A&A: I have been denied access to all records and the staff has been told not to speak to me

Q: We have a small fire protection district, and the board of directors (all volunteers) is getting out of control. Can you please give me some general advice about the following issues?

• Do I need to file a “public record request letter,” or can I just go down to the district office and request copies of contracts, etc.?
• Can the district staff just give me copies of documents that I request without getting themselves into trouble?
• Can the district board refuse to give me access to employment and insurance contracts?
• Similarly, can the board order the staff to refuse me access to the documents or even talk to me?

A: As for your first question, no formal request letter is required under the Public Records Act. Some agencies will ask for the request to be put in writing, but you should not be required to do so.

Your second question is a bit trickier. Generally speaking, an agency should not be able to punish an employee for complying with the Public Records Act. It is conceivable that an agency could establish protocols for responding to PRA requests and require its employees to comply with those protocols, and that a failure to follow the protocols could result in some kind of disciplinary action.

The PRA provides that:

• (a) Public records are open to inspection at all times during the office hours of the state or local agency and every person has a right to inspect any public record, except as hereafter provided. Any reasonably segregable portion of a record shall be available for inspection by any person requesting the record after deletion of the portions that are exempted by law.

and

• (b) Except with respect to public records exempt from disclosure by express provisions of law, each state or local agency, upon a request for a copy of records that reasonably describes an identifiable record or records, shall make the records promptly available to any person upon payment of fees covering direct costs of duplication, or a statutory fee if applicable. Upon request, an exact copy shall be provided unless impracticable to do so.

Govt. Code Section 6253. Any protocols established by an agency would have to be consistent with these requirements. Generally speaking, this means that a member of the public should be able to walk in off the street and inspect or obtain a copy of a public record.

To some extent, your question might also dovetail with First Amendment protection for government employee speech. The issue of when and how a government agency may lawfully restrict its employees’ speech is not always clearly defined or easy to analyze, however.

The question usually boils down to the “‘balance between the interests of the [employee], as a citizen, in communicating with the public on matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.’” Connick v. Myers, 461 U.S. 138, 140 (1983), quoting Pickering v. Board of Educ., 391 U.S. 563, 568 (1968).

Courts considering government employee speech issues first ask whether the speech at issue “addressed a matter of public concern.” Kirchmann v. Lake Elsinore Unified School Dist., 57 Cal. App. 4th 595, 601 (1997). If the speech concerns a matter of public concern, “we must balance [the employee's] interest in making her statement against the interest of the [employer] in ‘”promoting the efficiency of the public services it performs through its employees.”‘” Id., quoting Rankin v. McPherson, 483 U.S. 378, 384-85 (1987).

In essence, therefore, government employers have some latitude to regulate employee speech, but the degree of latitude depends on the facts of the particular case, with particular focus on the connection between the speech and matters of public interest and the extent to which the regulation might be necessary for the functioning of the government office involved.

Your third question is whether the district can refuse to give you access to particular documents. If the employment contracts you refer to are between a public official or public employee and state or local agency, then the PRA specifically provides that the agency must disclose them.

Govt Code § 6254.8 (“Every employment contract between a state or local agency and any public official or public employee is a public record which is not subject to the provisions of [the PRA exempting certain records from disclosure].”)

If the insurance contracts you refer to are “writing[s] containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency,” then they are public records and must be disclosed unless some other provision of the PRA exempts them from disclosure. If the agency does take the position that the insurance contracts are exempt from disclosure, then it must tell you the specific exemption that authorizes the agency to withhold the record. That is often a good starting point for evaluating whether the withholding is lawful or not.

As for your last question, if the records are subject to disclosure under the PRA, then the agency must release them to you. Although you would not necessarily have a right to speak to any particular employee about the records, someone from the agency must either give you the records you request or tell you why they are exempt from disclosure under the PRA.

The FAC’s web site has additional information about making PRA requests that might be useful to you: http://www.firstamendmentcoalition.org/category/resources/access-to-records/

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.

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