Q: I’m working on a book on the discovery of AIDS. The discoverer was denied support for his promotion and tenure by his department’s promotion and tenure committee. I wish to obtain all documents related to this decision.
1. Can I obtain them using FOIA?
2. Do I address the FOIA to the University’s department of medicine? the Regents of the CA university system? Or whom? Thanks.
How long should I wait for a response. And what recourse do I have if I don’t receive a response?
A: UCLA is subject to California’s open records law, the Public Records Act, Government Code § 6250 et seq.
Under the Act, records that are “prepared, owned, used, or retained” by a public agency are presumptively subject to disclosure, unless some exemption applies. Gov’t Code § 6252(e). This would include, presumptively, records related to a professor’s tenure and/or promotion, unless there is some statute, either in the PRA itself, or incorporated into the PRA by reference (via Gov’t Code § 6254(k)), that explicitly excludes such records from public disclosure.
I am not aware of any statute that explicitly exempts such documents from disclosure under the Act. If there is a specific exemption, the university will have to cite that exemption in its response to your request, and explain how it applies to the records that you seek.
The university may, as well, invoke the “personnel” exemption provided for in the Act itself, which exempts from disclosure “[p]ersonnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy.” Gov’t Code § 6254(c).
However, this exemption, like all exemptions under the Act, is to be construed narrowly in favor of disclosure, and is only intended to protect truly intimate details of personal and family life, as opposed to official business judgments and relationships. See, e.g., Bakersfield City School Dist. v. Sup. Ct., 118 Cal. App. 4th 1041, 1045 (2004); Braun v. City of Taft, 154 Cal. App. 3d 332, 343-44 (1984).
If the agency does not invoke this exemption, there are arguments you can make in response – backed up by case law – as to why this exemption does not apply to these specific records.
As for the mechanics of sending a request to the university for these records, there is nothing in the Public Records Act that requires the request to go to a certain individual or department within a certain agency. Some agencies have designated employees who are responsible for reviewing and responding to PRA requests, but even in these situations, you are not required to submit your request to that particular individual.
In the situation you describe, my recommendation would be to submit your request to the specific department – perhaps directly to the department head – within the UCLA School of Medicine that you believe holds the records you are seeking. Your request may get kicked up the chain, but this does not relieve the university from complying with the Act’s requirements in responding to written requests, which include responding to the request within 10 days of receipt, and in that response, informing you whether the university has records that are responsive to your request, and whether the university is claiming any of the records requested are exempt from disclosure (and explaining which exemption it is claiming and how that applies to the specific records). Gov’t Code § 6253(c).
The agency should then make copies of the records available to you “promptly.” In some cases involving unusual circumstances, but only upon notifying the requesting party, an additional 14 days to respond may be permitted under the Act. Id.
You can find more information about the mechanics of the Public Records Act, including a sample request, letter, can be found in the FAC’s website here.
As to your questions concerning how long to wait for a response. Despite the strict requirements under the PRA to respond to a written inquiry within 10 working days. The agency in some “unusual circumstances” may extend this by 14 days, though they have to let you know this and explain why (see Government Code 6253(c)).
In situations like these, I typically suggest sending a short follow-up reminding the agency that it is overdue in responding to you (and citing the code section that lays out the response time, Government Code 6253(c)), and perhaps also making a friendly offer to work with the agency to focus your request, lest they have any questions about exactly what you are after (Government Code 6253.1 requires the agency to assist the public in making focused and effective requests that reasonably describe identifiable records).
If you are forced to bring a lawsuit to enforce your rights under the PRA, the agency would have to pay your legal fees should you prevail in court. This is something that you might want to mention in future correspondence if the university is resistant to responding to your request and/or providing you with any records (though maybe save this for later, given right now you want to get the records, and the mention of this may put the university on guard). So, bottom line, I would suggest sending the department chair a short and friendly follow up asking for a written response to your request ASAP.