Q: I requested documents regarding disciplinary action taken against me by my employer, a metro department of transportation. It’s been more than a month and I’ve not received a reply. What would be the next course of action?
A: The Public Records Act gives local agencies 10 days to respond to a request for a copy of a public record; the time for responding can be extended by the agency for an additional 14 days in “unusual circumstances.” Gov’t Code § 6253(b) and (c).
This section goes on to state:
“No notice shall specify a date that would result in an extension for more than 14 days. When the agency dispatches the determination, and if the agency determines that the request seeks disclosable public records, the agency shall state the estimated date and time when the records will be made available.” Gov’t Code § 6253(c).
The code then states what might constitute “unusual circumstances,” including:
(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).
Additionally, access to copies of records is to be provided “promptly,” Gov’t Code § 6253(b), 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.
Finally, if the requester is only seeking to inspect the records (as opposed to getting copies of the records), the Act requires that such records be made available for 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).
Thus, it seems that nearly two months to respond to records request violates the plain language of the Act. You might consider writing to the agency against, restating your request and reminding the agency of its statutory duty to respond within ten days. Please keep in mind that if the agency responds that the records are not disclosable under the Act, it must state the specific exemption it is invoking, and how that exemption applies. Gov’t Code § 6253(c).
If an agency refuses to provide records under the Act, the ultimate recourse is filing a lawsuit under Government Code Section 6259. Such lawsuits are typically initiated by a verified petition (i.e., a request filed under oath) that asks the court to issue a writ of mandate, which is a type of order directing the public agency to take a specified action. Attorney’s fees are available to a plaintiff who prevails in litigation filed pursuant to the Act, Government Code section 6259(d).
In any follow-up correspondence you have with the university regarding the fact that you have not received the requested records, you may want to (subtly, but firmly) point out that attorney’s fees are available should you take the agency to court and prevail. If you are looking for an attorney to represent you in this matter, you might consider trying the FAC’s Lawyer’s Assistance Request Form at https://firstamendmentcoalition.org/lawyers-assistance-request-form/.
You might also find this link, which contains additional information about the Public Records Act, including a sample request letter, helpful: 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.