Accessing Public Records Through Informal Discovery
Kristen M. Bush, Esq.
Schwartz Semerdjian Ballard & Cauley, LLP
A potential client calls asking to set up an interview regarding an assault she experienced over the weekend. She explains that she was attacked on a city street in a semi-residential neighborhood about three blocks from her apartment and had to spend two nights in the hospital as a result of her injuries. When the police visited her at the hospital to take her statement, one of the officers made an off-the-cuff remark that this is the third attack on that street in the past three weeks and questioned when the City was going to get the street lights repaired.
Before filing suit, California’s open government laws permit you to access potentially relevant information through public records requests. Under the California Government Code, agencies and boards at the local, county and state level must conduct their business in public. See Cal. Gov’t Code §§ 54950-9963. In addition, the California Public Records Act (CPRA) provides that public records must be available to all Californians, stating “access to information concerning the conduct of people’s business is a fundamental and necessary right of every person in this state. Cal. Gov’t Code §§ 6250-6270. These provisions are the foundation for California’s open government policy. The CPRA’s purpose is to give the public access to information that allows them to see how their government is functioning. This could include information about crime on a particular street, as well as reports to a city regarding streetlights that are unlit, amongst other inquiries. This article discusses the process for accessing these records through informal discovery, the possible responses from the agency, as well as grounds for exemption, challenging a decision to withhold information, and recent case law that could affect the scope of information that is accessible. Understanding the public records request process can be an essential tool in acquiring relevant information for cases where government entities may hold evidence.
Requests for Information Under the CPRA
The CPRA applies to local and state agencies. Cal. Gov’t Code § 6252(f). It grants all “persons” the right to inspect or receive records. “Persons” include corporations, businesses, and LLCs. Cal. Gov’t Code § 6252(c). The requester may be planning a lawsuit or even have one pending against the agency receiving the request. The requester’s intent is not a justification for withholding records. Once a request is made, the agency has 10 calendar days from receipt of the request to respond to the requester. The response time may be extended by an additional 14 days if the records are large or remotely located. Cal. Gov’t Code § 6253(c). While the agency is not required to produce the records in this time frame, it must at least provide a response to the requester. Reasonable steps should be taken to make clear, thoughtful requests to the appropriate agencies.
A reasonable effort must be taken by the agency to locate the requested records. However, the agency is not required to perform a needle in a haystack search through voluminous material and the request may be objectionable as unduly burdensome. California First Amendment Coalition v. Sup. Ct. (1998) 67 Cal.App.4th 159, 166. Records requests, however, inevitably impose some burden on government agencies. An agency is obliged to comply so long as the record can be located with reasonable effort. State Bd. of Equalization v. Sup. Ct. (1992) 10 Cal.App.4th 1177, 1186. The costs incurred to search, review, or respond to a records request are not recoverable by the agency. However, the agency may charge, or waive, duplication fees before providing copies. Cal. Gov’t Code § 6253(d).
The agency must respond to the request in writing. The agency may disclose records, disclose redacted records, or decide to withhold records entirely. Any agency may withhold a record if numerous redactions render the document unintelligible. The written response must state the statutory basis for withholding the record. The statute provides for several grounds for withholding records. The most common exemptions are for personnel records, privileged records, pending litigation, the public-interest exemption, the deliberative process, and drafts.
Public agencies are not required to disclose “personal, medical, or similar files the disclosure of which constitute an unwarranted invasion of personal privacy.” Cal. Gov’t Code § 6254(c). While this is based on California’s right to privacy provisions, public employees do not have a reasonable expectation of privacy in their names and salary information, so this may be an exception to the codified exemption protecting personnel records. See Int’l Fed’n of Prof’l and Technical Eng’rs, Local 21, AFL-CIO v. Sup. Ct. (2007) 42 Cal.4th 319, 329.
Records That Are Privileged
A public agency is not required to disclose “records, disclosure of which is exempted or prohibited pursuant to Federal or State law, including, but not limited to provisions of the Evidence Code related to privilege.” Cal. Gov’t Code § 6254(k). Accordingly, attorney-client privilege communications and attorney work product are exempted.
Public agencies are not required to disclose records “pertaining to pending litigation to which the public agency is a party, or claims made pursuant to [the CPRA], until the pending litigation or claim has been finally adjudicated or otherwise settled. .” Cal. Gov’t Code § 6254(b). This exemption applies to documents prepared by any person, or at the agency’s direction for litigation. Thus, an incident report prepared primarily in anctipation of litigation would be exempt under this exemption. Fairley v. Sup. Ct. (1998) 66 Cal.App.4th 1414, 1420-1421.
Public records may be withheld if the agency can demonstrate that the public interest in withholding it clearly outweighs the public benefit in disclosure. Cal. Gov’t Code § 6255. This is an open-ended exemption that permits courts to apply fact-specific balancing tests and withhold information for reasons such as unduly burdensome requests or requests that violate privacy rights.
The public-interest exemption incorporates a judicially recognized deliberative process. Derived from the federal Freedom of Information Act (5 U.S.C. § 552), the privilege protects the decision-making process of government officials. The privilege is based on the concept that an uninhibited exchange of ideas and opinions is necessary to good government, and that such frank discussion may be inhibited if subjected to public scrutiny. See Times Mirror Co. v. Sup. Ct. (1991) 53 Cal.3d 1325, 1342-1343.
The CPRA expressly protects “preliminary drafts, notes, or inter-agency memoranda that are not retained by the public agency in the ordinary course of business, if the public interest in withholding those records clearly outweighs the public interest in disclosure. Cal. Gov’t Code § 6254(a). This exemption usually applies to writings and notes made before a decision is made. The agency must satisfy several elements to invoke this exemption, including that the item in question is a preliminary writing; that it is not retained in the ordinary course of business; and that the public interest in withholding the item clearly outweighs the public interest in disclosure. Citizens for a Better Gov’t v. Dep’t of Food and Agric. (1985) 171 Cal.App.3d 704, 711-712.
In the event of a dispute arising from a public records request, the CPRA permits any person to file a request for injunctive relief or a writ of mandate to obtain or inspect records. Cal. Gov’t Code § 6253. If the court finds the withholding is justified, the records will be returned to the public agency with a supporting order. Cal. Gov’t Code § 6259(b). If the court finds the agency’s withholding is unjustified, it will order disclosure. Further, if the requester is the prevailing party, it may recover reasonable attorneys’ fees. Los Angeles Times v. Alameda Corridor Transp. Auth. (2001) 88 Cal.App.4th 1381, 1385.
Expanding the Scope?
The California Supreme Court recently granted review of a landmark case wherein the court of appeal found that information retained by a government official on a private device was not “prepared, owned, used, or retained” by a government agency; and therefore was not a public record subject to a request under the CPRA. See City of San Jose v. Sup. Ct (2014) 169 Cal.App.4th 75. The implications of this case may have huge impacts on the scope of government records requests. If a public employee’s cell phone and the conversations contained thereon are ultimately determined to be designated as a public record, it would naturally increase the scope, and potentially the number of requests made to government agencies. Every cell phone held by every public official and public employee in the state of California is now at issue before the California Supreme Court.
With the public’s right to access public records is an important litigation tool that should be recognized and thoroughly explored in matters wherein public agencies are likely to maintain relevant information. This informal discovery can be implicated in situations ranging from city maintenance requests to even criminal investigations and outcomes. With every case that involves a public agency, care should be taken to make reasonable requests for information that can be enforced through the courts.