Q: I have been waiting for a PRA request from the Dept. of Boating and Waterways since November 4, 2010. I made an additional request on December 2nd for one piece of paper that was referred to during the last commission meeting by the lead analyst. At this time I said I would drop all my previous requests that have gone unanswered for this one piece of paper. I sent someone over to their office to see this document and he was denied entry and was told that the document would never be available. The document is not exempt. It is for a debt service ratio analysis on a loan that was approved by the commission on the word of the analyst. Today I received my 3rd delay stating the information would not be available until February 16th 2011. Everything is documented. I need advice.
A: As it sounds like you know, under California’s 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 § 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.
Additionally, the Act provides that:
“[p]ublic records are open to inspection at all times during the office hours of the state or local agency and every person has a right to inspect any public record, except as hereafter provided,” and that “[e]xcept with respect to public records exempt from disclosure by express provisions of law, each state or local agency, upon a request for a copy of records that reasonably describes an identifiable record or records, shall make the records promptly available to any person upon payment of fees covering direct costs of duplication, or a statutory fee if applicable. Upon request, an exact copy shall be provided unless impracticable to do so.” Govt. Code § 6253.
Thus, it would seem that, unless the record that you are requesting is exempt, the agency should have permitted review of the document at its offices, since, under the Act, “[p]ublic records are open to inspection at all times during the office hours of the state or local agency and every person has a right to inspect any public record, except as hereafter provided. Gov’t Code § 6253(a).
It is not obvious why any of the exemptions listed in Gov’t Code § 6254 et seq., would apply to a debt service ratio analysis for a loan to a public agency.
Oftentimes, when no specific exemption applies, agencies will invoke the Act’s so-called “catch-all” exemption, which provides that an agency may withhold public records, even if no express exemption is applicable, if it can demonstrate “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 § 6255(a).
This exemption is broad and undefined, and is routinely invoked by public agencies in denying access to public records, but often does not justify non-disclosure, as the agency must set forth facts showing that the public interest in not releasing the documents “clearly outweighs” the interest in disclosure.
If your previous requests have been oral, you might want to make a written request for the record(s) that you seek. Although requests need not be in writing, a written request should result in a written response, and if that response is a denial of your request, then the response should set forth the basis for the denial. If the agency refuses to disclose the requested records, you could try pushing back with appropriate legal arguments as to why these records are subject to disclosure.
You can find more information about the Public Records Act, including a sample request letter, at the First Amendment Coalition web site at https://firstamendmentcoalition.org/category/resources/access-to-records/.
Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to FAC 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.