A&A: City finds many ways to deny CPRA requests for emails

Q: My newspaper has had difficulty accessing City emails via public records requests. Our city has a written policy of only making available email from the city server (city manager, city finance director, etc.) for a 30 day time period from the date of the submission of the public record request. PRA requests are repeatedly denied for documents (specifically email) outside the 30-day window even though that email still exists on city servers and are not deleted. Is this permissible under the California Public Records Act?

Also we believe but cannot prove that the city manager is playing a role in determining which email we can see or not see with the few email provided by the city in their limited response. The city manager also broadcasts a report detailing our PRA requests in an email to all city council members and the mayor to warn them of our requests. Does the PRA allow the city manager to play a role in censoring which email we can read or not?

Also, the city attorney, often in cahoots with the city manager and mayor, has a broad ability to curtail our document requests by declaring ”off limits” matters subject to or involved in litigation. This is leading to a large number of redactions and rejections since almost anything can be declared subject to litigation. Is there an answer to this?

We are also getting denials as requests are declared voluminous, even if tied to specific dates, specific people, and specific events or conditions. What exactly is the measure of voluminous?

A: I will try to address the issues you raise in turn:

1. Access to agency emails.

Although the issue has never been definitively resolved by the courts, the California Court of Appeals has assumed, in a case decided on procedural rather than substantive grounds, that emails sent from a city’s offices, discussing city business would “undeniably” be public records. Tracy Press, Inc. v. Superior Court, 164 Cal. App. 4th 1290 (2008). And a trial court in San Jose recently found that emails pertaining to city business were public records even if they were storied on private, non-city accounts and sent from private email addresses. See Smith v. City of San Jose, Santa Clara Superior Court case no. 1-09-CV-150427 (March 19, 2013).

The Public Records Act contains no provision that would permit the city to restrict access to emails that it still possessed to 30 days, or for that matter, to impose a 30-day window on any public records request (with one possible exception not applicable here).

2. City Manager’s Role

You state in your inquiry that the city manager may be playing a role in determining which emails are released to you. As I believe you know, the Public Records Act contains numerous exemptions whereby certain categories of records need not be produced. Many of these are found in the Public Records Act itself, see Govt. Code section 6254-6254.17 and 62.75-6276.48. Others are found in other state and federal laws and incorporated into the Public Records Act. See Govt. Code section 6254(k). There is nothing in the Public Records Act that prevents the city manager from being among the persons who determines whether or not an exemption applies. Of course, the city, whether through the city manager or someone else, can only refuse to disclosure records that are in fact exempt, and must be able to defend each claim of exemption.

You also note that the city manager “broadcasts a report detailing our PRA requests in an email to all city council members.” In most situations, public records requests are themselves public records, although, sometimes an individual requester’s contact information may be redacted out of privacy concerns. There would thus be no legal bar to the distribution of your requests. However, this action might be evidence of a larger scheme to coordinate the unjustified denial of your requests or to otherwise retaliate against you.

3. City Attorney’s Role and Assertion of Litigation Exemption

As discussed above, there is nothing per se improper about the City Attorney being involved in the decision of whether or not to disclose certain records to you. Indeed, it is common for the city attorney to make public records disclosure decisions because such decisions do commonly require legal advice.

It seems from your inquiry that the city, on the advice of the City Attorney, is asserting that certain records are exempt from disclosure pursuant to section 6254(b) — records pertaining to pending litigation. This exemption does indeed permit the city to withhold records pertaining to pending litigation, but only while such litigation is pending. Once the litigation concludes — whether by settlement or otherwise, this exemption may no longer be claimed. Moreover, the exemption does not apply to records that pre-date the litigation. Nor does the exemption apply to anticipated litigation. See Register Div. of Freedom Newspapers, Inc. V. County of Orange, 158 Cal. App. 3d 893 (1994); County of Los Angeles v. Superior Court, 82 Cal. App. 4th 819 (2000).

4. Voluminous Records

Lastly, you write that your requests have been declared “voluminous.” You do not indicate whether or not the city is refusing to process them or whether this label has some other consequence.

The Public Records Act requires only that the request “reasonably describes an identifiable record or records.” Govt. Code section 6153(b). That such a request may apply to “voluminous” records has only one consequence: it is one of the justifications an agency might use to enlarge it statutory time limit for responding to your request an extra 14 days. See Govt. Code section 6253(c)(2). But it is no excuse to not process the request in the first instance. Moreover, pursuant to Govt. Code section 6253.1, the city is required to assist the requester in making a more focused and effective request, if necessary, and to “provide suggestions for overcoming any practical basis for denying access to the records or information sought.”

Bryan Cave 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.