Prohibiting a citizen from contacting a public agency
Q: The Director of the County Department of Planning and Land Use has decided that I and one other person are part of a “conspiracy” to make the department look bad.
It is alleged that this other person and I take department information and “twist it.”
Both us have been prohibited from contacting any DPLU employee directly, except for the designated PRA contact person.
As a result of my PRA request related to the PRA contact person’s job, I found that it consists primarily of handling attorney’s requests.
There were a few folks asking about their neighbor’s code enforcement problems, but only the two us were regular customers.
I cannot find anywhere in the PRA text where it allows an agency to limit the access of the public to public employees as is being done with us.
I believe that we are being treated unequally, and illegally.
A: As you likely are aware of, under California’s Public Records Act (PRA), the public has a right to inspect and obtain copies of documents collected or maintained by state or local agencies unless a particular exemption of the PRA or other law authorizes the agency to withhold the record. Under the PRA, every agency is free to adopt regulations and procedures to be followed when making its records available. Gov’t Section 6253. Thus, the agency can designate a contact person to be contacted for purposes of records requests under the PRA. However, nothing in the PRA or any other state or federal law prohibits a member of the public from contacting a public employee. The public employee may decide not to speak with you or answer your questions. In addition, if your question involves access to records and such agency has designated a PRA contact person, that employee may direct you to the designated PRA contact person. However, nothing prevents you from contacting public officials.
Furthermore, generally speaking, it is unconstitutional for government agencies to prohibit public employees and elected officials from speaking to the public or even from making public comments to the media.
There are, however, certain exceptions to this general rule. The instances where courts have permitted government agencies to prohibit its employees from speaking on certain subject matter and to even discipline them for voicing their opinion is when such employee is speaking in his or her official capacity as opposed to speaking as a private citizen. For example, the court ruled in Kotwica v. Tucson, 801 F.2d 1182, 1184-85 (1986), that a city could properly discipline a recreation supervisor for using an official interview, as a city spokeswoman, to comment on or criticize her department’s policies in a manner that was inconsistent with the employer’s directions and misstated the employer’s policy. Additionally, where the public official is a high-ranking officer and his or her comments could potentially undermine the mission of the government agency, it is probably legal for the government agency to place restrictions on the employee’s speech and discipline that employee if he or she violates them.