Q: I used to work for the State of California. I lost my job and I am trying to get information on a program administered by my employer. This program is funded by the Federal government. I am being met with resistance because the Public Request officer is simply forwarding my request to my former supv/mgr, and she claims that the documents/information I am requesting is not available. I know that the information I am requesting is entered into an in-house database, assigned a certification number and put in a physical file folder. Yet the supv/mgr continues to ignore my request.
I have told the person acting as the liaison for public records that this manager will not provide the information because it is directly related to information she used in a disciplinary action she took against me. She even refused to acknowledge having that information when she was served with a subpoena. Unfortunately, I don’t have an attorney so I am representing myself.
A: From what I understand, you are attempting to get records, possibly stored electronically, from the state, but your requests have thus far gone unfulfilled due to the agency’s contention that the documents are not available.
First, just to clarify, if you are attempting to get records from a state agency, then the Public Records Act is the correct vehicle for getting those documents. (The Freedom of Information Act is the law that covers records requests from federal agencies.)
Second, it would seem that if the agency has the records that you are requesting, then, unless some exemption applies, those records should be made available to you in whatever form those records are kept. Gov’t Code § 6252(e).
Is the Public Records manager claiming that the records are simply not available to you, or is she claiming that they do not exist, or are somehow exempt from disclosure under the Act? If the agency is claiming an exemption applies, it should, under the Act, 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 therefore. Gov’t Code § 6253(c).
There are a host of exemptions that apply, including one for personnel matters. That said, courts are instructed to liberally interpret the Act in favor of disclosure, so even if the agency does invoke some exemption, there may be an argument that the exemption does not apply to the extent that the agency claims it applies.
Finally, you also mentioned that your former supervisor was served with a subpoena. If you are litigating against the state, the discovery process may provide another method by which you could get the records that you seek.
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.