A&A: City says it can’t fulfill CPRA request for a month

Q: I filed a CPRA request with the city for information on a story that I’m reporting on my blog. I noticed when reviewing commercial warrants that payments were made (nearly $400,000) to a private management company. The town has been giving the public regular financial reports concerning a private country club they purchased, but the aforementioned payments don’t show up on the Treasurer’s report.

My CPRA asked for documents supporting the account used that those payments came out of, and I asked for documents matching payments/accounts where they were listed as an expenditure? Just like the city of Bel, the payments aren’t matching the reports. Now the City is telling me that since they need to get records from off-site location, they need at least a month to answer the request. I denied the extension request and notified that I’m exhausting administrative remedy.

A:
As you may already be aware, California’s Public Records Act provides that agencies “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 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).

The Act further provides that in certain enumerated “unusual circumstances,” “the time limit prescribed in this section may be extended by written notice by the head of the agency or his or her designee to the person making the request, setting forth the reasons for the extension and the date on which a determination is expected to be dispatched. 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.”

“Unusual circumstances” for these purposes are defined as the following (“but only to the extent reasonably necessary to the proper processing of the particular request”):

(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.

Id.

Accordingly, the PRA does not expressly permit an agency to take a month to make a determination of whether the records are subject to disclosure or not. In practice, however, a court might be unlikely to find that an agency had violated the PRA by exceeding the 10-day + 14-day windows by a matter of weeks. The decision might depend, to some extent, on the volume of records involved and the extent to which the agency appeared to be attempting in good faith to comply with the PRA.

Note that although fees are usually available to a plaintiff who successfully sues to enforce the PRA, California’s Court of Appeal has affirmed the denial of attorneys’ fees in at least one case where an agency may have been in the process of trying to comply in good faith with the PRA but only actually produced the records after a lawsuit had been filed.

The entity and the agency had gone back and forth on getting what the requester was looking for, and the requester brought a court action to enforce the PRA. After the agency produced the document at issue, the court refused to grant the requester its attorneys’ fees on the grounds that it was not clear that the lawsuit prompted the disclosure. In that case, some of the key agency personnel were on vacation when the delay occurred and there was apparently other evidence that the agency was working in good faith to produce the records.

In deciding whether or not the suit caused the disclosure (thus making the requester eligible for its attorneys’ fees), the court said:

“…In addition to the timing of the disclosure in relation to the filing of the lawsuit, other factors to be considered are “whether the agency made a good faith effort to discover and disclose material, whether the scope of the request caused a delay in disclosure, and whether the agency was burdened by other duties that delayed its response.” Motorola Communication & Electronics, Inc. v. Department of General Services, 55 Cal. App. 4th 1340, 1346 (1997) (“Based on the uncertainties inherent in Motorola’s public records requests, and the timely efforts by the Department to respond, we conclude substantial evidence supports the superior court’s implicit finding this litigation did not cause the Department to disclose any of the documents ultimately made available to Motorola.”).

Nevertheless, it cannot be the case that requesters must tolerate significant delays, especially in the absence of any indication that the agency is working diligently to provide the records. If agencies could take as long as they wish to make records available once they’ve been determined to be responsive, then the PRA would be a relatively useless tool. Nevertheless, the Motorola case suggests that requesters should document the request and response process as fully as possible in the hope of showing that the delay was unreasonable and that litigation was necessary to force the disclosure.

Bryan Cave 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.

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