Requesting Audio Tapes, Time of Response
Q: During a meeting of the Executive Committee of a Neighborhood Council, I requested copies of the audio and video tapes taken of the meeting because of objectionable comments made about me by one of the board members. I was told during that meeting by the committee members that I could have copies and would be contacted shortly with information as to cost. I was not contacted. At the full board meeting, I again requested copies of the tapes from the meeting, and I asked to review the tapes. The tapes are in the possession of the vice president of the board member, who is the one who made objectionable comments about me. The president of the board has been attempting to contact the vice president; the communications officer has been attempting to contact the vice president, but the vice president is not responding. The board has already responded to my request for these public records by telling me (in both meetings) that I could have copies, but the vice president is not forthcoming with the tapes so they can be copied. I think the delay is unreasonable; it’s a simple matter to hand the tapes over to another board member so they can be copied. How do I go about getting copies of the tapes?
A: Under Government Code section 54953.5, any tape or film record of a public meeting “shall be subject to inspection” under the California Public Records Act.
However, this section allows the Council to erase or destroy the tape within 30 days after the taping or destroying.
The typical procedure to follow in this circumstance would be to submit a written request under the PRA for the tapes, noting that your oral request has been twice approved. In theory, you should have an immediate right to see and copy the tapes, as the PRA provides that anyone should be able to view a public record upon demand. However, an agency can take 10 days to respond to a PRA request, and if the Council did so here it would be beyond the 30-day limit and they might respond by saying the tapes have been erased.
At this point, you might consider a couple of additional options.
First, in your written PRA request, you could note that you made your original request on August 29 and was told it would be granted. At this point, if the Council were to erase or destroy the tapes before providing you a copy it would violate the PRA and constitute spoliation of evidence. However, that is no guarantee that the VP won’t erase them anyway. If you decide to go the letter route, I would add in the letter that, if you have not received a copy by next Tuesday morning, Sept. 26, you will have no choice but to file a lawsuit under the PRA, in which case the Council will be required to pay your attorneys fees even if it voluntarily provides a copy to you after you file suit (ie, before the court orders it to do so).
Second, you could — now or on Sept. 26 — file a writ petition in court under the PRA, and serve a copy of the Council immediately with a cover letter reminding the Council that, since you have requested copies and been wrongly denied copies to this point, the Council cannot erase the tapes at the 30-day juncture and must preserve them in the event the court orders copies to be provided to you. To fully protect yourself, you would also file an application for a temporary restraining order (TRO) to get the court to issue an immediate order to prevent erasing or destruction of the tapes while your case was pending. If you go this route, it is important that you file your lawsuit and get your TRO before Sept 28, which is 30 days after the August 29 hearing.