Third Party Notification
Q: Does the custodian of a public record have the right to notify the party that someone is requesting their public record? I.e., there was a bid for a public entity that is now closed. I want to obtain a copy of the winning bid, but the custodian is saying that they have to notice all requests to the party that placed the bid. This doesn’t seem quite right.
A: Under Public Records Act (“PRA”), public records (which include “any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics,” Govt. Code Section 6252(e)), are open to the public unless a specific provision of the PRA or other law exempts them from disclosure. Under section 6253, you are entitled to review public records at any time during the office hours of the agency that has the records, or, under section 6256, you can submit a request in writing. We are not aware of any requirement that the agency may not release the records until it notifies the party that submitted them. Although we are also not aware of any provision of the PRA that would prohibit the agency from doing so, it would seem to be inconsistent with section 6256.2 (which states that “nothing in this chapter shall be construed to permit an agency to delay access for purposes of inspecting public records…”) and section 6257 (which states that an agency “shall make the records promptly available to any person” upon payment of fees) that the agency could delay your access to the records while it notifies a third party of your request.
With respect to copies of bids once a contract has been awarded, such records may contain information that may be considered trade secrets, in which case they would be exempt from disclosure under section 6254(k) of the PRA. Section 6254(k) exempts from disclosure “[r]ecords the disclosure of which is exempted or prohibited pursuant to federal or state law.” Trade secrets are generally protected from disclosure to the public under both state and federal law. “Trade secret” is defined under California law as: “information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (1) Derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and (2) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.” Cal. Civ. Code § 3426.1. “Trade secret” is defined under federal law as: “all forms and types of financial, business, scientific, technical, economic, or engineering information, including patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing if: (A) the owner thereof has taken reasonable measures to keep such information secret; and (B) the information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by, the public.” 18 U.S.C. § 1839. This may be the reason for the agency’s policy in notifying the party that placed the bid about the request for copies of them. However, where the trade secret owner failed to designate the information as trade secret when submitting it to the public agency, you may have an argument that such information has lost its status as trade secret — and, thus, that it is subject to disclosure to the public — on the grounds that the trade secret owner failed to take reasonable measures to keep the information secret. Moreover, even if the trade secret owner designated the information as trade secret, where a record contains information that is exempt from disclosure but otherwise public in character, the PRA imposes a duty on the agency to redact the exempted information and produce the nonexempted information (unless the exempt and nonexempt information are so interwoven as not to be reasonably segregable).
Although I understand you are seeking copies of bids, you should know that once the agency awards a contract, the contracts themselves are subject to disclosure under the PRA. San Gabriel Tribune v. Superior Court, 143 Cal. App. 3d 762 (1983). Also, in the San Gabriel Tribune case, the court rejected any claim by the city that financial information submitted to the city by a waste disposal company was exempt from disclosure as confidential proprietary information. San Gabriel Tribune v. Superior Court, 143 Cal. App. 3d 762 (1983).
You may want to contact the agency once again to submit a written request under the PRA for the documents you seek. The PRA requires agencies to provide you with the documents requested, or notify you that your request has been denied, within 10 days. (Gov’t Code § 6253). If the written request is denied, the agency is obligated to back its denial by citing an exemption in the PRA or other state or federal law allowing it to withhold the records you seek. (Gov’t code § 6255). You might want to remind the agencies of their obligation to provide you with the records, or to cite the authority that allows them to withhold it. A sample PRA request letter is found on CFAC’s website at the following link:
http://www.cfac.org/templates/cpraletter.html.
I do not believe that a private entity bidding for a public contract qualifies as an “agency” for purposes of section 6253(c)(3). That section refers to the need for the agency to consult with “another agency” or “among two or more components of the agency” as a basis for taking longer than the 10-day limit to respond to your request. As noted in my initial response, the PRA requires agencies to provide you with the documents requested, or notify you that your request has been denied, within 10 days of submitting a written request. Gov’t Code § 6253. “In unusual circumstances,” this 10-day limit may be extended by 14 days. Gov’t code § 6253. “Unusual circumstances” is limited to four situations, one of which is the one found in 6253(c)(3), which you have quoted in your follow up question. The fact that the term “another” qualifies the term “agency” in that section would seem to indicate that “another agency” refers also to a public agency and not, for example, to a private entity bidding for a public contract.
Please note, if the agency has determined to extend the 10-day limit, it MUST first notify you in writing of such extension and must set forth, in the notice, the reasons for the extension. Thus, unless the agency has notified you that it will extend the 10-day limit by 14 days and has cited one of those four reasons as the basis for the extension, the agency is not within its rights to withhold disclosure of non-exempt public documents beyond the 10 days.
If you determine the agency is improperly withholding public documents, you have the option of filing a lawsuit under the PRA. It is sometimes helpful to remind the agencies that the prevailing parties in a PRA litigation are entitled to 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 in your next communication with the agency.