Q: Is it a violation of the Public Records Act for public officials to compile potentially incriminating electronic documents on their own, in response to PRA requests, with no actual oversight?
I just learned that when a Public Records Act request is submitted to the City Manager of my hometown, for potentially incriminating electronic documents of a City Council member, the City Manager requests that the City Council member compile the requested documents on their own, with no actual oversight or auditing, even though the City Manager’s office presumably has access to the Council member’s electronics documents, through the City’s servers.
This process strikes me as a violation of the spirit of the Brown act, because it does nothing to prevent the Council member from destroying or failing to supply records, or to assist the public in discovering when this occurs.
Can I compel the City Manager’s office to compile the records themselves, through the threat of legal action?
A: I am not aware of any provisions of the CPRA that specify the method by which an agency must go about compiling records in response to a request,
or any provisions that require the designation of certain officials to oversee the process. I am not sure that you could compel the city manager’s office to compile the records through litigation.
Of course, if you feel that the city council member is destroying records that are responsive to your request, such actions would, of course, expose the city to potential litigation, as this would seem to be a patent violation of the Act. One would hope that the city manager and/or city attorney would have made the city council member aware of his or her obligations under the Act, and that the city council members keep this in mind when reviewing potentially responsive records.
If you are concerned that city council members are not aware of their obligations, you might make a public records request for any training materials or other literature that the city provides to them regarding the Act.
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.