Q: My local Neighborhood Council put forth a motion in the Urban Design and Preservation Committee to ban short term rentals. Luckily one concerned neighbor caught it and individually contacted 100 Airbnb hosts, 50 of whom showed up at the Council meeting that night. The Council referenced a complaint letter but wouldn’t show it to us because they said the writer wished to remain anonymous for fear of retaliation. I found out I could request the letter under the PRA. I did and they sent it. It was an anonymous letter. But it was dated four days after the motion was put online. So again I asked for the letters that were so alarming as to cause the Council to go straight to a motion without gathering consensus of stakeholders in the community. They finally offered five letters that were anonymous and heavily redacted. I filed a grievance with DONE (Dept. of Neighborhood Empowerment, the Neighborhood Council’s oversight committee). DONE instructed the Council to comply. They have not.
I subsequently submitted a second PRA for all correspondence on this issue – to stakeholders, press, each other, etc. They have not complied. I know for a fact other correspondence exists because some emails were forwarded to me by stakeholders.
Where this gets tricky is that the Neighborhood Council member who put forth the motion works part time in a City Councilman’s office and his office had forwarded her two of these complaint letters. He is on the Tourism Committee – all of it a direct conflict of interest.
So my question is, how do I get them to comply?
A: If an individual makes a request for records under the Public Records Act, the agency is required to respond to the requester within 10 days, although this may be extended by up to 14 days in unusual circumstances. Gov’t Code § 6253(c). If the agency contends that any records are exempt from disclosure, they must, in their response, identify the exemption and explain why it applies to the requested records. Gov’t Code § 6255. They must also justify the exemptions that warrant any redactions made.
Once the agency determines whether the requested records are subject to disclosure, such copies are 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.” Thus, the 10-day window 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.
Unfortunately, there is not much guidance in California case law as what constitutes “prompt” disclosure. In one recent case, Marken v. Santa Monica-Malibu Unified Schl. Dist., 202 Cal. App. 4th 1250, 1268 n.14 (2012), the court of appeal noted that it had “serious questions” about whether a delay of one month, following the school district’s determination that the records requested were subject to disclosure, was warranted.
On the other hand, the court in Rogers v. Superior Court, 19 Cal. App. 4th 469, 483 (1993), found a two-month delay for “most” records that the city was required to produce was in compliance with the Public Records Act. However, note that in this case, the city initially did not know that some of the records that it eventually produced were in its possession, and once it discovered those records, produced them “promptly,” which may have played into the court’s determination that the city had not violated the Act. Id.
In your case, it sounds like the Neighborhood Council has provided no response whatsoever to your second PRA request. If more than 14 days has passed since your request and they have not responded, they are in violation of the PRA. If they have responded by indicating they are withholding documents due to various exemptions, you might consider reminding them that under the PRA, “disclosure is favored,” and therefore “all exemptions are narrowly construed.” County of Santa Clara v. Superior Court, 170 Cal. App. 4th 1301, 1321 (2009).
If the Neighborhood Council did send an initial response, but they have not produced disclosable records within a reasonable time, they may also be in violation of the PRA. In this case, given that these letters are probably not difficult to locate and copy, the council members’ delayed response may not be reasonable under the Act.
Depending on how much more the agency resists, you may also want to remind them that attorneys’ fees are available should you be required to bring a lawsuit to enforce disclosure under 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.