Copies of Tapes for Public Record Requests
Q: Re: CPRA request for audio taped record of open meeting: I have submitted a request for copies of tapes made of 3 open Hospital Board meetings, held within 3 weeks of each other. I submitted the request well before 30 days had passed from the first meeting, and before the minutes had been transcribed or approved by the Board (in fact, the minutes have not yet been published or approved, as the next meeting is 4 days from today).
I have been told that the secretary has no means to copy the tapes and that she plans to tape over the tapes I have requested if I have not figured out a way to copy the tapes myself before the next meeting (in 4 days). The President of the Board has stated that I have every right to a copy but that they have no way to give me one. I do not wish to listen to it in the secretary’s office. I want my own copy.
I have no equipment to do such a tape copy. I have proposed that, since the secretary plans to reuse the tapes and not to preserve them, that they simply give me the original tape and I will give them a new tape of the same type and quality. That will satisfy my request for an audio tape of the meetings, and the Hospital will have a new tape to use.
They are balking at giving me the tape even though they plan to tape over the contents.
How do I address this? Are there any precedents or statutes I can cite in my appeal of their essential refusal to give me the public records I have requested?
A: Government Code section 54953.5(b) provides that any tape recordings of meetings subject to the Brown Act that are made at the direction of the local agency shall be made publicly available by the local agency pursuant to the Public Records Act, by providing interested members of the public with the tape and a tape player on which they can listen to the tape. Section 6253(b) of the Public Records Act provides that upon request for a copy of a public record, the agency shall make the records “promptly” available to any person “upon payment of fees covering direct costs of duplication, or a statutory fee if applicable.” However, the statute goes on to state that an exact copy shall be provided “unless impracticable to do so.” Unfortunately, I am not aware of any authority interpreting this latter clause.
Your proposal to supply the agency with a new tape so that they do not record over the old one seems very reasonable, but it may not be possible to force the agency to accept your offer. In light of the short time, you might consider offering to supply the agency with a new tape without requiring them to turn over the old one to you simply to prevent them from taping over the old one. Ultimately, however, you might need to arrange to make a tape-to-tape copy with your own equipment. In the meantime, however, you could argue that in light of the Brown Act’s requirement that you be able to listen to the tape and your offer to supply them with a new tape in order to preserve the old one while you figure out a way to make the duplication (or convince the agency to invest in some basic tape duplication equipment), refusing to accept your new blank tape and instead recording over the old one is unreasonable and possibly a violation of the Brown Act. This might satisfy the agency’s concern about turning over the original tape to you and would still preserve the old recording.