Q: My request to the County Tax Collectors’ office for “any handbook, manual or instructions that delineate the process in which your office processes claims for excess proceeds” is almost one month past the day they received the request and have refused to respond. What should I do?
A. It seems that the agency is ignoring your request without citing any authority for withholding the record or without giving you notice that it will extend its allowable time by 14 days (which, as explained below, the California Public Records Act “PRA” permits in unusual circumstances). What I suggest you do is to submit another request. Be sure to specify that this second request is being made under the PRA. The sample PRA request letter you can find here may be useful in preparing your follow-up letter.
With respect to the exemptions that might apply, it is possible that the “catch-all” exemption found under § 6255 of the PRA may be cited by the agency to withhold the manual. Under this “catch-all” exemption, records will not be disclosed if it is found that the public interest in nondisclosure outweighs the public interest in disclosure. In a case that might be of some relevance, a group of hospitals that had been determined by the Department of Health Services to be out of compliance with Medi-Cal sought to obtain the department’s fiscal audit manual. Eskaton Monterey Hospital v. Myers, 134 Cal. App. 3d 788 (1982). The Court of Appeals applied the catch-all exemption and held that the public’s interest in disclosure of the manual was clearly outweighed by the public interest in not allowing Medi-Cal providers to circumvent governing regulations by using the audit manual as a guide for “manipulating expenditure itemizations.” Id. However, the fact that this exemption allowed this particular agency to withhold this type of information does not necessarily mean that it would apply to exempt this kind of information in the hands of your County Tax Collector’s Office. This exemption must be applied on a case by case basis. The California Supreme Court has stated that “this provision contemplates a case-by-case balancing process, with the burden of proof on the proponent of nondisclosure to demonstrate a clear overbalance on the side of confidentiality.” Michaelis, Montanari & Johnson v. Superior Court, 38 Cal. 4th 1065, 1071 (2006). If the agency denies your request based on the catch-all exemption, press the agency to fully articulate the public interest served by nondisclosure. This may allow you to address the reasons the agency is asserting and persuade it to release the information.
As noted above, “in unusual circumstances,” the 10-day limit that agencies have to respond to PRA requests may be extended by 14 days. (Gov’t code § 6253). However, 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. Note that “unusual circumstances” is limited to the following:
(1) The need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request.
(2) The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records that are demanded in a single request.
(3) The need for consultation, which shall be conducted with all practicable speed, with another agency having substantial interest in the determination of the request or among two or more components of the agency having substantial subject matter interest therein.
(4) The need to compile data, to write programming language or a computer program, or to construct a computer report to extract data.
(Gov’t code § 6253).
The ultimate recourse under the PRA in the event they ignore your subsequent request or in the event of an improper denial is to initiate litigation. 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.
If you are considering engaging legal counsel to represent you in this matter, you might want to try the FAC Lawyer’s Assistance Request service. Alternatively, you can also try the website for the State Bar of California which contains information about finding an attorney. Below are links to both websites.