A&A: Request for police surveillance records met with 90-day delay

Q: Our watchdog organization submitted a PRA request on three months ago for copies of audio and visual surveillance recordings made during a political demonstration. Within 10 days we received a response saying that we would get all ”releasable” items within 90 days. I have twice called, and left messages for the officer who responded to this request, with no response from him. Simply, 90 days being much more than the time allowed by law, where can we make a complaint? Is this something we should act on legally? Thanks for your help. We have used this hotline several times now and have greatly appreciated your responses

A: The Public Records Act, at Government Code section 6253(c), provides that “each agency, upon a request for a copy of records, shall, within 10 days from receipt of the request, determine whether the request, in whole or in part, seeks copies of disclosable public records in the possess of the agency and shall promptly notify the person making the request of the determination and the reasons therefor.”

The position of the Attorney General, and thus most, if not all, governmental agencies, is that this requires them only to inform the requester within 10 days of the existence of records; copies need only be provided “promptly.” Many open records advocates maintain that the law requires that the copies themselves be provided within 10 days. I am not aware of any published court decision that has either accepted or rejected either interpretation of the statute.

Either way, a 90-day waiting period does seem to be less than a “prompt” provision of records. A court would likely require the agency to justify that delay as being necessary in some way.

In terms of making a complaint, the only mechanism for the enforcement of the Public Records Act is by the filing of a lawsuit. There is no type of administrative appeal or formal complaint procedure available. You may have some success trying to contact someone else at the department if the officer who contacted you has not responded to your request.

If you are interested in pursuing legal action, you may want to submit attorney referral request form to the First Amendment Coalition:

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.