Frequently Asked Questions About the Public Records Act
Craig Labadie is city attorney for Concord and president of the League’s City Attorneys Department. He can be reached at clabadie@ci.concord.ca.us. Labadie gratefully acknowledges the assistance provided by Kourtney Burdick, the League’s deputy general counsel, in drafting this article.
The purpose of the Public Records Act (PRA) is to give the public access to information that enables them to monitor the functioning of their government.1 Its fundamental precept is that governmental records shall be disclosed to the public, upon request, unless there is a specific reason not to do so.2 Most of the reasons for withholding a record are set forth in the PRA.
Cities face some commonly asked questions when handling a request for public records. The answers provided here offer guidance but should not be substituted for advice from a city attorney.
1. The requester is claiming a legal right to a copy of a document immediately. I thought we had 10 days in which to respond. Must I provide the document right now?
It depends. The PRA does not give a specific timeline for producing disclosable records. Rather, it provides that records must be made “promptly available” to the requester.3 What is “promptly available” depends on the circumstances. For example, a request for an existing city council meeting agenda can likely be granted immediately. In contrast, a request for a copy of a file on a particular land use project may take longer because of the need to locate, retrieve and review the file to ensure that no nondisclosable materials are released.
It is a common misconception that records must be produced within 10 days. Actually, the 10-day rule refers to the amount of time an agency has to determine whether a request for copies seeks disclosable records.4 The 10-day period begins as soon as the agency receives a request.5 In unusual circumstances, the timeline may be extended.6 A specific provision in the Political Reform Act provides for an abbreviated time frame (two business days) to produce certain conflict-of-interest disclosure forms.7
2. It’s sometimes very expensive to comply with a public records request when taking into account staff time spent researching, locating and making copies of the file. Can we charge the requester to recoup the entire cost of responding to a public records request?
No. Although responding to a public records request may be time consuming and costly, the agency may only charge for the “direct costs” of copying the materials.8 Direct costs cover the expense of running the copying machine.9 It does not include the necessary tasks of retrieving, inspecting and handling the file from which the copy is extracted.10 The one exception to this rule relates to extracting information from electronic records. In that case, the requester may be required to pay the cost of programming and other computer services that are needed to produce the requested copy.11
3. A person requesting records from our department got very angry when we told him we didn’t have those records and that he would have to submit his request to another department in the city. He claimed that he should not have to go to another department and that our department should provide him with the requested records. Were we wrong to refer him to a different department?
No. The PRA obligates a local agency to supply those disclosable records that are in the agency’s “possession.”12 Nothing in the law requires “one-stop shopping,” nor may it be practical given the fact that not all city departments maintain all city records. Staff should, if possible, refer the requester to the proper holder of the records.13
4. Our city has a policy that requires people requesting records to fill out a form providing their name, affiliation, telephone number and what records they are seeking. A person has objected to filling out this form and claims we are not allowed to request this information under the PRA. Is she correct?
Yes and no. She is correct in that a local agency may not require that a requester provide his or her name or other identifying information as a condition of receiving the records.14 In addition, an agency may not condition the release of documents on receiving a written request. However, the requester must provide sufficient information to enable the agency to determine what identifiable records are sought. Some cities make it a practice to fill out a form on behalf of the requester to document the request and the city’s response.
Obviously, exchanging this information helps both the agency and the requester. Among other things, having this information allows the agency to confirm its understanding of the request, in writing, and thereby eliminate any confusion up front. The information also allows the agency to communicate with the requester regarding its determination of whether the records are disclosable. If provided, the contact information allows the agency to inform the requester about when the records will be available.
5. The requester has asked our department to mail her copies of certain public records. She has promised to mail us a check when she receives the copies. Must we mail her the records before she pays for them?
No. A city may insist upon payment for the direct costs of the copies prior to giving them to the requester.15
6. A person has requested the e-mails received by and sent from the council members’ e-mail addresses, provided to them by the city, for the past six months. Are these public records, and are we required to disclose them?
Yes. Assuming the e-mails contain information relating to the conduct of the public’s business and no exemption applies, the e-mails are public records and must be disclosed.16
7. When reviewing a council member’s e-mails in response to a re- quest, we found several e-mails of a highly personal nature unrelated to any city business. Are we required to disclose these messages?
No. Purely personal information that is unrelated to the “conduct of the public’s business” need not be disclosed.17
8. What should we do if a person requests copies of e-mails pertaining to city business that were sent or received on a council member’s private personal computer?
It is unclear. There are differing opinions as to whether these types of e-mails are subject to disclosure; however, a reason able argument can be made that they are not public records if no city equipment or staff resources were utilized in creating or storing the electronic communications, regardless of the subject matter. This argument relies on the PRA’s definition of “public records” as documents that are “prepared, owned, used or retained by any state or local agency.”18 As with all close questions, you should consult your city attorney for a legal review in light of the particular facts, circumstances, and local policies and regulations that apply to a specific request.
9. A person has requested the tele phone record logs for the council members’ city-issued cell phones. Are we required to disclose these records?
Yes and no. You are required to disclose the phone bills. Although some attorneys may disagree, it is arguable that you can redact (or edit) the telephone numbers of persons the council member talked to.19 Redaction in this instance is authorized by the “deliberative process privilege” exemption.20 The idea behind this exemption is that disclosing this information could discourage a council member from engaging in candid discussions with different people, thereby undermining the member’s ability to perform his or her job.
10. A person has requested a record that does not exist, but which could be created from information contained in several other documents that exist in city files. These other documents contain additional information that is not relevant to the person’s request. Are we required to pull the relevant information from these documents and create a record that is responsive to the request?
No. The PRA does not require an agency to create new records. In this situation, assuming the irrelevant information relates to “the conduct of the public’s business,” and no exemption applies, all the documents containing requested information must be disclosed. The requester may then extract the desired information.
If an exemption applies to some of the materials, the city may redact the exempt information. The fact that it’s time consuming to separate the exempt from the non-exempt materials does not relieve an agency of its disclosure obligation, unless segregating the information is so onerous that it clearly outweighs the public interest in disclosure.21
Conclusion
The Public Records Act is an indispensable component of California’s commitment to open government. To help cities navigate it, the League’s City Attorneys Department is in the process of drafting a new publication on the PRA, which is expected to be published and available for purchase next spring. In the meantime, if you have any questions about the PRA, don’t hesitate to contact your city attorney.
Footnotes:
[1] See Cal. Gov’t Code § 6250; Cal. Atty Gen., Summary of the California Public Records Act (2004).
[2] Id.
[3] Cal. Gov’t Code § 6253(b).
[4] Cal. Gov’t Code § 6253(c).
[5] Id.
[6] Id.
[7] Cal. Gov’t Code § 81008(a).
[8] Cal. Gov’t Code § 6253(b).
[9] N. County Parents Org. for Children with Special Needs v. Dep’t Educ., 23 Cal. App. 4th 144, 148 (1994).
[10] Id.
[11] Cal. Gov’t Code § 6253.9(b).
[12] See Cal. Gov’t Code § 6253(c); Cal. First Amendment Coalition v. Super. Ct., 67 Cal. App. 4th 159, 165 (1998) (stating requests under the Public Records Act must describe records clearly enough to allow the agency to determine whether the requested items are in the agency’s “control”).
[13] Cal. Gov’t Code § 6253.1(a)(1).
[14] State Bd. of Equalization v. Super. Ct., 10 Cal. App. 4th 1177, 1192 (1992).
[15] See Cal. Gov’t Code § 6253(b).
[16] Cal. Gov’t Code §§ 6252(e), 6252(g).
[17] See Cal. Gov’t Code § 6252(e); Braun v. City of Taft, 154 Cal. App. 3d 332, 340 (1984).
[18] Cal. Gov’t Code § 6252(e).
[19] Rogers v. Super. Ct., 19 Cal. App. 4th 469, 482 (1993).
[20] It should be noted that some attorneys contend Proposition 59, Cal. Const. Art. I, § 3, abolished the deliberative-process privilege. The proposition provides, among other things, that statutes, court rules and other authorities (including those currently in effect) shall be broadly construed if it furthers the people’s right of access, and narrowly construed if it limits the right of access. There are no court decisions addressing the measure’s effect on the deliberative process privilege.
[21] State Bd. of Equalization v. Super. Ct., 10 Cal. App. 4th 1177, 1190, n.14 (1992); see Cal. Gov’t Code §§ 6253(a), 6255(a).
About Legal Notes
This column is provided as general information and not as legal advice. The law is constantly evolving, and attorneys can and do disagree about what the law requires. Local agencies interested in determining how the law applies in a particular situation should consult their local agency attorneys.
This article appears in the July 2007 issue of Western
City
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