Public Records Disclosure
Purpose: Make “public records” available to the public
Primary Law: Public Records Act, Government Code § 6250-6276
- Public Records Act is different from the (Federal) Freedom of Information Act
- Because many people confuse the two, however, public agencies should treat requests "under the Freedom of Information Act" as invoking the Public Records Act.
- A "Public Record" is "any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics."
- Includes microfilm, microfiche, or computer data
- A “public record” must be disclosed to a member of the public for inspection at all times during office hours unless a record is exempt.
- Reasonably segregable portions” must be made available if parts of the records are exempt.
- If a document is truly a “public record,” then the person requesting it does not have to state a reason for wanting to see it.
- Agencies have 10 days to respond to the request. Once payment is made, agencies should promptly produce the record, although many, if not, most records and copies should be produced immediately or as soon as reasonably possible when a request is made.
- In “unusual circumstances,” the agency can extend that time for up to an additional 14 days.
- The 10-day provision and/or the extension should probably be limited to the following situations:
- if the records sought are voluminous;
- if the records sought are maintained off-site, perhaps in storage;
- if there is a question whether the request seeks a public record at all;
- if the record(s) sought may be exempt from disclosure.
Specific Requirements of Requests
- A request must “reasonably describe an identifiable record or records.
- "Identifiable record" means that the agency must be given enough information, such as the date of a document or the name of the person who prepared it, to allow it to found easily.
- Requests that describe a general class of documents (e.g., “records of all coastal parcels having at least two structures on them”) can be denied for not complying with this provision. The agency does not have to perform research, nor make subjective decisions about what records fall within a given request. A proper response is to offer the person the records to review himself, indicating those of which copies are desired.
*EXCEPTION* If the agency claims that some or all of the records are confidential, the only way it can comply with such a request is to review the records itself to determine whether exempt and nonexempt records can be segregated.
Agencies must also keep in mind § 6353.1 (added as of 2002), which requires a public agency to assist a member of the public to “make a focused and effective request that reasonably describes an identifiable record or records” by doing “all of the following, to the extent reasonable under the circumstances:”
- Assist the member of the public to identify records and information that are responsive to the request or to the purpose of the request, if stated
- Describe the information technology and physical location in which the records exist
- Provide suggestions for overcoming any practical basis for denying access to the records or information sought
The agency’s duties under this statute are satisfied “if the public agency is unable to identify the requested information after making a reasonable effort to elicit additional clarifying information from the requester.”
There is “implied rule of reasonableness” limiting when and what kinds of records a person is entitled to review or to receive copies of:
- inspection of public records cannot give a member of the public priority over public officers in the use of official records;
- copies of voluminous documents which would overwhelm the functioning of an agency do not have to be made;
- repeated requests for records which do not exist do not have to be made.
BUT, if the requester is willing to pay the cost of obtaining voluminous documents, or the cost of segregating exempt and nonexempt information, then the agency will probably (within reason) have to cooperate.
Repeated requests for information which the person has been informed are unavailable also falls under the “implied rule of reasonableness.”
If a record sought is not stored at the location where one normally transacts business, the agency should invoke the 10-day rule.
Exemptions from the Public Records Act
- Government Code § 6254 sets forth 28 specific exemptions from the definition of a public record (subdivisions (a) through (bb) of that statute) as amended through January 22, 2004.
- Some of the most significant ones:
- Subdivision (a) exempting “Preliminary drafts, notes, or interagency or infra-agency memoranda that are not retained by the public agency in the ordinary course of business, provided that the public interest in withholding those records clearly outweighs the public interest in disclosure.
- Subdivision (c) exempting “Personnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy.
- Subdivision (k) exempting “Records the disclosure of which is exempted or prohibited pursuant to federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege.” (This exemption incorporates hundreds of other statutes, listed in §§ 6276.02-6276.48)
- Subdivision (n) exempting “Statements of personal worth or personal
- financial data required by a licensing agency and filed by on applicant with the licensing agency to establish his or her personal qualification for the license, certificate, or permit applied for.”
- Government Code §§ 6276.02-6276.48 alphabetically lists the several hundred other statutes incorporated in § 6254, subd. (k).
- Government Code § 6255 states that, if a specific exemption under § 6254 or another statute cannot be found, the agency can still refuse to release the information if a “good reason” exists “on the facts of the particular case that the public interest served by not making the record public clearly outweighs the public interest served by disclosure of the record.
- Under § 6255, for example, courts fashioned the “deliberative process privilege,” which allows public officials to keep confidential their records of persons with whom they have met or talked.
- This privilege probably applies to any public employee with some discretionary decision-making or policy-making authority.
If a record falls within one of the exceptions to the Act:
- The person requesting the record should be informed that the record requested is confidential;
- If there is any doubt, the person should make a written request.
- Within the 10 days the agency then must:
- confirm whether the record is indeed confidential; and
- provide a written response citing the appropriate statute reasoning that the record is confidential.
- In “unusual circumstances,” the agency may delay the release for up to an additional 14 days.
- The California Supreme Court recently held that a public agency does not have to prepare a “privilege log” describing the withheld documents.