Q: On at least four occasions , I have gone to the Park and Recreation Department to review public records (on site, in the building) during normal business hours and I have been sent away. If at all possible, I would like to file a motion this week to force the department to allow me access to these and other records.

A: I am sorry to hear that you are having such a hard time obtaining public records.  As you 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 section 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 Act include, but are not limited to, preliminary drafts, notes, etc., that are not retained by the public agency in the ordinary course of business; records pertaining to pending litigation; personnel, medical or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy; and records revealing a state agency’s deliberative processes with respect to certain state employer-employee relationship issues.  See, generally, Gov’t Code section 6254.

There also is a “catchall” exemption permitting an agency to withhold “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 Section 6255(a).

Under the Act, 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”).

If you would like a copy of a particular record, you should make your request in writing to the agency (a sample Public Records Act request letter may be found on this website: 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.  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 section 6253(c).

In “unusual circumstances,” an agency may extend its response time by an additional 14 days.

Under this statutory framework, you essentially have two options: (1) to request to public records in person, without having a to make a written request to the agency, as you have previously tried doing, or (2) to request copies of a particular record as “reasonably describe[d]” by you, preferably in the form of a letter to the agency (although a written request is not necessarily required under the statute).  Obviously, the first option should garner quicker access to the records that you seek to inspect.

The Public Records Act, which is a state law, is enhanced by the San Francisco Sunshine Ordinance, which was enacted to ensure “easier access to public records.” See Sunshine Ordinance FAQs.

The full text of the ordinance as it relates to public records is available here:

The ordinance requires that “[e]very person having custody of any public record or public information, as defined herein, (hereinafter referred to as a custodian of a public record) shall, at normal times and during normal and reasonable hours of operation without unreasonable delay without requiring an appointment, permit the public record, or any segregable portion of a record, to be inspected and examined by any person and shall furnish one copy thereof upon payment of a reasonable copying charge, not to exceed the lesser of the actual cost or ten cents per page.”  SF Sunshine Ord., Sec. 67.21(a).  Furthermore, the custodian shall, “as soon as possible and within ten days following receipt of a request for inspection or copy of a public record, comply with such request. Such request may be delivered to the office of the custodian by the requester orally or in writing by fax, postal delivery, or e-mail.”  SF Sunshine Ord. Sec. 67-21(b).

The Ordinance provides an administrative remedy if the requester is denied access to records, although this remedy does not limit remedies available under the state law.  Under the Ordinance, if the custodian believes the record or information requested is not a public record or is exempt, the custodian shall justify withholding any record by demonstrating, in writing as soon as possible and within ten days following receipt of a request, that the record in question is exempt under express provisions of this ordinance.”  SF Sunshine Ord. Sec. 67.21(b).  If the custodian refuses or fails to comply with a request as described in Sec. 67.21(b), the requester may petition either the supervisor of records or the Sunshine Task Force for a determination of whether the record is public.  SF. Ord. Sec. 67.21(d)-(e).

Judicial enforcement of the Public Records Act would involve 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 specified actions.

Before filing a lawsuit, you may want to first take advantage of the administrative remedies provided for in the Sunshine Ordinance — i.e., making a written request to the Recreation and Parks Department for the records that you seek to inspect and “reasonably describing” those records so that the custodian of records may locate them.

If you are denied access to the records, then contacting the supervisor of records regarding the request and subsequent denial (as well as briefly describing your previous attempts access the records in person) would be the next step.  (You may also want to copy the Sunshine Task Force and/or the city attorney on any correspondence to the supervisor of records, as this may result in a faster and more favorable response to your request.)  If this does not work, then filing a petition with the court would be a good option.

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 .

Allen Grossman, an open government advocate, has filed suit in San Francisco, charging that the Ethics Commission has suppressed public records regarding their failure to enforce violations of state and local open government laws. -DB