Q: I made a CPRA request for information regarding enforcement of a housing ordinance. The response was that “the matter is under investigation.” How long can the CPRA be denied with the explanation that the matter is “under investigation” ?
A: Under the Public Records Act, 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,” Gov’t Code section 6252(e) — are presumed to be open to the public and must be disclosed unless a specific provision of the Act or other law exempts them from disclosure.
The first question, therefore, is whether any “writing” exists pertaining to the investigation you reference. If so, the presumption is that it should be disclosed under the PRA unless it falls under one of the Act’s exemptions.
Assuming that the city division that investigates housing ordinance violations has some law enforcement authority, it is possible that the records you seek are exempt from disclosure under the Public Records Act’s law enforcement exemption, Gov’t Code section 6254(f). This exemption includes:
“Records of complaints to, or investigations conducted by, or records of intelligence information or security procedures of, the office of the Attorney General and the Department of Justice, the California Emergency Management Agency, and any state or local police agency, or any investigatory or security files compiled by any other state or local police agency, or any investigatory or security files compiled by any other state or local agency for correctional, law enforcement, or licensing purposes.” Gov’t Code section 6254(f).
Thus, if this investigation is being conducted by some “other state or local agency for correctional, law enforcement, or licensing purposes,” then it is possible that the records are exempt from disclosure. In the context of investigation records exempt under 6254(f), there is no general rule that records can be withheld during investigation but must be released once investigation is over. It is possible that the records you seek are technically exempt under this provision but that the agency is nevertheless willing to provide them to you once the investigation is over.
If the records are not exempt from disclosure under section 6254(f), then they can be withheld only if some other exemption applies. Conceivably, investigation records not otherwise exempt might be withheld under the so-called “catch-all” exemption, on the theory that release before the investigation is complete is likely to prejudice the investigation. In order to satisfy this “catch-all” exemption, though, the agency would have to establish 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.” Gov’t Code section 6255(a).
As a practical matter, you might consider asking for clarification on the grounds for the denial of your request. To the extent you conclude that the agency is not obligated to release the records at issue, you might also ask for confirmation that the records will be released promptly upon termination of the investigation and asking when that is expected to happen.