Specific Rules Governing Access
California Public Records Act:
Specific Rules Governing Access
Q: What are the basic rights enjoyed by the public under the California Public Records Act?
Q: How does one “inspect” information stored in computer records?
Q: Can an agency turn down an inspection request by just saying “No” or ignoring the requester?
Q: Does the agency have any time limit for responding to an inspection request?
Q: Why do agencies use the “balancing test” exemption so often?
Q: What are the basic rules for obtaining copies of records under the CPRA?
Q: Can a requester get computerized information in a preferred format or medium?
Q: Can the requester demand that the agency put together a tailor-made report from several records?
Q: What is meant by “direct costs of duplication”?
Q: May police and sheriff’s departments charge extra for accident or crime reports?
Q: May a public agency charge below-cost fees or waive them entirely?
Q: What are the basic rights enjoyed by the public under the California Public Records Act?
A: The CPRA provides two rights to the public: to inspect public records and to obtain copies of them as desired. The right to inspect is presumed; that is, a record is open to inspection unless some exception or exemption, spelled out or referenced within the Act, provides to the contrary. The records are open during normal office hours, and arbitrary or unneccessary delay in allowing inspection is not permitted. The Act states:
Section 6253. (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 …
Section 6256.2. Nothing in this chapter shall be construed to permit an agency to delay access for purposes of inspecting public records …
Q: What prevents someone from just overwhelming or disrupting a public agency with unreasonable requests to inspect records?
A: As judicially interpreted, the inspection right is not an inflexible demand on the agency irrespective of the consequences; it does not require, for example, that the agency’s staff work on a document be suspended while a citizen peruses its contents. The California Supreme Court has concluded that such rights
are, by their very nature, not absolute, but are subject to an implied rule of reason. Furthermore, this inherent reasonableness limitation should enable the custodian of public records to formulate regulations necessary to protect the safety of the records against theft, mutilation, or accidental damage, to prevent inspection from interfering with the orderly function of his office and its employees, and generally to avoid chaos in record archives.
– Bruce v. Gregory, 65 Cal. 2d 666 (1967)
Q: How does one “inspect” information stored in computer records?
A: While the Act clearly includes electronically stored information within its scope, and addresses the question of obtaining copies of computer data (see below), it is silent on how simple inspection of such information must be accommodated. Within the “rule of reason,” however, a requester must be given some means of reviewing (short of copying) at least those computer records that do not have confidential information commingled in them.
Q: Can an agency turn down an inspection request by just saying “No” or ignoring the requester?
A: No, nor may the agency deny an access request simply on the basis that “It’s not our policy.” It must back its denial either by citing chapter and verse — some exception or exemption in the Act or elsewhere under state or federal law — or by demonstrating that, on balance, there is a predominant public interest in non-disclosure. The decisionmaker(s) responsible for denying access must be named in the denial notice. The Act states:
Section 6255. The agency shall justify withholding any record by demonstrating that the record in question is exempt under express provisions of this chapter or that on the facts of the particular case the public interest served by not making the record public clearly outweighs the public interest served by disclosure of the record.
Section 6256.2 . . . Any notification of denial of any request for records shall set forth the names and titles or positions of each person responsible for the denial.
Q: Does the agency have any time limit for responding to an inspection request?
A: As noted below, the agency has in effect a 10-day deadline for making a “determination” for or against access if the request is for a copy of a record. Whether that is the deadline for responding to a simple inspection request is not clear and has not been addressed by a court. Combining the “rule of reason” and the no-delay rule in Section 6256.2, however, it seems clear that if an agency has a standing rule or readily determinable position affecting access to the record in question, it should let the requester know as soon as possible and not artificially prolong the process.
Q: Isn’t it too easy for an agency to make up excuses for denying access by using the “balancing test” in Section 6255?
A: The cases in which the Section 6255 “balancing test” has been held applicable or not to specific facts are noted below under Exemptions. At this point it can be noted that while it may seem tempting for an agency to assert this public interest basis for denying access, courts are generally reluctant to recognize it where there exists no recognized public policy supporting a withholding of information, or where the predicted ill effects of disclosure are speculative at best.
Q: Why do agencies use the “balancing test” exemption so often?
A: Some may use it reflexively because they are counting on the requester simply to give up and go away. But in some cases officials that might otherwise be cooperative have an incentive to assert the balancing test — if failing to do so would result in the release of information injurious to some person’s reputation. One case holds that an agency which fails to resolve doubts in favor of non-disclosure in such cases (by using Section 6255′s balancing test, for example) may not be able to claim the absolute privilege accorded officials performing a duty if it is sued for releasing libelous material (Neary v. Regents of the University of California, 185 Cal. App. 3d 1136 (California Court of Appeal, 3d Dist. 1986)). A denial citing the balancing test, therefore, does not necessarily mean that an agency believes the public interest would be better served by nondisclosure. It may instead simpy reflect the reluctance of the agency to face a possible defamation or invasion of privacy suit without the benefit of the absolute privilege. In effect, such agencies may be saying, “We’d prefer to just let you have the record, but the risk is too great. Sue us for it and relieve us of that risk.”
Q: What are the basic rules for obtaining copies of records under the CPRA?
A: The Act addresses various issues relating to obtaining copies of non-exempt records: the form for production of computerized information; the fees chargeable for copies; the duty of the agency to delete exempt information in order that the public portion may be copied for release; and deadlines for responding to copy requests. The Act states:
Section 6256. Any person may receive a copy of any identifiable public record or copy thereof. Upon request, an exact copy shall be provided unless impracticable to do so. Computer data shall be provided in a form determined by the agency. . .
Section 6257. Except with respect to public records exempt by express provisions of law from disclosure, each state or local agency, upon any request for a copy of records, which reasonably describes an identifiable record, or information produced therefrom, shall make the records promptly available to any person, upon payment of fees covering direct costs of duplication, or a statutory fee, if applicable. Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt by law.
Section 6256. . . . Each agency, upon any request for a copy of records shall determine within 10 days after the receipt of such request whether to comply with the request and shall immediately notify the person making the request of such determination and the reasons therefor.
Section 6256.1. In unusual circumstances, as specified in this section, the time limit prescribed in Section 6256 may be extended by written notice by the head of the agency to the person making the request setting forth the reasons for the extension and the date on which a determination is expected to be dispatched. No such notice shall specify a date that would result in an extension for more than 10 working days.
As used in this section “unusual circumstances” means, but only to the extent reasonably necessary to the proper processing of the particular request:
(a) The need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request.
(b) The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request.
(c) The need for consultation, which shall be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request or among two or more components of the agency having substantial subject matter interest therein.
Q: Can a requester get computerized information in a preferred format or medium?
A: No appellate court has examined the degree of discretion referred to in the statement that “Computer data shall be provided in a form determined by the agency”. Specifically, it has yet to be decided in a reported case whether an agency may arbitrarily decline, for example, to provide a disk or tape version of a computer record when it is readily capable of doing so and when the requester is prepared to pay the cost of duplication and/or supply the media for transfer of the data. Nor has an appellate court considered whether a public agency complies with the Act by providing bulk paper printouts of a large volume of information from which the requested data could have been readily extracted by its own computer report-formatting capabilities, thus forcing the requester to do a manual sifting to obtain the desired information. The latter was the scenario which a superior court judge in Alameda County found to comply with the law in a case which was never resolved on the merits on appeal, because appeal was held to be a right unavailable under the Act (Powers v. City of Richmond, 10 Cal. 4th 85 (California Supreme Court, 1995)). It seems more likely, however, that the provision in question, which dates from 1970, was intended as no more than a protection for public agencies against what at that time might have seemed daunting demands for special reprogramming or other unusual computer access accommodations that would have placed an unusual burden on relatively inflexible governmental data processing systems.
Q: Can the requester demand that the agency put together a tailor-made report from several records?
A: No. The Act allows access to copies of records held by the government; it does not compel the assemblage or creation of new records from disparate sources of information; it does not, in short, compel the writing of a report to suit the requester’s research specifications. Neither does it create the right, in effect, to a wholesale “subscription” to future records in a foreseeable series; the requester may be compelled to await the creation of identifiable records and then ask for copies. And while a request for records may be very large, it must be made with reasonable specificity; requests that are both very large and very general need not be honored (Rosenthal v. Hansen, 34 Cal. App. 3d 754 (California Court of Appeal, 3d Dist. 1973)).
Q: Can the requester insist that the agency at least list the existing records that contain the desired information?
A: One court has held that while nothing in the CPRA requires an agency to create a list describing the records within the field of a sizeable request, if doing so will help the requester narrow his request and thus reduce the production burden on the agency, and particularly where the requester is willing to pay the cost for preparing such a list or index, it is not an abuse of discretion for a court to order its preparation (State Board of Equalization v. Superior Court (Associated Tax Consultants, Inc.), 10 Cal.App. 4th 1177 (California Court of Appeal, 3d Dist. 1992)).
Q: What if the desired information is itself public by law, but is mixed in with other information that is exempt from disclosure?
A: When a record contains some information that is exempt from disclosure but is otherwise public in character, it is the agency’s duty to delete the former and produce the latter unless the exempt and non-exempt information are so interwoven that they are not “reasonably segregable.” The segregation and deletion burden on the agency may be considerable, and the California Supreme Court has concluded that if the result would be to leave the requester with little of the specific information being sought, a costly segregation and deletion prospect may be the basis for denial altogether.
The result is different, however, if the only deletion process required to make information disclosable involves the removal of personal identifiers, for example to protect individuals’ privacy; in such cases extensive editing alone is not a basis for denial. (ACLU v. Deukmejian, 32 Cal. 3d 440 (1982)). A taxing authority with an extensive body of specific rulings on particular taxpayer cases may not, for example, refuse to provide the records on the basis that redacting the identifiers will be a lengthy and costly process – especially where the requester is willing to pay the cost of the redaction by a specially hired force of review attorneys. (State Board of Equalization v. Superior Court (Associated Tax Consultants, Inc.), 10 Cal.App. 4th 1177 (Californria Court of Appeal, 3d Dist. 1992)).
Q: The law says that the copy requester may be charged either a statutory fee or the direct costs of duplication. What is meant by “statutory fee”?
A: This phrase refers either to a specific monetary amount set by the Legislature or to a fee established by the agency under an act of the Legislature – a state statute – which expressly delegates to the agency the fee-setting function, for example the authority given the director of the DMV under Vehicle Code Section 1811 to set fees for various types of records. (Shippen v. Department of Motor Vehicles, 161 Cal. App. 3d 1119 (California Court of Appeal, 3d Dist. 1984)). While some local agencies contend that “statutory fee” permits any charge so long as it is formally established in an ordinance, the Act does not use “statute” and “ordinance” interchangeably. In the three other provisions in which “statute” is used, two of them clearly refer to state or federal legislation (Section 6254.5 (c) and Section 6254.6), and in the third instance “statute” and “ordinance” clearly do not refer to the same thing:
Section 6254.7. . . . (c) All records of notices and orders directed to the owner of any building of violations of housing or building codes, ordinances, statutes, or regulations … are public records.
If the Legislature had meant to allow the charging of any “fee set by ordinance” it could have easily said so.
Q: What is meant by “direct costs of duplication”?
A: This phrase means “the cost of running the copying machine, and conceivably also the expense of the person operating it. ‘Direct cost’ does not include the ancillary tasks necessarily associated with the retrieval, inspection and handling of the file from which the copy is extracted.” So ruled the Fourth District, California Court of Appeal in 1994, disapproving a 25 cent per page fee which reflected not only copying but “staff time involved in searching the records, reviewing records for information exempt from disclosure under law, and deleting such exempt information” (North County Parents Organization for Children with Special Needs v. Department of Education, 23 Cal. App. 4th 144). A fact supporting this view is that the charging of fees under the Act attaches to copying — there is no fee-charging authority provided in the sections dealing with the mere inspection of a record. And yet in order to produce a record for inspection, the agency must already expend all the effort — search, retrieval, review, redaction, replacement — except for copying itself. If these costs were meant to be captured in a fee, there would need to be authority to charge a fee for inspection even when no copy was requested.
Q: May police and sheriff’s departments charge extra for accident or crime reports?
A: No. Some local law enforcement agencies charge relatively high fees, well beyond the literal cost of duplication, for copies of such documents as accident and crime reports, apparently on the theory that since they need not produce copies of these records for miscellaneous members of the public, but only for certain persons with a direct interest in the accident or crime (for insurance or litigation purposes), the records are therefore not “public records” subject to the fee-setting restrictions in the Act. That was the position taken by the CHP with respect to its accident reports in the earlier days of the Act, but it was rejected by the Second District, California Court of Appeal in Vallejos v. California Highway Patrol, 89 Cal. App. 3d 781 (1979). If the agency provides copies of its records, either to the general public or to a special class of persons with defined access rights not generally available, the fee limitations of the Act apply.
Q: May a public agency charge below-cost fees or waive them entirely?
A: Yes. Although agencies do not often offer to reduce or waive fees, they may do so, as part of their general authority to adopt regulations providing greater access to information than the minumum standards in the Act. (North County Parents of Children with Special Needs v. Department of Education, 23 Cal. App. 4th 144 (California Court of Appeal, 4th Dist. 1994)).
