Q: I need copies of site plans and store layout plans for evidence in a Planning Commission Appeal. I am aware of Health & Safety Code Section 19851 requiring permission from an architect. However, how does the Records Act affect 19851.
Is my assumption that the City needs to disclose emails on specific subjects correct?
A: It sounds like you know that California’s Health and Safety Code requires city and county building departments to maintain an official copy of the plans of most buildings for which it has issued a building permit, Health & Safety Code § 19850, but that fairly stringent conditions are imposed on duplicating (versus inspecting) those records. Health & Safety Code § 19851.
Under the Public Records Act, “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” is a public record that must be disclosed unless it is specifically exempted under the Act. Gov’t Code §§ 6252, 6253.
One of these exemptions, however, is for “[r]ecords, the disclosure of which is exempted or prohibited pursuant to federal or state law.” Gov’t Code §§ 6254(k). It would seem, therefore, that the restrictions of Health & Safety Code § 19851 may trump the disclosure requirements of the PRA with respect to building plans subject to § 19851.
As to your second question, to the extent e-mails relate to the conduct of the public’s business and are prepared, owned, used, or retained by a state or local agency, then they should be presumptively subject to disclosure under the PRA (i.e., should be disclosed unless they are exempted under the PRA).
A request for copies of public records must “reasonably describe[] an identifiable record or records,” Gov’t Code § 6253(b), so it may be necessary to describe the particular subjects with some specificity or to otherwise define the scope of the request so that the responsive records can be identified.
Note, though, that the PRA requires agencies to assist the public in making requests, as follows:
(a) When a member of the public requests to inspect a public record or obtain a copy of a public record, the public agency, in order to assist the member of the public make a focused and effective request that reasonably describes an identifiable record or records, shall do all of the following, to the extent reasonable under the circumstances:
(1) Assist the member of the public to identify records and information that are responsive to the request or to the purpose of the request, if stated.
(2) Describe the information technology and physical location in which the records exist.
(3) Provide suggestions for overcoming any practical basis for denying access to the records or information sought.
(b) The requirements of paragraph (1) of subdivision (a) shall be deemed to have been satisfied if the public agency is unable to identify the requested information after making a reasonable effort to elicit additional clarifying information from the requester that will help identify the record or records.
(c) The requirements of subdivision (a) are in addition to any action required of a public agency by Section 6253.
(d) This section shall not apply to a request for public records if any of the following applies:
(1) The public agency makes available the requested records pursuant to Section 6253.
(2) The public agency determines that the request should be denied and bases that determination solely on an exemption listed in Section 6254.
(3) The public agency makes available an index of its records.
Gov’t Code § 6253.1. Agency employees are not always familiar with the requirements of Section 6253.1, so it can sometimes be useful to draw attention to it when a PRA request is hampered by difficulty in identifying the records to be requested.
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.