Pasadena encrypted their radio signal January 7, effectively denying the public and media access to police radio traffic. The Pasadena police department said the media could make public record requests for access to the traffic and insisted that the department took the step to encrypt to protect officers by closing criminals out of the system. -db

From the Pasadena Star-News, February 5, 2012, by Brian Charles.

Full story

Q: We are trying to obtain records from an engineering contractor on a multi-billion dollar project they have with the state. In addition, we are seeking contracts, correspondence, etc. pertaining to the project between this engineering firm and multiple sub-consultants they have hired. Will FOIA allow us to obtain contracts between prime consultants and their sub-consultants? What about sub-consultants to sub-consultants? How many layers down does FOIA cover, assuming all of the work relates to the State’s main project. To whom should the FOIA request be made?

A: It sounds like you are trying to obtain these documents from a state agency, in which case, the California Public Records Act would apply. (FOIA applies only when the records are sought from a federal agency. Of course, if you are seeking records from a federal agency, please let us know.) Under the Public Records Act, public records — which include “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,” Gov’t Code § 6252(e) — are presumed to be open to the public and must be disclosed unless a specific provision of the Act or other law exempts them from disclosure.

It is not clear that any exemptions would apply to the records you seek. With respect to contracts entered into between the state agency and the engineering contractor, such records should be subject to disclosure under the PRA, assuming the agency is in possession of those contracts. San Gabriel Tribune v. Superior Court, 143 Cal. App. 3d 762 (1983) (finding that contracts entered into with a public agency are subject to disclosure under the PRA). (One would expect an agency to keep copies of such records; if the agency says it does not have the contracts, then that might be evidence of the agency’s general misfeasance.)

With respect to contracts between the engineering contractor and its subcontractors, or those subcontractors and their subcontractors, if the agency also has these documents in its possession, then those contracts, presumably, would be public records as well. However, the Public Records Act only applies to government entities, in particular, “state or local agencies.” Thus, you would probably only be able to obtain copies of contracts between subcontractors and sub-subcontractors unless those contracts were provided to the state agency.

If you haven’t done so already, you may want to make a written request for the records you seek. Although not statutorily required (your other option would be to orally convey your records request or to simply make an in-person request to inspect the relevant records), a written request should result in a written response, and if that response is a denial of your request, then the response should set forth the basis for the denial.

The PRA also says that “upon a request for a copy of records, [the agency] shall, within 10 days from receipt of the request, determine whether the request, in whole or in part, seeks copies of disclosable public records in the possession of the agency and shall promptly notify the person making the request of the determination and the reasons therefor.” Gov’t Code § 6253(c). In practice, agencies oftentimes latch onto the second provision, taking at least 10 days to respond to any request for copies.

You can find more information about the Public Records Act, including a sample request letter, at the First Amendment Coalition web site at http://www.firstamendmentcoalition.org/category/resources/access-to-records/.

Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to FAC 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.

A Santa Monica math teacher lost a lawsuit in a California appeals court to keep a sexual harassment complaint against him private.

The court found substantial public interest in the release of details of the investigation into a parent’s charge that the teacher sexually harassed his thirteen-year-old daughter. The charge was not fully substantiated. -db

From the Metropolitan News-Enterprise, January 25, 2012, by Kenneth Ofgang.

Full story

After tipsters told the Action Alameda News that the Alameda Police Department was trying to cover up a robbery at a restaurant in December of 2011, the newspaper made a public records request on the incident.

The police denied that there was a coverup and denied access to 911 tapes saying that they were exempt under the California Public Records Act. -db

From a commentary in Action Alameda News, January 19, 2012.

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Q: To what extent are school district settlement agreements public when they contain confidential student information?

A:  Copies of settlement agreements that school districts enter into are subject to disclosure under the Public Records Act.

Although it should generally be possible to draft a settlement agreement without including material so sensitive that it qualifies for an exemption from disclosure under the PRA, it is conceivable that a settlement agreement might contain material legitimately exempt from disclosure under state or federal law.

Yet even in that unusual circumstance, the agency (in this case, the school board) should disclose the agreement with the exempt material redacted. Govt. Code § 6253(a) (“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.”).

Any qualifying records must be disclosed unless a specific provision of the Act or other law exempts them from disclosure. Settlement agreements where one of the parties is a public agency are generally not exempt from disclosure under the Act. See Register Division of Freedom Newspapers v. County of Orange, 158 Cal. App. 3d 893, 909 (1984) (documents related to settlement with county jail inmate subject to disclosure, with possible exception of crime report and rough notes made by county’s risk management staff); Copley Press, Inc. v. Superior Court, 63 Cal. App. 4th 367, 376 (1998) (settlement reached between school district and student required to be unsealed from trial court record under analogous trial court rules); Sanchez v. County of San Bernardino, 176 Cal. App. 4th 516, 526 (2009) (confidentiality provision in settlement agreement with county would have violated Public Records Act).

As for whether “confidential student information” would be exempt from disclosure, that would depend on the information and the facts of the situation. Certain student records are confidential under state and federal law, but the scope of those laws is fairly narrow.

For example, California’s Education Code provides that:

“[a] school district is not authorized to permit access to pupil records to any person without written parental consent or under judicial order” except in certain situations. Ed Code § 49076. Note, however, that “pupil records” is defined as “any item of information directly related to an identifiable pupil, other than directory information, which is maintained by a school district or required to be maintained by an employee in the performance of his or her duties whether recorded by handwriting, print, tapes, film, microfilm or other means.” Ed Code § 49061(b).

For purposes of the statute, directory information “means one or more of the following items: pupil’s name, address, telephone number, date and place of birth, major field of study, participation in officially recognized activities and sports, weight and height of members of athletic teams, dates of attendance, degrees and awards received, and the most recent previous public or private school attended by the pupil.” Ed Code § 49061(c).

It is not at all clear that information that may relate to a student in a settlement agreement would be likely to be considered a “pupil record” under these provisions. It is more likely that a court would consider whether the information at issue might unreasonably intrude on a student’s privacy interests, either based on the § 6255(a) exemption noted below or on California’s constitutional right to privacy.

Note that in ordering an investigative report about alleged wrongdoing by a school superintendent disclosed under the PRA, the Court of Appeal ordered names, home addresses, and phone numbers of students, parents and staff members interviewed in the report to be redacted where:

“the public’s interest in viewing the … report is not furthered by knowing the identities of any of [those individuals.]. Knowing their identities does not help the public understand how the Board responded to the allegations involving [the superintendent].” BRV, Inc. v. Superior Court, 143 Cal. App. 4th 742, 759 (2006).

Whether student information in the settlement agreement you reference could be redacted prior to disclosure would likely depend in large part on what exactly would be disclosed and the relationship of that information to the agreement and underlying dispute.

I should also mention that when no specific exemption applies, agencies often attempt to withhold records from public disclosure by citing the Act’s “catch-all” exemption, contained in Government Code § 6255(a).

This exemption states that in order to justify withholding a record, the agency must show that “on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.” Gov’t Code § 6255(a).

The burden of proof is on the agency to demonstrate “a clear overbalance on the side of confidentiality.” Michaelis, Montanari & Johnson v. Superior Court, 38 Cal. 4th 1065, 1071 (2006).

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.

Q: I requested documents regarding disciplinary action taken against me by my employer, a metro department of transportation. It’s  been more than a month and I’ve not received a reply.  What would be the next course of action?

A: The Public Records Act gives local agencies 10 days to respond to a request for a copy of a public record; the time for responding can be extended by the agency for an additional 14 days in “unusual circumstances.” Gov’t Code § 6253(b) and (c).

This section goes on to state:

“No notice shall specify a date that would result in an extension for more than 14 days. When the agency dispatches the determination, and if the agency determines that the request seeks disclosable public records, the agency shall state the estimated date and time when the records will be made available.” Gov’t Code § 6253(c).

The code then states what might constitute “unusual circumstances,” including:

(1) 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.
(2) The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records that are demanded in a single request.
(3) The need for consultation, which shall be conducted with all practicable speed, with another agency having substantial interest in the determination of the request or among two or more components of the agency having substantial subject matter interest therein.
(4) The need to compile data, to write programming language or a computer program, or to construct a computer report to extract data.

Gov’t Code § 6253(c).

Additionally, access to copies of records is to be provided “promptly,” Gov’t Code § 6253(b), and “[n]othing in this chapter shall be construed to permit an agency to delay or obstruct the inspection or copying of public records. The notification of denial of any request for records required by Section 6255 shall set forth the names and titles or positions of each person responsible for the denial.” Gov’t Code § 6253(d).

Thus, the 10-day deadline is not a legal deadline for producing the actual records; however, under § 6253(b) and (d), once a determination has been made as to whether the records are disclosable, actual release of the records should promptly follow.

Finally, if the requester is only seeking to inspect the records (as opposed to getting copies of the records), the Act requires that such records be made available for 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.” Gov’t Code § 6253(a).

Thus, it seems that nearly two months to respond to records request violates the plain language of the Act. You might consider writing to the agency against, restating your request and reminding the agency of its statutory duty to respond within ten days. Please keep in mind that if the agency responds that the records are not disclosable under the Act, it must state the specific exemption it is invoking, and how that exemption applies. Gov’t Code § 6253(c).

If an agency refuses to provide records under the Act, the ultimate recourse is filing a lawsuit under Government Code Section 6259. Such lawsuits are typically initiated by a verified petition (i.e., a request filed under oath) that asks the court to issue a writ of mandate, which is a type of order directing the public agency to take a specified action. Attorney’s fees are available to a plaintiff who prevails in litigation filed pursuant to the Act, Government Code section 6259(d).

In any follow-up correspondence you have with the university regarding the fact that you have not received the requested records, you may want to (subtly, but firmly) point out that attorney’s fees are available should you take the agency to court and prevail. If you are looking for an attorney to represent you in this matter, you might consider trying the FAC’s Lawyer’s Assistance Request Form at http://www.firstamendmentcoalition.org/lawyers-assistance-request-form/.

You might also find this link, which contains additional information about the Public Records Act, including a sample request letter, helpful: http://www.firstamendmentcoalition.org/category/resources/access-to-records/.

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to FAC 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.

Q: A recent CPRA to obtain correspondence from the individual elected members of the a natural resource oversight committee and the individual appointed members of the  Wastewater Task Group either among themselves or to third parties was denied by the Community Development Commission (CDC) on the basis that neither neither entity was a “public agency.”

This the second time this position has been taken by CDC; resulting from the opinion of County Counsel.  Several years ago, in the previous request, a motion was made for declaratory and injunction relief in  County Superior Court as an ex parte motion.  The court dismissed the case without prejudice.  The ex parte route was chosen because court dates were so far behind that the records sought could not be obtained in time to meet the 60 day time limits for the Brown Act.  [The records were being sought to further support a claim of Brown Act Violation.

Can you reference me to current cases (or the current status of this issue) that might be applicable to my CPRA request for the correspondence of individual members of an elected legislative body and the members of an appointed Task Group appointed by a public agency?

A: If the denial was based on an assertion that neither the Oversight Committee nor the Wastewater Task Group is a "public agency" whose records are subject to disclosure under the PRA, that assertion seems suspect.

The PRA defines "local agency" as including "a county; city, whether general law or chartered; city and county; school district; municipal corporation; district; political subdivision; or any board, commission or agency thereof; other local public agency; or entities that are legislative bodies of a local agency pursuant to subdivisions (c) and (d) of Section 54952 [the Brown Act].” Gov’t Code § 6252(a).

And “public records” is defined to include “includes 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.” Gov’t Code § 6252(e). By the plain terms of the PRA, both Oversight Committee and Wastewater Task Group would seem to qualify as local agencies whose records are presumptively subject to disclosure under the Brown Act.

If the denial is based instead on an assertion that correspondence from or among individual members of these entities are not subject to disclosure, that analysis might be a bit more complicated and might depend in part on the nature of the correspondence and the conditions surrounding its creation and transmission.

Given the extent of the public business that is carried out through correspondence among public officials, it seems indefensible to take the position that no correspondence to or from particular elected officials constitutes a public record because the official is a person rather than a government agency. The business of public agencies is obviously carried out by individual people, and I am aware of no authority suggesting that communications by individuals in their official capacities could somehow be exempt because the individuals are not themselves state or local agencies.

In holding that letters making and rescinding an appointment of an individual to public employment were subject to disclosure under the PRA, the Court of Appeal explained that “[t]he mere custody of a writing by a public agency does not make it a public record, but if a record is kept by an officer because it is necessary or convenient to the discharge of his official duty, it is a public record.” Braun v. City of Taft, 154 Cal. App. 3d 332, 340 (1984).

The court also said that the definition of “public records” “is intended to cover every conceivable kind of record that is involved in the governmental process and will pertain to any new form of record-keeping instrument as it is developed. Only purely personal information unrelated to ‘the conduct of the public’s business’ could be considered exempt from this definition, i.e., the shopping list phoned from home, the letter to a public officer from a friend which is totally void of reference to governmental activities.” Id. (quoting San Gabriel Tribune v. Superior Court, 143 Cal.App.3d 762, 774 (1983), which, in turn, quoted the legislative history of the PRA, Assembly Committee on Statewide Information Policy California Public Records Act of 1968, 1 Appendix to Journal of Assembly 7, Reg. Sess. (1970)).

The response you mention may be based on a case that raised the possibility of an elected official’s home e-mails being exempt from disclosure. In January 2007, a newspaper in Tracy, California, requested communications between city officials and the Lawrence Livermore National Laboratory.

Although the city produced certain e-mails, it did not produce e-mails between a city councilwoman from her personal e-mail account and the lab. After the newspaper sued for the release of the e-mails, the trial court decided that the councilwoman was not a “local agency” subject to the PRA and that the writings of an individual council member that were not prepared, owned, used, or retained by the city were not “public records” subject to the PRA. Tracy Press, Inc. v. Superior Court, 164 Cal. App. 4th 1290, 1294 (2008) (dismissing on procedural grounds the newspaper’s attempt to have appellate court overturn the trial court’s decision).

The Court of Appeal said that “[i]f [the councilwoman] had e-mailed from the City’s offices, discussing City business, it is undeniable that the records would be ‘public records’ that must be produced. But this proceeding presents a novel and important issue: whether personal e-mails sent without using the City’s resources but discussing the City’s business are ‘public records.’” Id. at 1300. Unfortunately, the Court of Appeal disposed of the case on procedural grounds and never reached the substantive issue. As far as I know, no reported decision in California has addressed the issue since.

Tracy Press does not provide an answer to the “novel and important issue” of “whether personal e-mails sent without using the [government] resources but discussing [government] business are ‘public records.’” Id. A California court deciding the issue should be working from the general body of law applying the PRA and would not be bound in any way by the determination made by the trial court in the Tracy Press case.

Moreover, although the merits of the action were not reached by the Court of Appeal, the statement that any e-mails from the elected official e-mailed from the government office, discussing government business are “undeniabl[y]” public records “that must be produced” could be useful in your efforts. Id.

Even if a government official uses a personal e-mail account to send or receive messages relating to the conduct of the public’s business, there would seem to be a strong argument that those messages should be public. Otherwise, important government business could be conducted in secret.

Moreover, to the extent certain elected officials conduct almost all business from a residence or other non-governmental location and communicate about public business through personal e-mails, the rationale for treating such communications as subject to disclosure under the PRA would seem to be even stronger, as the contrary ruling would shield all of that person’s work from the public.

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. I believe you and I corresponded a few years ago on a related issue.

Q: I am considering a request for the 1099 form issued by a local agency to their general counsel. They are the worst violators of CPRA I have ever experienced. If I do not cite very specific statute and write the request so carefully that virtually all possibilities of misconstruction are eliminated, I will get a “no such records exist,” which is their default answer until they are challenged and provided “clarification.”

A: Any qualifying records must be disclosed unless a specific provision of the California Public Records Act or other law exempts them from disclosure. However, there are so many highly-specific exemptions, that it can be difficult to predict whether an exemption for 1099 forms has been created.

For instance, there is the possibility that some provision of the federal Internal Revenue Code has created an exemption for the disclosure of 1099s (they are federal forms, after all). I am not aware of any, but the possibility cannot be eliminated.

It’s also worth noting that generally tax forms are not public to the extent that you could not get them from the IRS. There certainly is a chance that this would relieve a state agency of any obligation to do the same.

Bearing that in mind, there may be an alternative method to get the information you desire. Personnel files are generally exempted under Gov’t Code § 6254(c); however, the California Supreme Court has held that the names and salaries of individual public employees are generally required to be made public.

The International Federation of Professional Engineers v. Superior Court, 42 Cal. 4th 319 (2007) specifically discusses obtaining the names and salaries of employees making more than $100,000, so at the least, this will provide you with access to the salary information of highly-paid employees.

Citing that case and requesting access to the salary/financial information to the general counsel of the local water agency should get you to the 1099s (barring an Internal Revenue Code exemption).

If the 1099s aren’t available through that avenue, then at the least, you should be able to get pay stubs or other equivalent records.

I encourage you to file a written request for the records you seek because a written request requires the agency to provide a written response. Gov’t Code § 6255(b). If they reject your formal request, their response will need to identify the exemption or other justification for their denial. You may want to consider pre-empting their “no such records exist” response and remind them of this requirement.

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to FAC 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.

Q: A county water agency has hired a consultant for a major capital project and has released the feasibility study done by the consultant but has not responded for a request to review the consulting contract itself. This isn’t academic: the agency asserts that the consultants’ excel spread sheet originals containing the actual cell-by-cell math calculations are proprietary to the consultant and the water agency itself isn’t privy to the calculations.

Here’s the dilemma: first, this means that the agency head has stood before the county board of supervisors endorsing a study and associated utility rates to end users without having had anyone in his agency replicate the spread sheets and verify the numbers; second it means no rate payer is privy to the math so that interested rate payers may not confirm that that methods used are accurate; and just as usefully no rate payers or voters who will be on the hook for a billion in new bonds will be able to run sensitivity analysis to assess potential alternatives to the proposed program and expenditures. This seems especially inappropriate in times of public revenue shortfalls in California. Are there precedents to shed light on this unhappy practice by the water agency?

A: It seems that you should be able to file a formal Public Records Act request in order to demand a copy of the employment contract between the county water agency and the consultant. Pursuant to Government Code § 6254.8, the employment contracts of public employees are expressly a matter of public record. I can’t think of a reason of why this provision would not also apply to contractors hired by an agency.

However, as best I can tell, there is no way to force a vendor to release the proprietary formulas or methodology they used to reach the prices agreed upon in the contract. So, the contract is a public record, but only to the extent of what lies within the four corners of the document. The code does not guarantee the public access to the “scratch-work” or calculations used to finalize the contract.

Further, Gov’t Code § 6254(k) creates a specific exemption for the records that are protected by state or federal laws, including the evidence code. California Evidence Code § 1060 allows parties not to disclose trade secrets so long as it doesn’t “conceal fraud or otherwise work injustice.”

This may allow the contractor to refuse to disclose the methodology for how it reached its final numbers as long as they can demonstrate that doing so would not perpetrate injustice or conceal fraud. So, trade secrets are normally exempt from disclosure, but without more precise insight about what information they’re protecting, it’s not possible to run through the analysis courts have established to determine if their methodology/formulas actually garner “trade secret” protection under the law.

Whether their calculations are an actual trade secret or just proprietary information is unclear, but there are examples where even proprietary information can be withheld (e.g., the Tax Code prevents local tax agencies from releasing proprietary information they acquire about companies during audits or other collections).

One way you might be able to obtain the information you’re looking for is through the Brown Act. As you may know, the Brown Act is the law that regulates the conduct of the governing bodies of all local public agencies. The Brown Act is intended to provide public access to local government meetings and serves to facilitate participation in all phases of local government decision-making.

One of the requirements of the law is that the public be given access to copies of any “agenda, background materials, and any other writings related to matters for public discussion.” Gov’t Code § 54957.5.

So, if the water agency circulated any type of written information at a meeting of the County Board of Supervisors, you are entitled to a copy of that. You also may obtain records if the water agency presented information to the Board of Supervisors in a closed session.

The public has the right to hear oral reports of certain actions taken in closed session at an open session held afterwards. Gov’t Code § 54957.1(a).

Additionally, upon the submission of a written request, the public has the right to receive copies of any contracts, settlement agreements or other documents finally approved or adopted in the closed session. Gov’t Code § 54957.1(b).

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to FAC 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.

Q: A council member has claimed in public meetings and in the press to have received email regarding a particular issue. Our PRA requesting those email have been rejected by the city because they do not have email accounts for council members. However on the city website the link to contact council members is the council member’s personal email account.

If the city is listing the personal email as the contact, then shouldn’t email from that account be available to the public through a PRA to the City?

A: Indeed, the issue of public officials using private email accounts and mobile phones to conduct the public’s business seems to be becoming a pervasive problem.

It would seem that if a government official uses a personal email account to send messages relating to the conduct of the public’s business, a strong argument could be made that those messages should be public. Otherwise, important government business could be conducted in secret. How a court might decide the question is not certain, however, and would depend in part on the facts of the particular case.

In January 2007, a newspaper in Tracy requested communications between city officials and the Lawrence Livermore National Laboratory. Although the city produced certain emails, it did not produce e-mails between a city councilwoman from her personal email account and the lab. After the newspaper sued for the release of the e-mails, the trial court decided that the councilwoman was not a “local agency” subject to the PRA and that the writings of an individual council member that were not prepared, owned, used, or retained by the city were not “public records” subject to the PRA. Tracy Press, Inc. v. Superior Court, 164 Cal. App. 4th 1290, 1294 (2008) (dismissing on procedural grounds the newspaper’s attempt to have appellate court overturn the trial court’s decision).

Unfortunately, the Court of Appeal did not reach the substantive issue of whether the councilwoman’s emails from her private account were subject to the PRA, but instead only noted the trial court’s finding on this front regarding her non-status as a “local agecy,” and then disposed of the case on procedural grounds.

The Court of Appeal did say that “[i]f [the councilwoman] had emailed from the City’s offices, discussing City business, it is undeniable that the records would be ‘public records’ that must be produced. But this proceeding presents a novel and important issue: whether personal e-mails sent without using the City’s resources but discussing the City’s business are ‘public records.’” Id. at 1300.

Note, however, that in the context of legislators, the Court of Appeal in Rogers v. Superior Court, 19 Cal. App. 4th 469, 479-81 (1993), held that records of telephone calls made by city council members from city-owned cell phones and home offices were exempt from disclosure pursuant to the deliberative process privilege, which may allow nondisclosure of records relating the deliberations of agency officials.

This particular privilege is found in the Act’s “catch all” exemption, Gov’t Code § 6255. In coming to this conclusion, the court in Rogers stated:

“Disclosing the telephone numbers of persons with whom a city council member has spoken discloses the identity of such persons and is ‘the functional equivalent of revealing the substance or direction’ of the judgment and mental processes of the city council member. … [R]outine public disclosure of such records would interfere with the flow of information to the government official and intrude on the deliberative process.”

If the city has advertised council members’ personal email addresses on its website, and has invited the public to communicate with council members through those email addresses, it would seem those email accounts are the council members’ de facto accounts for city business, and as such there would seem to be a strong argument that those records relating to the public’s business are subject to disclosure under the Public Records Act.

The danger of protecting such records related to personal cell phones and email accounts from disclosure is that it could create a mechanism to keep important government activity secret.

But the question is still a live one in California and in many other states. The release earlier this year of Sarah Palin’s emails from her personal account supports the notion that government officials cannot escape public records laws by conducting business through private modes of communication.

The issue has certainly caught the attention for various media organizations around the country: http://www.signonsandiego.com/news/2011/jun/17/gray-area-public-officials-on-private-emails/ (article from San Diego Union-Tribune).

If you haven’t done so already, you might want to write to submit a written request for the records to the city, and specify that you seek emails sent from council members’ email accounts, as advertised on the city’s website, that relate to official business.

As it sounds like the city has already done, it might push back and claim the records are not subject to disclosure, to which you might respond with the arguments above in favor of disclosure. You can find more information about the Public Records Act, including a sample request letter, at the First Amendment Coalition web site at http://www.firstamendmentcoalition.org/category/resources/access-to-records/.

Finally, as a former reporter, the fact that council members are using personal emails for official communications may be a story worthy of coverage by local media. I have heard from another FAC inquirer that the article from the Union-Tribune in San Diego prompted officials there to instruct elected officials there that only the county’s email system should be used when discussing public business.

It may be worth contacting the local media and pitching a story about this problem. (Coincidentally, I was a newspapers reporter for the Morro Bay Sun-Bulletin, and then the Tribune, from 1999-2002; I believe I interviewed you on at least one occasion regarding the Los Osos sewer project.)

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to FAC 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.

Q: I’m trying to obtain records for the LA United School District’s spending for 2010 in digital format, but the LA USD Office of the General Counsel is asking for 25 cents per page to send the digital information to us.

They’ve explained that this is based on the usual fee rate for pages that are photocopied, but as we aren’t asking for any physical copies this rate seems inappropriate. I’ve looked at California’s public records laws and I don’t think the 25 cents per page is representative of direct costs of duplication and I’m not sure if the estimate is legal.

I’ve gone back and forth on this and I would really appreciate if someone could help me understand whether the county can legally assess these kinds of fees for public records.

A: The default rule for electronic records is that “[t]he cost of duplication shall be limited to the direct cost of producing a copy of a record in an electronic format.” Id. (emphasis added).

In other words, the agency is permitted to charge for staff time spent in performing the copying, but not the searching for or retrieval of the records.

In addition, if the agency gives you the records on a CD or some other tangible recording device, it is permitted to pass on the actual cost of the blank CD.

The important thing here is that the copying rate charged must be based on the actual costs of duplication. As you point out, it may be unreasonable to charge 25 cents per page given that the agency is not required to expend any staff time in running a photocopying machine to make paper copies of the records.

In County of Santa Clara v. Superior Court, 170 Cal. App. 4th 1301,1336 (2009), a case that involved access to electronically stored GIS basemaps, at the end of the day, the “direct costs” ended up being $3.10 for each CD (multiplied by four = $12.40).

You may want to write to the school district ask them how the 25-cent-per-page charge reflects the “direct cost of producing a copy of a record in an electronic format,” and perhaps relate your understanding of what is permissible with respect to costs related to duplicating electronic records.

It seems that if the files are easily accessible, the “direct cost of duplication” should not add up to much more than the cost of the CD to which the records are transferred, and the de minimis staff time involved for pushing a button to transfer those records onto the CD. The agency must be able to demonstrate how it calculated those costs using real data.

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to FAC 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.

Q: Two years ago, I filed a citizens complaint with the Sheriff’s Department. This complaint was against the sheriff and his deputies.

I have requested copies of all documents compiled in their internal investigation and they have informed me that documents concerning personnel are exempt. I just want copies of my complaint plus any correspondence that is related to my complaint. I lost my file in this matter and am trying to recoup.

I have sent the sheriff two letters but he refuses to comply with my request. could you please advise me as what to do now. There was a lot of controversy concerning the case.  I am simply asking for copies of documents that I believe I am entitled to.

A: Although the California Public Records Act generally requires that the records of state and local governmental agencies are open to the public for inspection and copying, Govt. Code section 6253, the Act does list certain categories of records that are exempt from disclosure. Among these are “records of complaints to, or investigations conducted by . . . any state or local police agency.” Govt Code section 6254(f).

Moreover, as you noted, the records may further be exempt as part of the personnel records of the governmental employees about whom the complaint pertains. Govt. Code section 62549c).

Therefore, the records you seek need not be disclosed.

You maybe able to obtain a copy of your complaint letter only by writing to the agency and specifically waiving any privacy interest you have in the letter, and/or by agreeing that the names of the deputies may be redacted. That may address he privacy concerns which justify each exemption.

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to FAC 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.

California Senator Leland Yee of San Francisco intends to introduce a number of bills in 2012 to give the public greater access to the workings of their government.

The bills include SB 1000 keeping the California Public Utilities Commission from withholding information about their regulation of PG&E responsible for a recent catastropic fire and SB 1001 that would improve the state’s campaign finance and lobbying database. The database has crashed several times in the past and needs updating. -db

From the San Francisco Bay Guardian, January 3, 2012, by Steven T. Jones.

Full story

The Anaheim City Attorney is investigating an e-mail sent by a planning department official ordering employees to purge unnecessary records at the risk of disciplinary action.

The order came after the Voice of OC filed a California Public Records Act request for communications to and from city council members. -db

From the Voice of OC, January 4, 2012, by Adam Elmahrek.

Full story

Q: My CPRA request to review the 911 recording/transcript of a 2003 death was denied by the LAPD.

While the cause of death was determined to be a knife wound the coroner declined to rule on whether the incident was a suicide or homicide. Prior to my formal request, the police refused to discuss the case citing its ”ongoing nature.”

My formal request to review the 911 call for service was denied because it was not deemed contemporaneous. The denial was based on the 1993 Kuzar case.

It is my understanding that case recognizes that forcing agencies to search for old records could saddle them with a heavy financial burden. But in this case, it’s likely the 911 tape is easily accessible.

Also, if the case is in fact still ongoing, wouldn’t that constitute contemporaneous police activity? I’d like to sue the LAPD into releasing the information, but do I have any legal standing?

A: Although you didn’t specifically raise the issue of 911 tapes, per se, that might be a good place to start. We are not aware of a case that specifically says that tapes of 911 calls or similar calls to law enforcement must be released, but there are two cases that touch on the subject

In the first case, a city refused to release tapes of calls between the city’s police department and another law enforcement agency because the city considered portions of the tapes to be “embarrassing and irrelevant.” Fontana Police Dep’t v. Villegas-Banuelos, 74 Cal. App. 4th 1249, 1251 (1999).

The trial court ordered the city to release the tapes and the Court of Appeal affirmed an award of attorneys’ fees to the requester under the PRA. Among other things, the Court of Appeal said that the “Appellant was legally entitled to the unedited tapes which [the city] refused to produce until ordered to do so by the trial court.” Id. at 1252.

In the second case, decided two years after Fontana, the California Supreme Court held that the PRA did not require the release of certain “records … concern[ing] a citizen’s call to report a possible crime and the department’s response thereto.” Haynie v. Superior Court, 26 Cal. 4th 1061, 1064 (2001).

The Supreme Court held that the exemption in Government Code section 6254(f) for “records of investigations,” like the exemption in the same section for “records of complaints” to law enforcement, allows law enforcement to withhold the records completely. Law enforcement may have to release certain specific information in the records, but not the records themselves. Id.; see also Williams v. Superior Court, 5 Cal. 4th 337 (1993). Unfortunately, this precedent means that an agency could prevail with arguments that the recording/transcript you seek is exempt as an investigatory record.

As to the non-contemporaneous justification the agency has actually asserted, there may not be a cut-and-dried answer. Although the financial burden of compiling historical records was at issue in the Kusar case, the court also emphasized “the common law tradition of contemporaneous disclosure of individualized arrest information in order to prevent secret arrests. County of Los Angeles v. Superior Court, 18 Cal. App. 4th 588, 598 (1993).

In addition, there does not appear to be a great deal of guidance from subsequent authority as to exactly what constitutes “contemporaneous” activity. Your argument that an ongoing investigation means that the underlying activity is, by definition, contemporaneous might be persuasive, but a court might also decide that something that happened in 2003 is no longer contemporaneous, regardless of whether investigation continues.

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.

Q: The city department of Code Enforcement wants to fine me $2500 per day up to $100,000 for code violations at my resident. When I made a public record request to see the evidence that the City’s has gathered on my property, it was denied stating that the case is still open and considered an active investigation. This matter has gone over a year now. No proof or evidence will be provided, but they are happy to fine me every single day until I comply with their ultimatum.

A: Under California’s Public Records Act, “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” is a public record and must be disclosed to the public upon request unless a provision of the PRA exempts it from disclosure. Govt. Code § 6252-6253.

Section 6254(f) of the PRA exempts from disclosure:

“[r]ecords of complaints to, or investigations conducted by, or records of intelligence information or security procedures of, the office of the Attorney General and the Department of Justice, … and any state or local police agency, or any investigatory or security files compiled by any other state or local police agency, or any investigatory or security files compiled by any other state or local agency for correctional, law enforcement, or licensing purposes.”

Investigatory files of the city’s code enforcement office might qualify for this exemption to the extent that they are records maintained by a local police agency or part of security files compiled by a local agency for law enforcement purposes. See, e.g., Black Panther Party v. Kehoe, 42 Cal. App. 3d 645, 653 (1974) (complaints submitted to state licensing bodies about collections agencies were exempt under 6254(f)).

However, if 6254(f) applies, the PRA nevertheless provides that state and local law enforcement agencies:

“shall make public the following information, except to the extent that disclosure of a particular item of information would endanger the safety of a person involved in an investigation or would endanger the successful completion of the investigation or a related investigation: … the time, substance, and location of all complaints or requests for assistance received by the agency and the time and nature of the response thereto, including, to the extent the information regarding crimes alleged or committed or any other incident investigated is recorded, the time, date, and location of occurrence, the time and date of the report, the name and age of the victim, the factual circumstances surrounding the crime or incident, and a general description of any injuries, property, or weapons involved.”

Of course, this information might not be of much use to you at this point, given you probably are already aware of the basic facts related to your situation.

I also did not see anything in the case law indicating that the city is required to provide you with access to those records upon which it is basing its code violation.

Other considerations related to “due process” may be at stake here — i.e., was the city required to provide you with a hearing prior to assessing any fine, etc. This inquiry could depend on whether you have been accused of a criminal or civil offense (in general, the standards for due process are much higher in connection with criminal offenses).

It may be that you are entitled to a hearing on the issue, or the city has some sort of administrative procedure for appealing your alleged violation.

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to FAC 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.

Q: Two family members were involved in a murder/suicide. On the night of the incident the homicide detective told me I would be able to get copies of the investigation once done.

The investigation is done, but I am being told that I have no right to files and that the homicide dept. does not have to disclose their investigation files. I spoke to the district attorney’s office and the local sheriff station. Both said as far as they knew I as a member of the immediate family I had the full right to the file.

I sent in a formal request under the Public Records Act but heard nothing back. I followed up and ultimately got to a Sergeant. He said it was largely a factor of time to redact any personal information of witnesses, etc. He would ”try” to arrange for me to come in so he could verbally reveal information as he saw fit and that would not take up too much of his time. This is unacceptable to me. How do I proceed to have copies of the file(s) made for me?

A: I am very sorry to hear about your loss. I hope this information may be of some use in obtaining the records you seek.

In your case, it sounds like the agency has not taken the position that the records you seek are exempt from disclosure. Rather, it sounds like the agency is trying to avoid having to redact exempt information from the records by instead verbally reporting information to you.

While it is conceivable in certain extreme cases that the burden of collecting and preparing voluminous records might provide some basis for an agency to refuse to produce or delay in producing records, this does not sound like an extreme case. That is, there is no evident justification for the agency to avoid its obligation to “make the records promptly available” to you. Gov’t Code § 6253(b).

The Public Records Act provides that:

“[p]ublic 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.” Gov’t Code § 6253(a).

The Act further provides that:

“[e]xcept 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.” Gov’t Code § 6253(b).

As for timing,

“[e]ach agency, upon a request for a copy of records, shall, within 10 days from receipt of the request, determine whether the request, in whole or in part, seeks copies of disclosable public records in the possession of the agency and shall promptly notify the person making the request of the determination and the reasons therefor.

In unusual circumstances, the time limit prescribed in this section may be extended by written notice by the head of the agency or his or her designee 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 notice shall specify a date that would result in an extension for more than 14 days. When the agency dispatches the determination, and if the agency determines that the request seeks disclosable public records, the agency shall state the estimated date and time when the records will be made available.

As used in this section, “unusual circumstances” means the following, but only to the extent reasonably necessary to the proper processing of the particular request:

(1) 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;

(2) The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records that are demanded in a single request;

(3) The need for consultation, which shall be conducted with all practicable speed, with another agency having substantial interest in the determination of the request or among two or more components of the agency having substantial subject matter interest therein;

(4) The need to compile data, to write programming language or a computer program, or to construct a computer report to extract data.” Gov’t Code § 6253(c).

From a practical perspective, it might be useful to follow up your initial request with a written follow-up letter setting out when you made the initial request and describing the subsequent (in)action of the agency. It might be useful to explicitly note the offer of a verbal report so that you can make it clear that you maintain your request for copies of the actual records.

It can sometimes also be useful to point out that if you are forced to file a lawsuit to enforce the Public Records Act and you prevail in that litigation, the agency would be liable for your attorneys’ fees. Gov’t Code § 6259 (“The court shall award court costs and reasonable attorney fees to the plaintiff should the plaintiff prevail in litigation filed pursuant to this section.”).

You can find more information about the Public Records Act on the First Amendment Coalition web site at 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.

Q: Can a private company make a profit by selling public information? Or is there a law that says they cannot take public information and charge people to look at it?

A: There is no restriction on a private entity that obtains public records from charging someone for copies of those records. The Public Records Act’s prohibition on charging for copies, beyond the direct costs of duplication, applies only to governmental agencies. Those who want records are able to get them for the costs of duplication directly from the agency.

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to FAC 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.

In a case brought by the Los Angeles Times, the Pasadena Sun and the Sacramento Bee, a Sacramento Superior Court judge ordered the California Assembly to release budget records under the California Public Records Act.

Lawyers for the Assembly did not participate in oral arguments before the judge last week. -db

From the Los Angeles Times, December 5, 2011, by Joe Piasecki.

Full story

A California appeals court ruled that a man who wanted to find out if he were registered in the Domestic Violence Restraining Order System could not have access under the Information Practices Act of 1977.

A judge had earlier ruled that the registry was exempt under the California Public Records Act. -db

From the Metropolitan News-Enterprise, December 5, 2011, by a MetNews Staff Writer.

Full story

A California research group says that government agencies trying to cope with budget shortfalls are resorting to increasing fees for copies of public documents in violation of the state’s Public Records Act.

The act prohibits charges for retrieving public records to the costs of duplication. But Sacramento County charges $13 for page 1 and $3 for each page thereafter. -db

From the Courthouse News Service, December 1, 2011.

Full story

Q: Message I’m trying to obtain records of supervision for a high-risk parolee who is accused of murder. I sent a public records request and received a rejection letter that cites dozens of government codes in its defense. But I wonder if there’s a way to fight that rejection. After all, that information has become public in several high-profile cases such as Phillip Garrido and John Albert Gardner. I have the letter of rejection if you would like to see it, and I hope to get some help in getting valuable information to determine if parole agents were doing their jobs.

A: California law provides some fairly broad protections for many different kinds of law enforcement records. As you might expect (or have encountered first-hand), it is common for agencies to reject requests for law enforcement records out of hand, even if the requests include some records that are subject to disclosure under the Public Records Act.

The Garrido case you mentioned is a good example of how this often works. In that case, a number of media entities sought various records related to Garrido’s parole from the California Department of Corrections and Rehabilitation (CDCR) and records related to the investigation of the Office of the Inspector General (OIG) of the parole subsequent to his arrest in 2009. Both the CDCR and OIG refused to disclose most of the records requested.

The media entities sued, and the Sacramento Superior Court ordered the agencies to prepare a list of the responsive documents together with a justification as to why each was exempt from disclosure. Both the CDCR and OIG requested relief from that order, which the Court of Appeal granted for the OIG but not for the CDCR.

The trial court ultimately concluded that many of the records sought were exempt from disclosure under a variety of statutory authority. The court said some of the records were exempt as “Criminal Offender Record Information” under Gov’t Code Section 6254(k), Penal Code Sections 11075(a), 11076, 11081, and 11105, and the case Younger v. Berkeley City Council, 45 Cal. App. 3d 825, 832-833 (1975). The court said that information was properly redacted from many other parole records under the same authority (it is not clear from the court’s order precisely what information was redacted).

The court also found a mental health examination to be exempt in its entirety and that information reflecting “confidential medical information” could be redacted from other records based on HIPAA and the California Confidentiality of Medical Information Act. The court also said that parole records from the state of Nevada were exempt under Evidence Code Section 1040 (the so-called “official information” privilege).

The court said that the Case Management Review (which was evidently an appraisal of the performance of parole officers) was exempt as a peace officer personnel record under Penal Code Section 832.7(a). The court did, however, order that a “draft Executive Review” (evidently an internal summary of the review of the parole supervision) be disclosed.

Without knowing more about the particular records at issue, it is difficult to evaluate the merit of the trial court’s decisions. California’s statutes on “criminal offender record information” are complicated and unclear in many respects and have not been interpreted by the courts extensively.

Meanwhile,  the Court of Appeal considered the OIG’s request that it not be ordered to disclose the investigative materials underlying the “special public report” it had issued regarding CDCR’s parole supervision of Garrido. (Under California law, the OIG oversees CDCR and has the power to investigate CDCR activities. Penal Code Section 6131.

The statute calls for the OIG to prepare two different reports — one confidential and the other public. Id.) The Court of Appeal held that the OIG had complete discretion as to whether the underlying investigative materials would be disclosed (meaning that it could simply decide not to release them without meeting any particular standard or otherwise justifying the decision). Office of the Inspector General v. Superior Court, 189 Cal. App. 4th 695, 707 (2010). The Court of Appeal went on to find that the materials were exempt from disclosure as law enforcement investigatory records under Gov’t Code Section 6254(f). Id. at 708-10.

With respect to your request, there may well be a basis to push back on the denial of access of many of the records you requested. Among other things — as you noted — to the extent any of the information contained in the records has already been disclosed in one form or another, the rationale for withholding those records may be significantly undermined. In addition, to the extent the agency essentially spewed a string of authority but didn’t really explain how that authority justified keeping particular records from the public, it might be useful to push back for a more meaningful explanation of how the cited authority justifies withholding the records (or why redaction of the records is not a viable alternative).

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.

Q: I’m a reporter trying to access information regarding a lawsuit against the local school district.

A decision was made but so far, no documents of that decision have reached the court records department. The only document filed is a single-page notation that the case was heard. There’s no indication the records have been sealed. I’ve filed a CPRA letter with the district, but school officials say they have no documents in hand.

The case is important because it potentially affects taxpayers and has already cost the district $2.5 million in legal fees.

So — how can I get information about the decision?

A: It sounds like the barrier you have encountered is administrative rather than substantive — that is, the court is not necessarily telling you that you are not allowed to access the decision; rather, it simply claims not to have possession of the record itself.

Unfortunately, these administrative barriers are becoming more and more common in California’s courts. As a practical matter, you may want to try to contact the clerk of the judge who issued the decision. He or she may be in the best position to let you know what the status of the decision is (i.e., whether it has been issued in written form) and may be able to give you practical advice for tracking down any written order or decision that has issued. It sounds like you have already tried obtaining the records from the District under the Public Records Act, which would probably be the next best source of information.

Given the length of the delay, you might also consider a letter to the court, especially if you determine that a written decision exists but has simply not been made available. This might also serve the more general goal of making sure courts are aware that administrative deficiencies in providing access to court records — if that is what is behind this situation — can have a very real negative effect on news reporting.

Both the California and federal constitution provide a right of public access to court records. Copley Press, Inc. v. Superior Court, 6 Cal. App. 4th 106, 111 (1992) (“Both the federal (First Amendment to the United States Constitution ) and the state (article I, section 2(a), California Constitution) Constitutions provide broad access rights to judicial hearings and records.”).

The right of access attaches to “the various documents filed in or received by the court,” id. at 113, and extends to both criminal and civil records. NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal. 4th 1178, 1208-1210 & n.25 (1999) (“We believe that the public has an interest, in all civil cases, in observing and assessing the performance of its public judicial system, and that interest strongly supports a general right of access in ordinary civil cases.”) (emphasis in original); Burkle v. Burkle, 135 Cal. App. 4th 1045, 1062 (2006) (“[N]o basis exists for concluding that court records should be differentiated from courtroom proceedings for purposes of First Amendment access rights.”); Savaglio v. Wal-Mart Stores, Inc., 149 Cal. App. 4th 588, 596 (2007) (“The public has a First Amendment right of access to civil litigation documents filed in court and used at trial or submitted as a basis for adjudication.”); Estate of Hearst v. Trustees of Hearst Testamentary Trust, 67 Cal. App. 3d 777, 782 (1977) (“[T]here can be no doubt that court records are public records, available to the public in general, including news reporters, unless a specific exception makes specific records nonpublic.”); Oregonian Publ’g Co. v. United States Dist. Court, 920 F.2d 1462, 1465 (9th Cir. 1990) (“Under the first amendment, the press and the public have a presumed right of access to court proceedings and documents” that “can be overcome only by an overriding right or interest ‘based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.’”) (quoting Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510 (1985)).

Courts have recognized that significant delays in access are the functional equivalent of access denials and thus are unconstitutional unless the procedural and substantive requirements for sealing records have been satisfied. For example, the California Supreme Court rejected the argument that “‘[d]elaying media access … is not a prior restraint warranting exacting First Amendment scrutiny’” because “temporarily seal[ing] the hearing transcripts …preclude[s] access to information in the first instance” and thus is “subject to ‘exacting First Amendment scrutiny.’” NBC Subsidiary , 20 Cal. 4th at 1219 n.42. Similarly, the First Circuit has observed that “even a one to two day delay impermissibly burdens the First Amendment,” Globe Newspaper Co. v. Pokaski, 868 F.2d 497, 507 (1st Cir. 1989), and the Ninth Circuit has found that 48 hour delays in access constituted “a total restraint on the public’s first amendment right of access even though the restraint is limited in time.” Associated Press v. U.S. District Court, 705 F.2d 1143, 1147 (9th Cir. 1983); accord, e.g., Grove Fresh Distribs., Inc. v. Everfresh Juice Co., 24 F.3d 893, 897 (7th Cir. 1994) (“[i]n light of values which the presumption of access endeavors to promote, a necessary corollary to the presumption is that once found to be appropriate, access should be immediate and contemporaneous … ‘Each passing day may constitute a separate and cognizable infringement of the First Amendment.’”) (quoting Nebraska Press Ass’n v. Stuart, 423 U.S. 1327, 1329 (1975)); Courthouse News Service v. Jackson, 38 Media L. Rptr. 1890, 1892-94, 2009 U.S. Dist. LEXIS 62300, at *8-14, 2009 WL 2163609, at *3-5 (S.D. Tex. July 20, 2009) (issuing preliminary injunction ordering state trial court to provide same-day access to newly filed civil complaints); Estate of Hearst, 67 Cal. App. 3d at 785 (even temporary limitations on public access to court records require a “sufficiently strong showing of necessity”).

Q: I submitted a request arrest and incident reports from a police department for a case involving my client but I got a call from someone in the Records Department who said that I needed to submit signed authorization from my client. Is that the case in your practice?

A: If a person were submitting a request for reports under the Public Records Act, then there would be no requirement to submit any kind of written request. But access to arrest and incident requests is fairly limited under the PRA, so your client may have greater rights to access those records due to his or her involvement in the case than a member of the public would have under the PRA.

Under the PRA, many law enforcement records are exempt from disclosure (see below for exact language of exemption language). Specifically, the following are exempt: “[r]ecords of complaints to, or investigations conducted by … any state or local police agency, or any investigatory or security files compiled by any other state or local police agency, or any investigatory or security files compiled by any other state or local agency for correctional, law enforcement, or licensing purposes.” Gov’t Code Section 6254(f).

While some information must be disclosed under the PRA, it may not be everything your client is looking for.

Notwithstanding any other provision of this subdivision, state and local law enforcement agencies shall make public the following information, except to the extent that disclosure of a particular item of information would endanger the safety of a person involved in an investigation or would endanger the successful completion of the investigation or a related investigation:

(1) The full name and occupation of every individual arrested by the agency, the individual’s physical description including date of birth, color of eyes and hair, sex, height and weight, the time and date of arrest, the time and date of booking, the location of the arrest, the factual circumstances surrounding the arrest, the amount of bail set, the time and manner of release or the location where the individual is currently being held, and all charges the individual is being held upon, including any outstanding warrants from other jurisdictions and parole or probation holds.

(2) Subject to the restrictions imposed by Section 841.5 of the Penal Code, the time, substance, and location of all complaints or requests for assistance received by the agency and the time and nature of the response thereto, including, to the extent the information regarding crimes alleged or committed or any other incident investigated is recorded, the time, date, and location of occurrence, the time and date of the report, the name and age of the victim, the factual circumstances surrounding the crime or incident, and a general description of any injuries, property, or weapons involved. The name of a victim of any crime defined by Section 220, 236.1, 261, 261.5, 262, 264, 264.1, 265, 266, 266a, 266b, 266c, 266e, 266f, 266j, 267, 269, 273a, 273d, 273.5, 285, 286, 288, 288a, 288.2, 288.3 (as added by Chapter 337 of the Statutes of 2006), 288.3 (as added by Section 6 of Proposition 83 of the November 7, 2006, statewide general election), 288.5, 288.7, 289, 422.6, 422.7, 422.75, 646.9, or 647.6 of the Penal Code may be withheld at the victim’s request, or at the request of the victim’s parent or guardian if the victim is a minor. When a person is the victim of more than one crime, information disclosing that the person is a victim of a crime defined in any of the sections of the Penal Code set forth in this subdivision may be deleted at the request of the victim, or the victim’s parent or guardian if the victim is a minor, in making the report of the crime, or of any crime or incident accompanying the crime, available to the public in compliance with the requirements of this paragraph.

Id.

Assuming that any involvement in the incident by your client entitles your client to greater access than what is provided by the PRA, the police may be on solid ground in asking for written authorization from your client.

One option would be to ask the records department for the legal basis for the request for authorization. It may be spelled out in a statute.

Or it may be that a statute spells out that someone in your client’s shoes is entitled to greater access and that the request for written authorization is a reasonable way to establish that your client is among the class of people to whom greater access is owed.

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.

Q: I was wondering if a city councilmember uses his personal email address as his primary source of contact, lists it on a city’s website as his email address, if any communication done on that email address is still exempt from the California Public Records Act? Is any legislation is coming down the line to address that?

A: First of all, there is no rule that e-mail communications regarding the public’s business that are sent to or from an official’s personal e-mail account are exempt from the PRA. That issue hasn’t been definitively decided in California, and there are strong arguments as to why e-mails to or from personal accounts should be disclosed under the PRA when the e-mails relate to the public’s business. As detailed below, there is a California court case on this issue, but it did not resolve the basic issue.

In January 2007, a newspaper in Tracy, California, requested communications between city officials and the Lawrence Livermore National Laboratory. Although the city produced certain e-mails, it did not produce e-mails between a city councilwoman from her personal e-mail account and the lab.

After the newspaper sued for the release of the e-mails, the trial court decided that the councilwoman was not a “local agency” subject to the PRA and that the writings of an individual council member that were not prepared, owned, used, or retained by the city were not “public records” subject to the PRA. Tracy Press, Inc. v. Superior Court, 164 Cal. App. 4th 1290, 1294 (2008) (dismissing on procedural grounds the newspaper’s attempt to have appellate court overturn the trial court’s decision).

The Court of Appeal said that “[i]f [the councilwoman] had e-mailed from the City’s offices, discussing City business, it is undeniable that the records would be ‘public records’ that must be produced. But this proceeding presents a novel and important issue: whether personal e-mails sent without using the City’s resources but discussing the City’s business are ‘public records.’” Id. at 1300.

Unfortunately, the Court of Appeal disposed of the case on procedural grounds and never reached the substantive issue. As far as I know, no reported decision in California has addressed the issue since.

Tracy Press does not provide an answer to the “novel and important issue” of “whether personal e-mails sent without using the [government] resources but discussing [government] business are ‘public records.’” Id.

A California court deciding the issue should be working from the general body of law applying the PRA and would not be bound in any way by the determination made by the trial court in the Tracy Press case. Moreover, although the merits of the action were not reached by the Court of Appeal, the statement that any e-mails from the elected official e-mailed from the government office, discussing government business are “undeniabl[y]” public records “that must be produced” could be useful in efforts to obtain such records under the PRA. Id.

Even if a government official uses a personal e-mail account to send or receive messages relating to the conduct of the public’s business, there would seem to be a strong argument that those messages should be public. Otherwise, important government business could be conducted in secret.

Moreover, to the extent certain elected officials conduct almost all business from a residence or other non-governmental location and communicate about public business through personal e-mails, the rationale for treating such communications as subject to disclosure under the PRA would seem to be even stronger, as the contrary ruling would shield all of that person’s work from the public.

In a situation like you describe, where an official holds his personal e-mail address out to the public in the context of his official capacity, the argument should be even stronger.

Although this issue comes up more and more frequently, I am not aware of any pending legislation in California that would address it.

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.

Q: Our newspaper made an public records request for ”all emails to and from city employees” regarding a new parking meter system the city is using.  Our intention is to see whether employees have written emails stating that the system is not working properly.

In response, the city attorney exempted an unspecified number of emails citing a ’deliberative process’ exemption in CCC 6252(d), 6254(a) and (k) and 6255. He cited cases including Rogers v. Superior Court 19 Cal. App. 4th 469 (1993).

I’m contacting you to see if he is citing a valid exemption, and whether we would have any other approach under the CPRA that might yield the emails.

A: Given that the city attorney has cited the Rogers decision, it may be that he is claiming an exemption for those emails that were sent to and from personal email accounts.

The issue of public officials using private email accounts and mobile phones to conduct the public’s business seems to be becoming a pervasive problem. It would seem that if a government official uses a personal email account to send messages relating to the conduct of the public’s business, a strong argument could be made that those messages should be public. Otherwise, important government business could be conducted in secret. How a court might decide the question is not certain, however, and would depend in part on the facts of the particular case.

In January 2007, a newspaper in Tracy requested communications between city officials and the Lawrence Livermore National Laboratory. Although the city produced certain emails, it did not produce e-mails between a city councilwoman from her personal email account and the lab. After the newspaper sued for the release of the e-mails, the trial court decided that the councilwoman was not a “local agency” subject to the PRA and that the writings of an individual council member that were not prepared, owned, used, or retained by the city were not “public records” subject to the PRA. Tracy Press, Inc. v. Superior Court, 164 Cal. App. 4th 1290, 1294 (2008). The Court of Appeal said that:

“[i]f [the councilwoman] had emailed from the City’s offices, discussing City business, it is undeniable that the records would be ‘public records’ that must be produced. But this proceeding presents a novel and important issue: whether personal e-mails sent without using the City’s resources but discussing the City’s business are ‘public records.’” Id. at 1300. Unfortunately, the Court of Appeal disposed of the case on procedural grounds and never reached the substantive issue.

Note, however, that in the context of legislators, the Court of Appeal in Rogers v. Superior Court, 19 Cal. App. 4th 469, 479-81 (1993), held that records of telephone calls made by city council members from city-owned cell phones and home offices were exempt from disclosure pursuant to the deliberative process privilege, which may allow nondisclosure of records relating the deliberations of agency officials. This particular privilege is found in the Act’s “catch all” exemption, Gov’t Code § 6255.

In coming to this conclusion, the court in Rogers stated:

“Disclosing the telephone numbers of persons with whom a city council member has spoken discloses the identity of such persons and is ‘the functional equivalent of revealing the substance or direction’ of the judgment and mental processes of the city council member. … [R]outine public disclosure of such records would interfere with the flow of information to the government official and intrude on the deliberative process.”

It is not entirely clear that the Rogers case would apply to the facts that you describe. For one thing, you are not seeking records of telephone calls, but rather written records relating to a specific subject that were sent to and from city staff members. Second, it is not clear that the city attorney has identified those particular records that would be exempted pursuant to Rogers, and thus it may be that he is applying the deliberative process privilege very broadly, and is not providing adequate justification for why the privilege applies here, as required by statute.

Under the Act, “disclosure is favored,” and therefore “all exemptions are narrowly construed.” County of Santa Clara v. Superior Court, 170 Cal. App. 4th 1301, 1321 (2009). The key question is whether disclosure of the materials would expose an agency’s decision-making process in such a way as to discourage candid discussion with the agency and thereby undermine the agency’s ability to perform its functions. Times Mirror Co. v. Superior Court, 53 Cal. 3d 1325, 1342 (1991) (request for calendars of governor exempt from disclosure).

As stated in California First Amendment Coalition v. Superior Court, 67 Cal. App. 4th 159, 172-73:

“[n]ot every disclosure which hampers the deliberative process implicates the deliberative process privilege. Only if the public interest in nondisclosure clearly outweighs the public interest in disclosure does the deliberative process privilege spring into existence. The burden is on the Governor to establish the conditions for creation of the privilege.”

Since the deliberative process privilege is an extension of the “catch-all” exemption contained in Goverment Code § 6255, the agency has a statutory duty to “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 disclosing the record clearly outweighs the public interest served by disclosure of the record.” Gov’t Code § 6255(a).

Likewise, the city attorney cited the Act’s “preliminary drafts” exemption, which also requires that the “public interest in withholding those records” should clearly outweigh “the public interest in disclosure.” Gov’t Code § 6254(a). Again, the city attorney has a statutory duty to justify why those particular records should be withheld.

Finally, the city attorney has cited Government Code § 6254(k), which exempts “[r]ecords, 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 particular provisions is typically cited where there are records that may be encompassed by the attorney-client or attorney work-product privileges. Under Evidence Code sections 954 and 955, confidential communications between lawyer and client are privileged and do not have to be disclosed. Also, materials created by an attorney in the course of representing a client, known as “work product,” are generally protected from disclosure. Code of Civil Procedure § 2018.030.

The attorney-client exemption not only covers communications that are made pursuant to pending litigation, but also legal advice even where no litigation is threatened. Roberts v. City of Palmdale, 5 Cal. 4th 363, 371 (1993). This exemption, however, should not be construed broadly, but rather interpreted narrowly in the interest of disclosure. For example, the mere presence of legal counsel at a closed session meeting does not render discussions that take place during that meeting “confidential.” Register Division of Freedom Newspapers v. County of Orange, 158 Cal. App. 3d 893, 907-08 (1984).

Whether or not the communication is truly protected will likely turn on whether there are emails from the city attorney to city staff where he was dispensing legal advice regarding the parking meters. In other words, if there was no actual legal issue for which the city attorney was dispensing guidance to staff, then the city may not be able to refuse disclosure of the email under the attorney-client privilege exception.

Another Evidence Code section that is incorporated into the Public Records Act’s exemptions is section 1040, which grants a privilege for “official information,” which “means information acquired in confidence by a public employee int he course of his or her duty and not open, or officially disclosed, to the public prior to the time the claim of privilege is made.”

For this privilege to apply, two conditions must be met:

First, the information must have been truly “acquired in confidence” and not previously shared with the public. If the supplier of the information did not convey it in confidence or the agency did not then treat it as confidential, the privilege does not arise.

Second, “(A)ssurances of confidentiality are insufficient in themselves to justify withholding pertinent public information from the public” San Gabriel Valley Tribune v. Superior Court, 143 Cal. App. 3d 762, 776 (1983). To complete the privilege, disclosure must either be prohibited by federal or state law (which would make it exempt under Section 6254 (k) in any event), or “against the public interest” under a balancing of factors essentially the same as in Section 6255.

As with the exemptions cited above, the city attorney should be specific in both identifying the specific exemption that applies, as well as the reason that it applies to specific records that are being withheld.

You may want to write to the city, restating your request for the withheld emails, and stating why you think the records should be disclosed. You might want to add that if the city believes the records are not subject to disclosure, it should state the reasons for this determination, including the specific exemption that applies.

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to FAC 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.

Q: I am a journalist and victims advocate. I wanted to know about whether it was possible to get records of payments made by all  County agencies–including the District Attorney’s office–to a child psychiatrist.

The psychiatrist was arrested for molesting hundreds of boys and was under contract to the courts for four decades. We have reason to believe the DA’s office hired him as well, which would make their prosecution of him a conflict of interest.

Is it possible to get these records of payments, receipts, invoices, etc? If so, how do I make a request for these? Would they keep records as far back as the 1980s?

A: As you may already know, the Public Records Act provides that public records including “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,” are presumed to be open to the public. Gov’t Code § 6252(e).

Any qualifying records must be disclosed unless a specific provision of the Act or other law exempts them from disclosure. This includes any federal or state laws making records confidential.

There are many “general” exemptions under the Act that pertain to drafts of documents, notes, documents prepared for litigation or subject to attorney-client privilege, among others. See Gov’t Code § 6254(a)–(z). Under the Act, § 6254(k) also incorporates hundreds of “specific” exemptions that have been added over time. Many of these exemptions are listed, starting at § 6275.

Finally, there is a “catch-all” exemption that the government will sometimes invoke if a more specific exemption doesn’t apply. See Gov’t Code § 6255(a). This catch-all focuses on whether the public interest would be best served by disclosing or withholding the records. Id.

The District Attorneys’ (“DA”) office may attempt to invoke the impending litigation exemption, if, indeed, the bills are related to litigation that the DA’s office is currently involved in. This exemption applies to records that have been prepared for use in on-going litigation. Gov’t Code § 6254(b).

The fact that a requested record may be “involved in litigation” may not be sufficient to allow the agency to withhold the record. There is no court decision that I found that specifically interprets this exemption as applied to medical bills, although a California appellate court has stated that this exemption goes beyond attorney-client communications to encompass other materials specifically prepared for use in the litigation. See, e.g., City of Los Angeles v. Superior Court, 82 Cal. App. 4th 819, 830 (2000).

Still, it would seem that any information contained in the bills directly pertaining to litigation strategy could be redacted, with the actual billing information (i.e., how much the DA is paying its witnesses) left intact.

With respect to the attorney-client privilege, this would cover a “confidential communication” between the DA and its attorney (if applicable). “Confidential communication” is defined as “information transmitted between a client and his or her lawyer in the course of that relationship and in confidence by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interests of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted, and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship.” Evid. Code § 952.

In addition, materials created by an attorney in the course of representing a client — particularly those that reflect an attorney’s conclusions, opinions, legal research or theories — are considered attorney work product and are also generally protected from disclosure.

It seems unlikely that the attorney-client privilege would apply for the DA in the situation you described, but it is probably likely that the work product privilege would. All documents they created as part of their strategy in those cases, including discussions with Dr. Ayres, are protected. Unlike the pending litigation exemption mentioned above, this is true even though many years have passed since some of those cases transpired.

I am not aware of any specific provisions that exempt records of payments for psychiatric services; however, because there are so many highly-specific exemptions, just because I am unaware of one does not mean it has not been created.

An exemption for mental health records has been incorporated from the Welfare and Institutions Code §§ 4132 and 5328. Yet, this, like the general exemption for personnel and medical records in § 6254(c), seems to be geared more towards attempts to obtain the actual patient information rather than payment information.

If they reject a formal written request, their response will need to identify the exemption or other justification for their denial. Once armed with that information, it will be possible to better assess the legitimacy of their claim.

In making your request, Government Code § 6253(b) indicates that you must “reasonably describe an identifiable record or records.” The California Public Records Act does not require that the request be made in writing; however, that is something you may want to consider:

For one, it creates a record of when you made your request (in case you decide to litigate in the future).

Secondly, a written request then requires the agency to provide a written response. Gov’t Code § 6255(b).

There is also no requirement that you provide your name, address, or reason for the request. Gov’t Code § 6257.5.

You can find a sample request letter, at the First Amendment Coalition web site at http://www.firstamendmentcoalition.org/category/resources/access-to-records/. I’m not certain if they will have records going all the way back to the 1980’s, but they’ll have to disclose why they cannot or will not provide the records if they deny your request. Because their denial, if you receive one, will help answer many of your questions, I suggest you make a formal request and see how that progresses.

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to FAC 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.

Q: The police are refusing to release a report it is doing on a shooting. Many months have passed since the incident. They give no explanation for their actions. What would be the best way to proceed to get them to release the report?

A: As you may know, under California’s Public Records Act, public records — which include “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,” Gov’t Code § 6252(e) — are presumed to be open to the public and must be disclosed unless a specific provision of the Act or other law exempts them from disclosure.

Records that are exempt from disclosure under the PRA include:

“[r]ecords of complaints to, or investigations conducted by, or records of intelligence information or security procedures of, the office of the Attorney General and the Department of Justice, the California Emergency Management Agency, and any state or local police agency, or any investigatory or security files compiled by any other state or local police agency, or any investigatory or security files compiled by any other state or local agency for correctional, law enforcement, or licensing purposes.” Govt. Code § 6254(f) (see below in green for entire text of provision).

This exemption is fairly broad and generally makes it difficult to obtain police investigation records. While it is not the case that any report that a police department might create would automatically be exempt, any records related to complaints to or investigations conducted by a police department probably would be.

Note, however, that:

“state and local law enforcement agencies shall make public the following information, except to the extent that disclosure of a particular item of information would endanger the safety of a person involved in an investigation or would endanger the successful completion of the investigation or a related investigation: The full name and occupation of every individual arrested by the agency, the individual’s physical description including date of birth, color of eyes and hair, sex, height and weight, the time and date of arrest, the time and date of booking, the location of the arrest, the factual circumstances surrounding the arrest, the amount of bail set, the time and manner of release or the location where the individual is currently being held, and all charges the individual is being held upon, including any outstanding warrants from other jurisdictions and parole or probation holds.” Govt. Code § 6254(f)(1).

To the extent this kind of information is among what you are looking for, you may be able to obtain at least the information, if not the report itself.

With respect to procedure for trying to get the report, the first step would be to make a request under the PRA. Requests need not be in writing, but a written request should result in a written response.

If a denial, the response should set forth the basis for the denial.

If the agency refuses to disclose the report, you could try pushing back with appropriate legal arguments as to why the report is subject to disclosure (e.g., perhaps it is not fairly characterized as a record of an investigation conducted by a law enforcement agency) or why the agency should exercise its discretion to release the report even if the PRA arguably does not require its disclosure.

Ultimately, however, the only way to force an agency to disclose a record under the PRA is to file a lawsuit.

You can find additional information about making requests under the PRA on the First Amendment Coalition web site at 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.

Q: We are attempting to obtain arrest logs and mugshots or the booking photos associated with each arrest from local police jurisdictions for the purpose of crime statistical data gathering. We are asking for data on a consistent basis, i.e. daily email, weekly spreadsheets etc. Some jurisdictions have supplied the arrest logs but no photos. Other jurisdictions act like this is the first time they have ever had a request for such information. Can you please advise?

A: With respect to arrest logs, California’s Public Records Act exempts certain law enforcement records (namely, “records of complaints to, or investigations conducted by, or records of intelligence information or security procedures of … any state or local police agency, or any investigatory or security files compiled by any other state or local police agency, or any investigatory or security files compiled by any other state or local agency for correctional, law enforcement, or licensing purposes”), but it expressly provides that “state and local law enforcement agencies shall make public” the following information (unless doing so would “endanger the safety of a person involved in an investigation or would endanger the successful completion of the investigation or a related investigation”):

The full name and occupation of every individual arrested by the agency, the individual’s physical description including date of birth, color of eyes and hair, sex, height and weight, the time and date of arrest, the time and date of booking, the location of the arrest, the factual circumstances surrounding the arrest, the amount of bail set, the time and manner of release or the location where the individual is currently being held, and all charges the individual is being held upon, including any outstanding warrants from other jurisdictions and parole or probation holds Gov’t Code § 6254(f).

As to mug shots, unfortunately, there is no California case that discusses whether the Public Records Act requires release of booking photographs, or whether such records are exempt.

Agencies often cite an Attorney General opinion from 2003, in which the AG opined that law enforcement has the discretion to decide whether to disclose booking photos primarily on the theory that “mug shots fall within the ‘records of investigations’ exemption” in § 6254(f), to justify withholding booking photos. 86 Ops. Cal. Atty. Gen. 132, 135 (2003).

However, the California Supreme Court has explained that this exemption applies only to a record that “on its face purport[s] to be an investigatory record,” Williams v. Superior Court, 5 Cal. 4th 337, 356 (1993).

Thus, it could be argued that that narrow of category of records does not include booking photographs. Pemberton v. Bethlehem Steel Corp., 502 A.2d 1101, 1119 (Md. Ct. Spec. App. 1986) (ordering disclosure because “[i]t is not at all clear that a ‘mug shot’ necessarily constitutes or is part of a ‘record of investigation’ so as to be permissibly excludable” from public disclosure under similarly worded open records law).

Arguably, mug shots are not on their face records of an investigation, and may not be withheld under the investigatory exemption except where they are legitimately used for investigatory purposes. Williams, 5 Cal. 4th at 356.

An agency may not shield a record from public disclosure “simply by placing it in a file labeled ‘investigatory.’ … ‘To say that the exemption created by subdivision (f) is applicable to any document which a public agency might, under any circumstances, use in the course of [an investigation] would be to create a virtual carte blanch for the denial of public access to public records. The exception would thus swallow the rule.’” Id. (quoting Uribe v. Howie, 19 Cal. App. 3d 194, 212-13 (1971)).

Also, since — as noted above — the PRA requires that law enforcement agencies a “physical description” of arrestees, including eye color, hair color, gender, height and weight, Gov’t Code § 6254(f)(1), one could argue that a booking photo falls into this category of records that must be released, since it does no more than visually show information that a law enforcement agency is required to release anyway. In light of the AG opinion on mug shots, however, it may be difficult to convince an agency that resists disclosure to produce them.

It is not clear that an agency would be required to provide information on an ongoing basis in response to single request (i.e., please send us each week records reflecting X, Y, and Z), though — as a practical matter — you may be able to establish a routine with a particular agency and get the records regularly without having to make requests each week.

If an agency refuses to provide records under the PRA — or fails to respond at all within the statutorily defined timeframe — the ultimate recourse is filing a lawsuit under Gov’t Code § 6259. Such lawsuits are typically initiated by a verified petition (i.e., a request filed under oath) that asks the court to issue a writ of mandate, which is a type of order directing the public agency to take a specified action. Attorney’s fees are available to a plaintiff who prevails in litigation filed pursuant to the Act, Gov’t Code § 6259(d).

You can find additional information about the PRA at the First Amendment Coalition web site at 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.

Q: Can an internal investigation conducted by a city be obtained by an individual. The essence of the investigation is the purchase of equipment from a company and paying twice the amount quoted by another company for the same exact equipment. The difference in price was $25,000. The copy of the outcome of the investigation has been requested but denied twice because the city says it is an internal investigation and is not available to anyone outside of City government. This investigation would certainly be of interest to the public to see how the investigation was handled and what the outcome was. Please advise if this type of information is within the California Public Records Act.

A: The Public Records Act requires that for any request made in writing, the agency must indicate in writing the specific exemption it is claiming that justifies non-disclosure. Govt. Code 6253(b), 6255(a), (b).

If the agency to which you made your request has not done so, it may be worth asking them to provide that very specific information. It is always better to analyze the specific exemption an agency is claiming to than to guess as to which exemption it thinks applies.

That being said, there are three exemptions that are commonly asserted in such situations.

The first, found in section 6254(a), exempts from disclosure “preliminary drafts, notes or interagency or intra-agency memoranda that are not retained in the ordinary course of business, provided that the public interest in withholding those records clearly outweighs the public interest in disclosure.”

As you can see, that exemption will only apply if two conditions are met: the record is one that will not be retained by the agency, and public interest clearly favors secrecy.

The second likely exemption, found in section 6254(f), exempts from disclosure:

“records of complaints to, or investigations conducted by . . ,. the office of the Attorney General and the Department of Justice, and any state or local police agency, or ay investigatory or security files compiled by any other state or local agency for correctional, law enforcement, or licensing purposes . . . . “

If the investigatory report you seek fits within that wide definition, it will be exempt.

Lastly, section 6255, is a catch-all exemption whereby an agency is permitted to withhold any record for which it can show that public’s interest in secrecy clearly outweighs the public interest in disclosure. Whether this exemption applied will depend on the specific facts involved.

Again, it is most advisable in these situations to ask the agency to specify the exemption or exemptions upon which it relies.

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to FAC 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. I apologize for the delay in responding to your inquiry.

Q: I submitted a request for  arrest and incident reports from a police department for a case involving my client but I got a call from someone in the Records Department who said that I needed to submit signed authorization from my client. Is that the case in your practice?

A: If a person were submitting a request for reports under the Public Records Act, then there would be no requirement to submit any kind of written request. But access to arrest and incident requests is fairly limited under the PRA, so your client may have greater rights to access those records due to his or her involvement in the case than a member of the public would have under the PRA.

Under the PRA, many law enforcement records are exempt from disclosure (see below for exact language of exemption language). Specifically, the following are exempt:

“[r]ecords of complaints to, or investigations conducted by … any state or local police agency, or any investigatory or security files compiled by any other state or local police agency, or any investigatory or security files compiled by any other state or local agency for correctional, law enforcement, or licensing purposes.” Gov’t Code Section 6254(f).

While some information must be disclosed under the PRA, it may not be everything your client is looking for:

Notwithstanding any other provision of this subdivision, state and local law enforcement agencies shall make public the following information, except to the extent that disclosure of a particular item of information would endanger the safety of a person involved in an investigation or would endanger the successful completion of the investigation or a related investigation:

(1) The full name and occupation of every individual arrested by the agency, the individual’s physical description including date of birth, color of eyes and hair, sex, height and weight, the time and date of arrest, the time and date of booking, the location of the arrest, the factual circumstances surrounding the arrest, the amount of bail set, the time and manner of release or the location where the individual is currently being held, and all charges the individual is being held upon, including any outstanding warrants from other jurisdictions and parole or probation holds.

(2) Subject to the restrictions imposed by Section 841.5 of the Penal Code, the time, substance, and location of all complaints or requests for assistance received by the agency and the time and nature of the response thereto, including, to the extent the information regarding crimes alleged or committed or any other incident investigated is recorded, the time, date, and location of occurrence, the time and date of the report, the name and age of the victim, the factual circumstances surrounding the crime or incident, and a general description of any injuries, property, or weapons involved. The name of a victim of any crime defined by Section 220, 236.1, 261, 261.5, 262, 264, 264.1, 265, 266, 266a, 266b, 266c, 266e, 266f, 266j, 267, 269, 273a, 273d, 273.5, 285, 286, 288, 288a, 288.2, 288.3 (as added by Chapter 337 of the Statutes of 2006), 288.3 (as added by Section 6 of Proposition 83 of the November 7, 2006, statewide general election), 288.5, 288.7, 289, 422.6, 422.7, 422.75, 646.9, or 647.6 of the Penal Code may be withheld at the victim’s request, or at the request of the victim’s parent or guardian if the victim is a minor.

When a person is the victim of more than one crime, information disclosing that the person is a victim of a crime defined in any of the sections of the Penal Code set forth in this subdivision may be deleted at the request of the victim, or the victim’s parent or guardian if the victim is a minor, in making the report of the crime, or of any crime or incident accompanying the crime, available to the public in compliance with the requirements of this paragraph. Id.

Assuming that any involvement in the incident by your client entitles your client to greater access than what is provided by the PRA, the police may be on solid ground in asking for written authorization from your client.

One option would be to ask the records department for the legal basis for the request for authorization. It may be spelled out in a statute.

Or it may be that a statute spells out that someone in your client’s shoes is entitled to greater access and that the request for written authorization is a reasonable way to establish that your client is among the class of people to whom greater access is owed.

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.

Q: My organization is being charged a fee to view parole hearing transcripts–not copy; simply view. We are also told we will be charged to view the complete parole board’s response to a public hearing. We would like an opinion on the legality of this policy

A: It sounds like you know that under the Public Records Act, “[p]ublic 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. Gov’t Code § 6253(a).

Public agencies may charge a fee “covering direct costs of duplication” (or a statutory fee). Gov’t Code § 6253(b). As for charging the public for the right to merely inspect records, the agency may be on shaky ground.

By its own terms, the PRA does not seem to authorize the imposition of fees for inspection of records (versus copying) and I am not aware of any authority holding that an agency may impose charges for a member of the public to inspect a document (without obtaining a copy).

You might want to write to the agency letting them know that, while you would be willing to pay for copies of records should you need them, the Act does not seem to provide for payment to merely inspect records, and in fact requires that public records be open to inspection during the agency’s office hours, and that every person have the right to inspection those records. Gov’t Code § 6253(b).

If the agency refuses to permit you to inspect the records free of charge, your ultimate recourse would be to file a lawsuit under Gov’t Code § 6259.

Such lawsuits are typically initiated by a verified petition (i.e., a request filed under oath) that asks the court to issue a writ of mandate, which is a type of order directing the public agency to take a specified action. Attorney’s fees are available to a plaintiff who prevails in litigation filed pursuant to the Act, Gov’t Code § 6259(d).

In any follow-up correspondence to the agency, you may want to subtly, but firmly, mention that attorneys’ fees are available should you be required to take court action.

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to FAC 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.

Q: A recent CPRA request  to the  California Department of  Justice resulted in a partial denial of responsive records; they claimed the deliberative process exemption for the records not provided (citing Times Mirror). If a process is not related to something truly requiring secrecy, are there any options to pursue this information and what would be the appropriate response to their letter?

A: For background purposes, Government Code section 6255(a) of the Public Records Act, known as the “catch-all” exemption, is typically invoked by governmental agencies when no other exemption applies. This exemption states that in order to justify withholding a record, the agency must show that “on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.” Gov’t Code section 6255(a).

The burden of proof is on the agency to demonstrate “a clear overbalance on the side of confidentiality.” Michaelis, Montanari & Johnson v. Superior Court, 38 Cal. 4th 1065, 1071 (2006). This exemption has been expanded by the courts to encompass a broad, categorical exemption known as the “deliberative process privilege.” See Times Mirror Co. v. Superior Court, 53 Cal. 3d 1325, 1342 (1991) (request for calendars of governor exempt from disclosure).

In Times Mirror, the Supreme Court stated that the “key question in every case is whether disclosure of the materials would expose an agency’s decision-making process in such a way as to discourage candid discussion with the agency and thereby undermine the agency’s ability to perform its functions.” Id.

As stated in California First Amendment Coalition v. Superior Court, 67 Cal. App. 4th 159, 172-73, “[n]ot every disclosure which hampers the deliberative process implicates the deliberative process privilege. Only if the public interest in nondisclosure clearly outweighs the public interest in disclosure does the deliberative process privilege spring into existence. The burden is on the Governor to establish the conditions for creation of the privilege.”

Given that the privilege is intended to promote candid discussion in connection with its decision-making process, I am not sure that the need for secrecy is necessarily a factor in deciding whether the privilege applies. Rather, if the agency contends that a record is not required to be disclosed under the Act, it must cite a specific exemption, and explain how that exemption applies to the requested record. Given how broad and undefined the deliberative process privilege is, you should press the agency to fully articulate the public interest served by nondisclosure. You could then use this information to enlighten the agency as to why the balancing test favors public disclosure. It will also put you in a position to dispute the agency’s claims if you bring an enforcement action to compel release of the records.

Finally, I should also mention Proposition 59, known as the Sunshine Amendment, which states: “The people have the right of access to information concerning the conduct of the people’s business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.” Cal. Constitution, art. I, section 3(b)(1).

It has been argued, and a state appellate court has rejected, that Prop. 59 was intended to eliminate the deliberative process privilege. See Sutter’s Place Inc. v. Superior Court, 161 Cal. App. 4th 1370, 1382-83 (2008) (no evidence of intent on the part of voters to supersede, override or alter the operation of the deliberative process privilege).

Nonetheless, courts acknowledge that Prop. 59 constitutionalizes the Public Records Act. Id. at 1382; see also Savaglio v. Wal-Mart Stores, Inc., 149 Cal. App. 4th 588, 597 (2007). As such, you may want to mention Prop. 59 as additional authority that compels the release of the requested records in any future correspondence that you have with the DOJ.

Q: I have asked the city for a particular statistical report about their red light camera system. They have refused to provide the records, and have ignored my offer to pay (per GC 6253.9(b)).

The requested report is one which a city can obtain by going to the website of their red light camera vendor, selecting the report from an on-screen menu of report types, then selecting the intersection to be covered by the report, and entering the beginning and ending dates of the period of interest (the ”parameters”). The database program prepares the report immediately. I have requested this same report, and received it, from about 50 other California cities served by the same vendor. Most of them were able to provide the report without much prompting, and most have not required me to pay for the staff time involved in entering the parameters.

The problem city said that since they do not have the reports on hand, they do not have to provide them to me. I then offered to pay, and was met with a ”no” – and no further explanation.

Nearly all of my interaction with the city has been in writing, so there is a good record.

A: The question you raise is a difficult one, and my colleagues and I are aware of only spotty authority that addresses the question of public records which the government has effectively outsourced. However, neither case really addresses the particular situation you outline below.

In San Gabriel Tribune v. Superior Court, 143 Cal. App. 3d 762 (1983), a reporter sought copies of financial reports submitted by a waste disposal company to a city in support of requested rate hikes. The city refused to disclose the records on the ground that they were the confidential records of a private business. The court disagreed, holding that any interest the city and waste disposal company had in keeping the records secret was outweighed by the public’s interest in “be[ing] informed of the provision of governmental services contracted on behalf of the residents.” Id. at 780.

In San Gabriel, though, there wasn’t a question of whether the city actually had the records at issue, which is how it differs from your situation.

More recently, the Attorney General considered whether the Public Records Act applied to a private, non-profit corporation that was formed to provide programming for a cable television channel set aside for educational use. 85 Ops. Cal. Atty. Gen. 55 (March 14, 2002). The AG noted that a nonprofit that satisfies the requirements of Govt. Code section 54592(c) (which is part of California’s open meetings law, the Brown Act), is also subject to the PRA. Section 54592(c) provides that a legislative body includes:

(1) A board, commission, committee, or other multimember body that governs a private corporation, limited liability company, or other entity that either:

(A) Is created by the elected legislative body in order to exercise authority that may lawfully be delegated by the elected governing body to a private corporation, limited liability company, or other entity.

(B) Receives funds from a local agency and the membership of whose governing body includes a member of the legislative body of the local agency appointed to that governing body as a full voting member by the legislative body of the local agency.

(2) Notwithstanding subparagraph (B) of paragraph (1), no board, commission, committee, or other multimember body that governs a private corporation, limited liability company, or other entity that receives funds from a local agency and, as of February 9, 1996, has a member of the legislative body of the local agency as a full voting member of the governing body of that private corporation, limited liability company, or other entity shall be relieved from the public meeting requirements of this chapter by virtue of a change in status of the full voting member to a nonvoting member.

Although the AG decided that the cable company in that situation was subject to the PRA, it is not clear that the entity you describe below would meet the criteria set forth above.

The best starting point for you may be the definition of public records: “‘Public records’ includes 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.” Govt. Code § 6252.

The city seems to be implicitly arguing that because it does not actually possess the particular record you describe, it is not required to disclose that record under the PRA. While I am not aware of any authority directly on point, the city’s interpretation – if this is, in fact, their defense– would seem to be quite narrow with respect to “owned” and/or “used.” One angle you might want to try is to inspect the city’s contract with the vendor to see if it gives the city ownership of information and records generated by the vendor pursuant to the services it performs for the city. If the city essentially “owns” what is in the database, it should be hard-pressed to establish that it does not own any particular report generated from the database.

At this point, you may want to write to your contact with the city, or perhaps the city attorney, asserting that the information you requested falls squarely under the guidelines created by California’s Public Records Act and that you have even offered to pay for the copies you have requested. See Cal. Govt. Code §§ 6252(e) and 6253.9(b). Furthermore, you should point out in this letter that 50 other cities have already released this information to you and that the city has no good reason to deny access to that information. Ask them to explain the legal grounds supporting their decision not to disclose the information from the red light camera. Finally, you may wish to point out that if the city continues to withhold this information and you decide to file a writ of petition in the Superior Court to compel disclosure, attorneys’ fees are available to a plaintiff who prevails in litigation filed pursuant to the Act. See Cal. Gov’t Code § 6259(d).

You can find additional information on the Public Records Act on the FAC’s website at http://www.firstamendmentcoalition.org/category/resources/access-to-records/.

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to FAC 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.

Q: How do I request in writing all records and e-mail communication on a property that was removed from a Tax Lien Sale from the time the first code enforcement violations to the present time. I have been refused an informal request without a good explanation. I would like to see the law that would remove the property from the Tax Lien Auction List. This has also been refused.

A: In making your request for records, Government Code § 6253(b) indicates that you must “reasonably describe an identifiable record or records.”

The California Public Records Act does not require that the request be made in writing; however, I agree with your intention to do so. For one, a written request creates a record of when you requested the records (in case you decide to litigate in the future). Secondly, a written request then requires the agency to provide a written response. Gov’t Code § 6255(b). There is also no requirement that you provide your name, address, or reason for the request. Gov’t Code § 6257.5. There are sample request letters on the First Amendment Coalition web site at http://www.firstamendmentcoalition.org/category/resources/access-to-records/

As you may already know, the Public Records Act provides that public records including “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,” are presumed to be open to the public. Gov’t Code § 6252(e).

Any qualifying records must be disclosed unless a specific provision of the Act or other law exempts them from disclosure.

I am not aware of any specific provisions that exempt Tax Lien Auction lists.

However, there are so many highly-specific exemptions that just because I am unaware of one does not mean it has not been created.

If they reject your formal written request, their response will need to identify the exemption or other justification for their denial. Once armed with that information, it will be possible to better assess the legitimacy of their claim.

Finally, the Public Records Act doesn’t require agencies to answer questions. All it requires is that they produce existing records. If you want to look up particular laws or seek assistance conducting broader legal research, you should contact a research librarian.

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to FAC 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.

Q: I requested e-mail records from a  public agency months ago. I am still waiting for many of these records and have been informed that the person who has access to these records will be on vacation for at least another month. Does the government have the right to delay responding to my request for months due to vacations? If not, do you have any cases I can mention to the agency that cover this issue? I already informed them I believed they only had 10 days to reply unless they were claiming an exemption (which they have not) but that hasn’t persuaded them.

A: It seems that you are aware that, with respect to copies of records, agencies must, within 10 days from receipt of a request for a copy of a record, determine whether the request “seeks copies of disclosable public records in the possession of the agency and shall promptly notify the person making the request of the determination and the reasons therefor.” Gov’t Code § 6253(c).

In “unusual circumstances,” an agency may extend its response time by an additional 14 days. Additionally, access to copies of records is to be provided “promptly,” Gov’t Code § 6253(b) (emph. added), and:

“[n]othing in this chapter shall be construed to permit an agency to delay or obstruct the inspection or copying of public records. The notification of denial of any request for records required by Section 6255 shall set forth the names and titles or positions of each person responsible for the denial.” Gov’t Code § 6253(d).

Thus, the 10-day deadline is not a legal deadline for producing the actual records; however, under § 6253(b) and (d), once a determination has been made as to whether the records are disclosable, actual release of the records should promptly follow.

I searched for but did not find any cases where “vacation” or other personnel considerations justified a delay in responding to a request for copies of public records. Even the “unusual circumstances” that permit an agency to extend notification by an additional 14 days do not include any circumstances that would seem to encompass the fact that the person who is the most able to locate the records is absent. “Unusual circumstances,” under the code, may include:

(1) 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.

(2) The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records that are demanded in a single request.

(3) The need for consultation, which shall be conducted with all practicable speed, with another agency having substantial interest in the determination of the request or among two or more components of the agency having substantial subject matter interest therein.

(4) The need to compile data, to write programming language or a computer program, or to construct a computer report to extract data.

Gov’t Code § 6253(c).

It would seem that an agency should not put an entire category of records into the hands of a single person. Rather, there should be others within the agency who are familiar with the records, and should be able to retrieve them as needed. What happens when this individual retires?

You may want to write to the agency and remind them of their statutory duty to respond to your request within 10 days, and note that there is no exception to this deadline based on vacation schedules.

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to FAC 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.

Q: I recently requested information pertaining to a 2004 arrest of a man by the Sheriff.  I was told by their Discovery Officer that my request would be denied because the records are so old and I’m no longer entitled to the information under the Public Records Act. She cited 6254 f(1) and (2) which I understand entitles me to certain information (bail, arrest time, location etc.) She also mentioned a case entitled Kuzar which denies information past a certain time period has elapsed. Is this accurate?

A: The availability of police records is governed by Govt. Code section 6254(f). That section defines both the records that law enforcement agencies may withhold from the public and what information it must extract from its records and provide to the public. Among the records exempt from disclosure are “records of . . . investigations conducted by. . . or any investigatory or security files compiled by any other state or local police agency . . . .” There is no temporal limitation on this exemption: it applies equally to ongoing and closed investigations. Williams v. Superior Court, 5 Cal. 4th 337 (1993).

The information required to be extracted from such records upon request basically falls into four categories:

(1) incident and witness information that need be disclosed only to the victim and his or her insurance agency;

(2) arrest information;

(3) calls-for-assistance and dispatch information; and

(4) contact information for arrestees and victims as long as such information will not be used for commercial purposes. ( Please read the section to see the specifics of the information that must be disclosed.) There are exceptions for information the disclosure of which would interfere with an ongoing investigation or endanger a witness.

However, as the sheriff’s office represented, these disclosure requirements apply only to contemporaneous records. County of Los Angeles v. Superior Court, 18 Cal. App. 4th 588 (1993). It is unclear for how long past the date of arrest a record is considered “contemporaneous.” But it is probably a matter of days or weeks, rather than years.

That being said the exemption is discretionary. The sheriff can release the information, subject to some limits contained in the California Penal Code, if it so chooses (or if you can convince them to). But they are not required to do so.

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to FAC 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.

Q: The local police department is refusing to release a report on a shooting. Many months have passed since the incident. They give no explanation for their actions. What would be the best way to proceed to get them to release the report?

A: As you may know, under California’s Public Records Act, public records — which include “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,” Gov’t Code § 6252(e) — are presumed to be open to the public and must be disclosed unless a specific provision of the Act or other law exempts them from disclosure.

Records that are exempt from disclosure under the PRA include “[r]ecords of complaints to, or investigations conducted by, or records of intelligence information or security procedures of, the office of the Attorney General and the Department of Justice, the California Emergency Management Agency, and any state or local police agency, or any investigatory or security files compiled by any other state or local police agency, or any investigatory or security files compiled by any other state or local agency for correctional, law enforcement, or licensing purposes.” Govt. Code § 6254(f) (see below in green for entire text of provision).

This exemption is fairly broad and generally makes it difficult to obtain police investigation records. While it is not the case that any report that a police department might create would automatically be exempt, any records related to complaints to or investigations conducted by a police department probably would be.

Note, however, that “state and local law enforcement agencies shall make public the following information, except to the extent that disclosure of a particular item of information would endanger the safety of a person involved in an investigation or would endanger the successful completion of the investigation or a related investigation:

The full name and occupation of every individual arrested by the agency, the individual’s physical description including date of birth, color of eyes and hair, sex, height and weight, the time and date of arrest, the time and date of booking, the location of the arrest, the factual circumstances surrounding the arrest, the amount of bail set, the time and manner of release or the location where the individual is currently being held, and all charges the individual is being held upon, including any outstanding warrants from other jurisdictions and parole or probation holds.” Govt. Code § 6254(f)(1).

To the extent this kind of information is among what you are looking for, you may be able to obtain at least the information, if not the report itself.

With respect to procedure for trying to get the report, the first step would be to make a request under the PRA.

Requests need not be in writing, but a written request should result in a written response.

If a denial, the response should set forth the basis for the denial. If the agency refuses to disclose the report, you could try pushing back with appropriate legal arguments as to why the report is subject to disclosure (e.g., perhaps it is not fairly characterized as a record of an investigation conducted by a law enforcement agency) or why the agency should exercise its discretion to release the report even if the PRA arguably does not require its disclosure.

Ultimately, however, the only way to force an agency to disclose a record under the PRA is to file a lawsuit.

You can find additional information about making requests under the PRA on the First Amendment Coalition web site at 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.

Q: I have been seeking access to seismic studies performed as part of the county’s subway extension process but my request has been denied. I would like to make the request under the FOIA. How should I do this? Does the County have its own FOIA?

A: Since it sounds like the agency you are seeking records from is a local agency, as opposed to a federal agency, you would probably want to make your request pursuant to California’s Public Records Act.

Under the PRA, public records — which include “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,” Gov’t Code § 6252(e) — are presumed to be open to the public, and therefore must be disclosed unless a specific provision of the Act or other law exempts them from disclosure.

It seems that local transportation agencies such as the MTA would qualify as a “local agency” under the PRA. Gov’t Code § 6252(a). See, e.g., L.A. Times v. Alameda Corridor Transp. Auth., 88 Cal. App. 4th 1381, 1386 (2001) (newspaper successfully sued transportation agency for disclosure of public records).

In order to justify withholding the documents you request, the agency must cite a specific exemption, and explain why it applies to the records you seek. Gov’t Code § 6253(c).

In addition to some of the specific exemptions that agencies invoke in justifying the withholding of records, some agencies cite the Act’s “catch-all” exemption, contained in Government Code § 6255(a).

This exemption states that in order to justify withholding a record, the agency must show that “on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.” Gov’t Code § 6255(a).

The burden of proof is on the agency to demonstrate “a clear overbalance on the side of confidentiality.” Michaelis, Montanari & Johnson v. Superior Court, 38 Cal. 4th 1065, 1071 (2006).

You may want to resubmit your request to the MTA in writing, as described below. If the response is still negative, you might want to press the agency on why it is refusing to disclose the requested records.

Since the Act favors disclosure to the fullest extent, if any of the requested records can be segregated or redacted to still give you the information you seek, then the MTA should release with such segregation or redaction. Gov’t Code § 6253(a).

A request may be made in writing to the agency (a sample Public Records Act request letter may be found on FAC’s website: http://www.firstamendmentcoalition.org/cpra/frequently-asked-questions-about-the-cpra/sample-cpra-request-letter/).

The request must “reasonably describe an identifiable record or records.” Gov’t Code section 6253(b). You are not required to provide your name or address when making a request (although it might help to do so so the agency may contact you in case they need clarification with respect to the request), and you are not required to state the purpose of your request.

Records must be made available for inspection during the regular office hours of the agency. Gov’t Code section 6253(a).

Agencies may adopt certain procedures that must be followed, but such procedures cannot limit the hours during which the records are available. See Bruce v. Gregory, 65 Cal. 2d 666 (1967) (the custodian of records may “formulate reasonable regulations necessary to protect the safety of the records … [or] to prevent inspection from interfering with the orderly function of his office and its employees”).

Additionally, members of the public are entitled to obtain a copy of public records. Gov’t Code section 6253(b). The agency must respond to a request for a copy of a public record within 10 days, and the time for responding may be extended for an additional 14 days in “unusual circumstances.” Gov’t Code section 6253(b)-(c).

More information about the Public Records Act may be found at the First Amendment Coalition’s website, located here: http://www.firstamendmentcoalition.org/category/resources/access-to-records/.

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to FAC 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.

The Tri-City Healthcare District is asking a court to stop the San Diego Union-Tribune from publishing what they say are “privileged and confidential communications.” Tri-City accidentally provided the records in response to a public records request.

The contents of the communications are not known, but among other things, Tri-City is upset that the Union Tribune used the communications to make another public records request. -db

From the Courthouse News Service, September 21, 2011, by Matt Reynolds.

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