Request Denials, No Documentation
Q: Can our City Clerk deny us information because he/she “has no documentation” regarding a municipal action being taken that may require a primary legal action? Our Economic Development Director is hiring a consultant to counter a member of the public’s nomination of a building to the State Historic Resource Register and I was told that verbally. However, when I ask about it officially, I get the answer from the Clerk “I have no documentation on that” and no answer from the Econ. Development Director. I also asked if in their sale of the building in question they had begun the CEQA process, and again all I get from the Clerk is “I have no documentation on that.” Do I, as a member of the public, have the right to know in one form or another the business and legal transactions my City initiates?
A: As you know, one of the most powerful tools for monitoring government activities in California is the Public Records Act. The PRA, however, provides for the disclosure of existing records and not for the disclosure of information in general. To make effective use of the PRA, it is therefore useful to frame requests in terms of particular documents. In the situation you describe below, for example, it might be useful to request “all documents related to CEQA process” with respect to the particular building. It might also be useful to make your request in writing, which might help focus the request for the agency. As a practical matter, it is also usually helpful to find out as much as you can about what kind of records should exist with respect to a particular issue and what agency should have them.
You should also know that Government Code Section 6253.1 (reproduced below) provides certain steps that an agency “shall” take “in order to assist the member of the public make a focused and effective request that reasonably describes an identifiable record or records.” It might be worth explicitly referring to this section in your request to remind the agency of its obligations in this respect.
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.