A&A: Can’t access documents because the staff member in possession is on extended vacation

Q: I requested e-mail records from a  public agency months ago. I am still waiting for many of these records and have been informed that the person who has access to these records will be on vacation for at least another month. Does the government have the right to delay responding to my request for months due to vacations? If not, do you have any cases I can mention to the agency that cover this issue? I already informed them I believed they only had 10 days to reply unless they were claiming an exemption (which they have not) but that hasn’t persuaded them.

A: It seems that you are aware that, with respect to copies of records, agencies must, within 10 days from receipt of a request for a copy of a record, determine whether the request “seeks copies of disclosable public records in the possession of the agency and shall promptly notify the person making the request of the determination and the reasons therefor.” Gov’t Code § 6253(c).

In “unusual circumstances,” an agency may extend its response time by an additional 14 days. Additionally, access to copies of records is to be provided “promptly,” Gov’t Code § 6253(b) (emph. added), and:

“[n]othing in this chapter shall be construed to permit an agency to delay or obstruct the inspection or copying of public records. The notification of denial of any request for records required by Section 6255 shall set forth the names and titles or positions of each person responsible for the denial.” Gov’t Code § 6253(d).

Thus, the 10-day deadline is not a legal deadline for producing the actual records; however, under § 6253(b) and (d), once a determination has been made as to whether the records are disclosable, actual release of the records should promptly follow.

I searched for but did not find any cases where “vacation” or other personnel considerations justified a delay in responding to a request for copies of public records. Even the “unusual circumstances” that permit an agency to extend notification by an additional 14 days do not include any circumstances that would seem to encompass the fact that the person who is the most able to locate the records is absent. “Unusual circumstances,” under the code, may include:

(1) The need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request.

(2) The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records that are demanded in a single request.

(3) The need for consultation, which shall be conducted with all practicable speed, with another agency having substantial interest in the determination of the request or among two or more components of the agency having substantial subject matter interest therein.

(4) The need to compile data, to write programming language or a computer program, or to construct a computer report to extract data.

Gov’t Code § 6253(c).

It would seem that an agency should not put an entire category of records into the hands of a single person. Rather, there should be others within the agency who are familiar with the records, and should be able to retrieve them as needed. What happens when this individual retires?

You may want to write to the agency and remind them of their statutory duty to respond to your request within 10 days, and note that there is no exception to this deadline based on vacation schedules.

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.