A&A:Denied access to county’s seismic studies

Q: I have been seeking access to seismic studies performed as part of the county’s subway extension process but my request has been denied. I would like to make the request under the FOIA. How should I do this? Does the County have its own FOIA?

A: Since it sounds like the agency you are seeking records from is a local agency, as opposed to a federal agency, you would probably want to make your request pursuant to California’s Public Records Act.

Under the PRA, 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 therefore must be disclosed unless a specific provision of the Act or other law exempts them from disclosure.

It seems that local transportation agencies such as the MTA would qualify as a “local agency” under the PRA. Gov’t Code § 6252(a). See, e.g., L.A. Times v. Alameda Corridor Transp. Auth., 88 Cal. App. 4th 1381, 1386 (2001) (newspaper successfully sued transportation agency for disclosure of public records).

In order to justify withholding the documents you request, the agency must cite a specific exemption, and explain why it applies to the records you seek. Gov’t Code § 6253(c).

In addition to some of the specific exemptions that agencies invoke in justifying the withholding of records, some agencies cite the Act’s “catch-all” exemption, contained in Government Code § 6255(a).

This exemption states that in order to justify withholding a record, the agency must show 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).

The burden of proof is on the agency to demonstrate “a clear overbalance on the side of confidentiality.” Michaelis, Montanari & Johnson v. Superior Court, 38 Cal. 4th 1065, 1071 (2006).

You may want to resubmit your request to the MTA in writing, as described below. If the response is still negative, you might want to press the agency on why it is refusing to disclose the requested records.

Since the Act favors disclosure to the fullest extent, if any of the requested records can be segregated or redacted to still give you the information you seek, then the MTA should release with such segregation or redaction. Gov’t Code § 6253(a).

A request may be made in writing to the agency (a sample Public Records Act request letter may be found on FAC’s website: https://firstamendmentcoalition.org/cpra/frequently-asked-questions-about-the-cpra/sample-cpra-request-letter/).

The request must “reasonably describe an identifiable record or records.” Gov’t Code section 6253(b). You are not required to provide your name or address when making a request (although it might help to do so so the agency may contact you in case they need clarification with respect to the request), and you are not required to state the purpose of your request.

Records must be made available for inspection during the regular office hours of the agency. Gov’t Code section 6253(a).

Agencies may adopt certain procedures that must be followed, but such procedures cannot limit the hours during which the records are available. See Bruce v. Gregory, 65 Cal. 2d 666 (1967) (the custodian of records may “formulate reasonable regulations necessary to protect the safety of the records … [or] to prevent inspection from interfering with the orderly function of his office and its employees”).

Additionally, members of the public are entitled to obtain a copy of public records. Gov’t Code section 6253(b). The agency must respond to a request for a copy of a public record within 10 days, and the time for responding may be extended for an additional 14 days in “unusual circumstances.” Gov’t Code section 6253(b)-(c).

More information about the Public Records Act may be found at the First Amendment Coalition’s website, located here: 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.