Air Quality District Records
Q: I called the Bay Area Air Quality Management District (BAAQMD or “Air District”) regarding the presence of serpentine soil in a quarry near my home after reading their geology report. Serpentine soil usually contains naturally occurring asbestos and is regulated by the asbestos ATCM (Airborne Toxic Control Measure) which is currently not being utilized. The inspector called back and left a message on my answering machine saying testing was done which was negative for asbestos. However, when I subsequently submitted an information request to the air district, they replied that they had no such records. I later spoke with the same inspector and he said the public does not have access to certain records in the Air District. What do you think?
A: It appears that the Bay Area Air Quality Management District (BAAQMD) is a local agency subject to the California Public Records Act (PRA). In fact, the BAAQMD website states that public records in possession of the BAAQMD can be accessed by submitting a request pursuant to the PRA. I would suggest that instead of calling the agency, you submit a PRA request for the records you seek. Under the PRA, 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,” Govt. Code Section 6252(e)), are open to the public unless a specific provision of the PRA or other law exempts them from disclosure. The PRA requires agencies to provide you with the documents requested, or notify you that your request has been denied, within 10 days. (Gov’t Code § 6253). If the written request is denied, the agency is obligated to back its denial by citing an exemption in the PRA or other state or federal law allowing it to withhold the records you seek. (Gov’t code § 6255). It sounds like the agency is stating that the records are nonpublic without providing you with a basis for their denial. You might remind them in your written PRA request of their obligation to cite a specific provision of the PRA or other state or federal law allowing them to withhold such records. A sample PRA request letter can be found on the CFAC web site at the following link: http://www.cfac.org/templates/cpraletter.html.
The ultimate recourse under the PRA in the event of an improper denial is to initiate litigation. It is sometimes helpful to remind the agencies that the prevailing parties in a PRA litigation are entitled to their attorneys’ fees. Govt. Code § 6259(d) (“The court shall award court costs and reasonable attorney fees to the plaintiff should the plaintiff prevail in litigation filed pursuant to this section. The costs and fees shall be paid by the public agency of which the public official is a member or employee and shall not become a personal liability of the public official. If the court finds that the plaintiff’s case is clearly frivolous, it shall award court costs and reasonable attorney fees to the public agency.”). You might want to highlight this fact also in your next communication with the agency.