexandra Macedo, a Visalia Republican, said it is “insulting” that the project began when she was in middle school and remains far from complete. She called the empty concrete high-speed rail structures throughout her district a “modern day Stonehenge.”

“As far as I’m concerned, every ounce of this project should be available for public consumption and should be presented factually and in entirety to the entire legislative body,” she said.

Officials from the High-Speed Rail Authority and the inspector general that oversees it declined CalMatters’ request for comment. Newsom’s office also did not respond to CalMatters’ questions.

The bill is the latest in a series of legislative attempts to shield records and agencies from the public. Last year, lawmakers passed laws that loosened public meeting requirements for various groups, from local governments to research review organizations, and exempted insurers from having to disclose information they report to the Legislature. State Treasurer Fiona Ma sponsored a measure to establish a new infrastructure agency within her office while exempting much of its operations from public disclosure, a bill that was ultimately watered down and killed last year. 

The California Public Records Act, which applies to all state and local agencies except the state Legislature and judicial offices, already exempts disclosure of various types of sensitive information Wilson’s measure aims to protect, said Ginny LaRoe, advocacy director at the First Amendment Coalition, which champions press freedom and transparency. 

For example, state law broadly allows agencies to withhold records when they believe it serves the public interest. There are also specific protections for preliminary drafts and internal discussions, trade secrets and documents related to pending litigation involving a public agency, which are disclosable once a lawsuit is resolved.

But interpreting the public records law would take up a lot of the inspector general’s capacity, said Wilson’s chief of staff Taylor Woolfork.

“The bill’s objective is for this small oversight body to concentrate on generating meaningful reports that strengthen the high speed rail program, not to divert limited resources toward interpreting complex CPRA questions or defending disclosure decisions in court,” he said in an email.

While Woolfork acknowledged the existing exemptions for the agency in the public records law, he said it does not go far enough to protect the inspector general’s office. Under current law, if the high-speed rail authority is being sued, the inspector general’s office could be required to release information because the agency itself isn’t being sued, he said.  

Both proposals would allow people who communicate with the inspector general’s office to stay confidential as long as they make a written request, a practice in laws that govern the state auditor’s office and inspectors general at other agencies, such as the state departments of transportation and corrections and rehabilitation. 

But the decision to withhold that information should be based on a set of “objective legitimate criteria … independent of someone’s personal wishes,” LaRoe said.

“A whistleblower … understandably may have fear of coming forward with important information about waste, fraud or abuse, but that doesn’t mean that they should unilaterally be able to control what the public has access to.”

LaRoe also took issue with allowing the inspector general to shield information due to potential “weaknesses” such as “information security, physical security, fraud detection controls, or pending litigation” — language that CalMatters could not find anywhere else in state public records access laws.

“On its face, I could see an agency refusing to disclose information because it’s embarrassing, because it shows a weakness,” LaRoe said. “Too often, we see agencies interpreting words in ways that ultimately protect people or decisions that maybe look embarrassing or are uncomfortable or create controversy.”

When asked about the language, Wilson said she expects the proposal will be  “honed in” on through the legislative process. “This was, we felt, a good starting point,” she said.

But it is troubling whenever lawmakers seek to further shield public agencies from disclosure requirements — especially a watchdog agency overseeing such a controversial project, LaRoe and Champion said.

“If any project should have intense transparency and scrutiny, it’s the high-speed rail,” Champion said. “This project has been a disaster from jump street. And what else is in there that we have not yet found that they could tuck into this loophole?”

This article was originally published on CalMatters and was republished under the Creative Commons Attribution-NonCommercial-NoDerivatives license.