Filing Complaint under State Audits Guidelines
Q: In accordance with the guidelines on the CA. Board of State Audits web page (http://www.bsa.ca.gov/hotline/), I filed a complaint online concerning the improper use of outside contractors. I have requested various documents under the California Public Records Act in support of this complain. To date, I’ve only received a copy of the contractor agreement describing the scope of work, term of agreement, and related items. One of the items I’ve requested is all email communications exchanged between my employer (OES, Communications Technology Development) and the contractor. To date, I have not received this request; more than ten days have passed since I initially made these requests.
A: Under Public Records Act (“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. Although purely personal emails may be exempt under the PRA, e-mail correspondence relating to the business of the agency would likely be subject to disclosure under the PRA, unless, as stated above, a PRA exemption applies. As you seem to know, 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). Please note that in “unusual circumstances” the 10-day time limit prescribed may be extended by 14 days by written notice, setting forth the reasons for the extension and the date on which a determination is expected to be dispatched. Note, however, that there are limited reasons for extending the 10-day limit. I have listed them below.
It seems that the agency has simply ignored your request for the e-mail correspondence without citing any authority for withholding them or without giving you written notice that it will extend this time by 14 days, if this is what it is doing. I would suggest that you submit a follow-up request under the PRA for the additional records you seek, noting the agency’s failure to provide them within the 10-day limit. You might find language from the sample PRA request letter on the CFAC web site (http://www.cfac.org/templates/cpraletter.html ) useful in preparing your follow-up letter . You may also want to remind the agency of its obligation to justify withholding records under the PRA.
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 in your next communication with the agency.
The reasons for the 14 day extension are limited to the following:
(1) The need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request.
(2) The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records that are demanded in a single request.
(3) The need for consultation, which shall be conducted with all practicable speed, with another agency having substantial interest in the determination of the request or among two or more components of the agency having substantial subject matter interest therein.
(4) The need to compile data, to write programming language or a computer program, or to construct a computer report to extract data.
(Gov’t code § 6253).