A&A: Can an agency’s CPRA defense go beyond the exemptions in the initial denial?

Q: I was recently denied government records based on a single specific exemption to the California Public Records Act. I truly believe these records should be public so I filed a lawsuit myself to compel disclosure. After serving the lawsuit, the head of the agency informed me during a meeting that they may defend the lawsuit based on additional exemptions to the Act.

My question is: once a final determination is made to withhold certain records, is a public agency limited to defending that decision based on the exemption(s) claimed in the determination letter? Are public agencies allowed to raise additional exemptions to defend a subsequent lawsuit?

Thank you very much for reading this question and for any help you may provide. Without the great wisdom of this hotline many people would refrain from keeping the government accountable.

A: Unfortunately, I am not aware of any authority holding that in defending litigation to enforce the PRA an agency may not assert grounds for refusing to disclose records that it did not assert in its pre-litigation denial.

As a practical matter, it seems fairly common for an agency facing PRA litigation to articulate reasons that the particular records need not be disclosed that it didn’t articulate when it originally denied the PRA request. I’m not aware of a situation where that practice was challenged by the party seeking the records.

If you don’t have an attorney for the litigation and have not already done so, you might consider submitting a request through the FAC’s Lawyer’s Assistance Request Form at https://firstamendmentcoalition.org/legal-hotline/lawyers-assistance-request-form/.

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.