Going after omitted information
Q: What are my options for going after e-mails we believe were omitted from a public records request?
A: As a general rule, emails are treated as written documents subject to disclosure under the California Public Records Act (PRA). See San Lorenzo Valley Community Advocates for Responsible Education v. San Lorenzo Valley Unified School District, 139 Cal. App. 4th 1356, 1411 (2006).
If you believe that emails responsive to your request were not produced, you have two options. First, you can send another letter to the agency noting the oversight and requesting production of the emails in addition to whatever other documents were produced. It is usually a good idea in such a letter to mention the statute and cases holding that the agency will have to pay the Daily News Group’s attorneys fees if DNG has to file a lawsuit and then obtains access.
Alternatively, or if the follow up letter does not work, the PRA “‘sets forth specific procedures for seeking a judicial determination of a public agency’s obligation to disclose records in the event the agency denies a request by a member of the public.'” Id. at 1408 (quoting Filarsky v. Superior Court, 28 Cal. 4th 419, 426 (2002)). Specifically, you can file a petition in superior court demanding a copy of the emails. If the agency denies that such emails exist, but you have information that they do, your attorneys can take discovery to try to establish that they do exist (or, perhaps, that they have been deleted).