Using the Public Records Act

Michael Hersh

States with strong “freedom of information” laws generally are the best at detecting official corruption and preventing such corruption. In California, our Public Records Act, “PRA,” (Gov’t Code sections 6520 - 6270) assumes that all State and local government records are public, unless specifically exempted from disclosure by the PRA and provides a process to inspect or obtain copies of public records. (The Freedom of Information Act is a parallel federal law that requires agencies of the U.S. government to disclose records.) The purpose of this article is provide some general tips to making an effective PRA request and to steer you to useful resources. The process to request documents is relatively simple, but a successful request entails a bit of research to determine exactly what records you seek, an understanding the exemptions to disclosure in the PRA, and a willingness to enforce your rights.

Stage One: Before your PRA Request
Whenever possible, work with others who share your interest in an issue and in pursuing public records related to that issue. Your request will benefit from the different perspectives you find, and public employees, officials and the Courts will see your request as one with a significant public purpose. An official PRA request starts a formal legal process that is likely to be reviewed by many government officials, attorneys and possibly Superior Court judges. Before starting down that road, if you have a good idea of a particular department or work site that might have the specific information you are seeking, study up. You may find an organizational chart of the particular agency you are dealing with on-line, or learn from press releases which officials are responsible for a particular public project. It does not hurt to visit a specific public office and speak to the people who work there to discuss your need for information. It will not likely result in an employee handing you want you are seeking (though you may get lucky), but the employee may provide a particular form number used in that department to keep track of particular matters or explain that the department issues reports about the matter of which you are concerned, or give you the name of a particular administrator or employee who audits, manages, or works in the specific areas of your concern. That person may also live across the street. Always be polite, friendly and honest with government employees at every step. For an informal chat, avoid a time of day when that office is busy. Absolutely nothing is gained by bullying employees or officials, using the phrase, “my taxes pay your salary,” making empty threats about litigation,or throwing a tantrum, and you quickly lose the cooperation of people who might otherwise be willing to help you. We have local taverns that are ideal for such rants. Another informal route, depending on the specific issue you care about, is to work with the staff of your local State Assemblyperson, Senator or Congressperson, Councilman or School Board member, union leader, or journalist to see if they cannot obtain the documents for you, or help you make and enforce a PRA request.

At this step, you also want to identify the “Custodian of Public Records” who has been appointed by your City, School District or County to receive and respond to PRA requests, and check to see whether that particular government body has its own policies about public records. In Culver City, for example, the City Clerk maintains most public records, but there may be particular records, such as criminal records, for which the Culver City Police Department has a custodian from whom to request those records. At home, write up detailed notes of your communications with particular employees, including the date and time and what was said to you.

Stage Two: Making the PRA Request
Draft the request not only for the Custodian of Records to whom your request initially will go, but thinking about how particular public employees would comply with your request and how a Superior Court judge might understand your request a year from now if your request requires legal action to enforce it. You want to show, briefly, that you seek particular records and that a public purpose is served by providing you or your organization with these records in a timely manner. You do not want to make requests that are vague or overly broad, insensitive to the privacy rights of other people, disregard the time of public employees to gather the information for you, or demonstrate that you are on a fishing expedition or pursuing a personal grudge without a clue as to what you are looking for. Also, because you may need to pay fees for copying of the records you request, a “broad” request may be expensive and bury you in unhelpful documents.

A “shot gun” request is rarely as effective as a simple and specific request that shows you are knowledgeable, serious and understand how the process actually works. If you know the particular name or number of a government form that has the information you need, request all such forms by name for the specific time period you are concerned about and any summaries or periodic reports prepared by that agency about the forms or documents in question. If you know a particular office or administrator who has actual control over the records, state that in the request. You can always follow up a narrow request with an additional request as you learn more about other documents you may want to obtain. The request should A) reference the Public Records Act and any local public record policy of that government body; B) provide a concise and accurate description of the public records you seek; C) the months or years for which you seek the documents; and, D) an invitation for public employees to contact you to clarify the request Though not required, stating the purpose for which you make the request, if it shows a positive public purpose, may encourage public employees to be more helpful than required by law, and make a Superior Court judge view your request as reasonable and important should you need to go to court. It can also help public employees better identify records that are part of your request. You do not need to provide legal citations or explain the agency’s legal duties under the PRA. If you are emotional about the issue, have someone who is not emotional about it and who will be candid with you, read the request to make sure the request is not confusing and makes the requestor appear in a professional and positive manner.

When you file your PRA request, if possible, obtain a file-stamped copy showing the date the request was received by the Custodian of Records. If not possible, note the filing date and to whom you sent it for your records.

Stage Three: Enforcing Your Request and Understanding Exemptions to Disclosure
When a copy of a record is requested, the agency should determine within ten days whetherto comply with the request, and promptly inform the requester of its decision and thereasons for the decision. Where necessary, because either the records or the personnel that needto be consulted regarding the records are not readily available, the initial ten-day period tomake a determination may be extended for up to fourteen days. If immediate disclosure is not possible, the agency must provide the records within a reasonable period of time, along with an estimate of the date that the records will be available. The PRA does not permit an agency to delay or obstruct the inspection or copying of public records. When a written request is denied, it must be denied in writing.

The PRA allows agencies to withhold certain records. These “exemptions” generally include confidential material in personnel records, records related to an ongoing investigation, advice from attorneys to public officials and agencies, drafts, and material made confidential by other state or federal statutes. In addition, a record may be withheld whenever the public interest in nondisclosure clearly outweighs the public interest in disclosure - which is why you want to identify a significant public interest in your request. When an agency withholds a record because it is exempt from disclosure, the agency must notify the requester of the reasons for withholding the record. However, the agency is not required to provide a list identifying each record withheld and the specific justification for withholding the record.

When a record contains exempt material, it does not necessarily mean that the entire recordmay be withheld from disclosure. The general rule is that the exempt material may be withheld but the remainder of the record must be disclosed. The fact that it is time consuming to segregate exempt material does not obviate the requirement to do it, unless the burden is so onerous as to clearly outweigh the public interest in disclosure. If the information which would remain after exempt material has been redacted would be of little or no value to the requester, the agency may refuse to disclose the record on the grounds that the segregation process is unduly burdensome. The difficulty in segregating exempt from nonexempt information is relevant in determining the amount of time which is reasonable for producing the records in question.

If you believe a response to your request is being unreasonably delayed, or exemptions are being raised by the agency that appear to be invalid, legal or political action may be necessary to enforce the request. That, of course, can be expensive and time consuming, but attorney’s fees may be awarded to you by a Court if you can show your rights under the PRA have been violated. In some cases, such as where an agency claims that requested material is confidential, a Judge may agree to inspect the records to evaluate such material. If the agency determines that your request is unduly burdensome, the Judge may, as noted above, determine whether your request shows a public benefit for the disclosure that outweighs the agencies’ burden in complying with your request.

You can find many free resources on-line or at a public library to assist you in making and enforcing a PRA request. One of the most helpful general descriptions of the PRA is a 2004 pamphlet from the California Attorney General’s Office, “Summary of the California Public Records Act” from which I have purloined generously above. All California codes and pending legislation are available for free on line. Most public libraries contain “annotated codes” which show the key court decisions that interpret language in a particular code section and librarians who may have “how to” materials for requesting information. On line, you will find many citizen advocacy groups who encourage public records act requests and may even provide some assistance, but be aware that many of these groups have particular political agendas with which you may or may not agree, or they may not be familiar with California’s PRA. Good luck in your efforts.

Michael Hersh is an attorney with the California Teachers Assocation (CTA).