Public Availability and Destruction of Temporary or Handwritten Notes
Q: The last time I used the Legal Hotline for this matter (a few weeks back), your legal council suggested that I re-submit a new, formal PRA request asking for the “binder notes” from our County Public Works Director.
So, I used a version of the sample letter provided on cfac.org, as suggested, where it reads:
“In any event, please provide a signed notification citing the legal authorities on which you rely if you determine that any or all of the information is exempt and will not be disclosed.”
But, now, here’s my problem: he won’t cite any legal authorities, after three separate e-mails requesting that information. He just keeps saying “they (the notes) don’t exist” or claiming that they were temporary, hand-written notes, after writing in two other e-mails that he took “binder notes” on the subject.
And, so, I don’t know what to do.
Is he required to cite a legal authority, or can he simply just say, “the notes don’t exist,” and then that’s that?
If he is required to cite a legal authority, how do I compel him to do it?
A: I’m sorry you are having difficulty with your Public Records Act (“PRA”) request. One provision of the PRA of which you should be aware is Government Code section 6253.1, which provides:
6253.1. (a) When a member of the public requests to inspect a public record or obtain a copy of a public record, the public agency, in order to assist the member of the public make a focused and effective request that reasonably describes an identifiable record or records, shall do all of the following, to the extent reasonable under the circumstances:
(1) Assist the member of the public to identify records and information that are responsive to the request or to the purpose of the request, if stated.
(2) Describe the information technology and physical location in which the records exist.
(3) Provide suggestions for overcoming any practical basis for denying access to the records or information sought.
(b) The requirements of paragraph (1) of subdivision (a) shall be deemed to have been satisfied if the public agency is unable to identify the requested information after making a reasonable effort to elicit additional clarifying information from the requester that will help identify the record or records.
(c) The requirements of subdivision (a) are in addition to any action required of a public agency by Section 6253.
(d) This section shall not apply to a request for public records if any of the following applies: (1) The public agency makes available the requested records pursuant to Section 6253. (2) The public agency determines that the request should be denied and bases that determination solely on an exemption listed in Section 6254. (3) The public agency makes available an index of its records.
You might want to remind Director of the agency’s obligations under this provision.
With regard to your inquiry about what authority the Director is required to provide in responding to a PRA request, Government Code Section 6255 provides:
(a) The agency shall justify withholding any record by demonstrating that the record in question is exempt under express provisions of this chapter or that on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.
(b) A response to a written request for inspection or copies of public records that includes a determination that the request is denied, in whole or in part, shall be in writing.
In the event the notes at issue still exist in some form, even as binder “scribbling,” they are presumptively public, and the Director is required to justify they non-disclosure by citing to a particular exemption in the Act. In that regard, as I explained in response to your prior inquiry, the county may argue that the notes you seek can be withheld pursuant to the exemption for “preliminary drafts, notes, or interagency or intra-agency memoranda,” which applies only to documents that are “not retained by the public agency in the ordinary course of business” and only if “the public interest in withholding those records clearly outweighs the public interest in disclosure.” Gov’t Code § 6254(a).
However, in the event the notes have been destroyed, the agency’s only obligation under the PRA is to inform you that the records you are seeking do not exist (subject of course to its obligations in section 6253.1, as described above). Although the PRA does not prohibit the destruction of records, California has various record retention laws that may apply here.
For example, Section 34090 of the Government Code provides for the lawful destruction of city records in certain circumstances:
Unless otherwise provided by law, with the approval of the legislative body by resolution and the written consent of the city attorney, the head of a city department may destroy any city record, document, instrument, book or paper, under his charge, without making a copy thereof, after the same is no longer required. This section does not authorize the destruction of:
(a) Records affecting the title to real property or liens thereon.
(b) Court records.
(c) Records required to be kept by statute.
(d) Records less than two years old.
(e) The minutes, ordinances, or resolutions of the legislative body or of a city board or commission.
Section 34090.5 further provides that:
Notwithstanding the provisions of Section 34090, the city officer having custody of public records, documents, instruments, books, and papers, may, without the approval of the legislative body or the written consent of the city attorney, cause to be destroyed any or all of the records, documents, instruments, books, and papers, if all of the following conditions are complied with:
(a) The record, paper, or document is photographed, microphotographed, reproduced by electronically recorded video images on magnetic surfaces, recorded in the electronic data processing system, recorded on optical disk, reproduced on film or any other medium that is a trusted system and that does not permit additions, deletions, or changes to the original document, or reproduced on film, optical disk, or any other medium in compliance with Section 12168.7 for recording of permanent records or nonpermanent records.
(b) The device used to reproduce the record, paper, or document on film, optical disk, or any other medium is one which accurately and legibly reproduces the original thereof in all details and that does not permit additions, deletions, or changes to the original document images.
(c) The photographs, microphotographs, or other reproductions on film, optical disk, or any other medium are made as accessible for public reference as the original records were.
(d) A true copy of archival quality of the film, optical disk, or any other medium reproductions shall be kept in a safe and separate place for security purposes.
However, no page of any record, paper, or document shall be destroyed if any page cannot be reproduced on film with full legibility. Every unreproducible page shall be permanently preserved in a manner that will afford easy reference. For the purposes of this section, every reproduction shall be deemed to be an original record and a transcript, exemplification, or certified copy of any reproduction shall be deemed to be a transcript, exemplification, or certified copy, as the case may be, of the original.
You also requested information regarding the availability of attorney’s fees should you challenge the Director’s actions. If you ultimately determine/believe that the city has withheld the records improperly, you have the option of filing a lawsuit under the PRA. The PRA provides that prevailing parties in a PRA litigation be awarded 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 as well in your next communication with the Director.