Former State Employees and the CPRA
Q: I have a question regarding physical access to a public building. I am a former employee for the Housing Authority of my City, I recently went back to the Central Office building in which I worked to visit some personnel still working there. This building is open to the public and has public access areas, when I tried to enter the building I was informed by the security guard (per instructions from the Executive Director) that since I was a former employee of the agency I could not go into the public access areas but I had to go to Human Resources to go through some sort of screening process. As long as I stayed within the areas accessible by the public I do not feel that this extra screening is appropriate and is an infringement of my rights. Any assistance you can give me in this matter is greatly appreciated.
Also a second matter, a former employee of the agency submitted a request via the California freedom of information act for three separate reports done for the agency. After stalling and requesting an extension the Executive Director refused the request and said that they would supply him with the combined report (which is already in our possession). We were requesting the original 3 reports to verify that there were no changes or omissions in the combined report that is being used against union employees. Do they have a right to do this and if not what is the next step that we can take to obtain this documentation (the agency will not even let us view the separate reports).
A: With respect to your first inquiry, regarding access to a public building, unfortunately, your inquiry appears to fall beyond the scope of CFAC’s expertise, which is primarily focused on First Amendment, open government and access issues. I have included a link the California Bar Association’s website, so you may be able to find an attorney with expertise in these types of access issues. You can find information about finding an attorney at the web site: http://www.calbar.ca.gov/state/calbar/calbar_generic.jsp?cid=10182.
With respect to your second inquiry, the California Public Records Act governs access to records of public agencies. Under the Public Records Act, records are presumably public and available for inspection, unless a specific exception applies. Cal. Govt Code Section 6253. It is not clear what exemption the agency claims applies to the individual reports. Conceivably, it is claiming that the individual reports are “[p]reliminary drafts, notes, or interagency or intra-agency memoranda that are not retained by the public agency in the ordinary course of business,” which are exempt from disclosure “provided that the public interest in withholding those records clearly outweighs the public interest in disclosure.” Section 6254. Even if the reports could properly be characterized as preliminary drafts, however, even preliminary notes and memoranda must be disclosed unless the interest in withholding them clearly outweighs the public interest in disclosure. In Citizens for a Better Env’t v. Dept of Food Agric., 171 Cal. App. 3d 704 (1985), the court established a three-step analysis to determine if the exception applies. First, it applies only to “predecisional” documents, and is meant to “protect[] the deliberative materials produced in the process of making agency decisions,” but not to factual materials or follow-up reports. Id. at 713. Next, the exemption applies only to records that are not normally kept on file. Id. at 711. If the record meets the first two criteria, then those portions which are a “recommendatory opinion” may be withheld. Id. at 717. Accordingly, the agency may be obligated to disclose the individual reports you seek.
In order to formally request a public record, you should request in writing the specific records you seek. Please see the following link for a sample letter we have provided for this purpose: http://www.cfac.org/templates/cpraletter.html. The agency can take up to 10 days to provide copies of the records or inform you of its decision not to do so. Govt Code Section 6253(c). A denial of a request for a public record must include specific statutory authority for the denial, as well as the names and titles of the individuals responsible for the denial. Govt Code Section 6253(c); 6255.
Under the Public Records Act, if an agency continues to refuse access to public records, a civil lawsuit is an available remedy. Govt Code Section 6258 (“Any person may institute proceedings for injunctive or declarative relief or writ of mandate in any court of competent jurisdiction to enforce his or her right to inspect or to receive a copy of any public record or class of public records under this chapter.”). The PRA provides that successful litigants should receive their attorneys’ fees. Govt. Code Section 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.”).