Q: My friend and I first requested financial records for two affordable housing projects receiving government subsidies on August 19. The City responded on August 27 informing us that due to staff vacancies they could not fulfill our request, and that they would provide a status update by October 1.
On September 4, we responded to the City via email, requesting that we be given access to the subject records or copies of these records by September 9, which is exactly 14 days from the date of the City’s notice. As of today, September 11, we have not received a response from the City.
We also submitted a CPRA request for another affordable housing project receiving government subsidies on August 31. As of September 11, the City had not responded. The 10 day response period has expired.
We are requesting advise or legal assistance to help us attain access to the subject records. We are certain that a detailed review of the financial and accounting records for the three subject affordable housing projects will reveal a significant amount of waste of government funds and potentially, fraud.
A: I am sorry to hear the City has been unresponsive to your records request. The PRA sets forth certain clear requirements
with respect to timing of disclosure, and agencies should not be permitted to simply disregard them.
When a record is subject to disclosure, the PRA requires agencies to make it “promptly available” on payment of copying fees. Gov’t Code § 6253(b).
The PRA also says that “upon a request for a copy of records, [the agency] 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).
“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.” Id.
Government Code section 6253(d) requires, “Nothing in this chapter shall be construed to permit an agency to delay or obstruct the inspection or copying of public records.”
While staffing problems aren’t an exception to the PRA, at least one court seems to have accepted them as an excuse for a slight delay
with respect to the production of records.
Motorola Commc’n & Electronics, Inc. v. Dep’t of Gen. Servs., 55 Cal. App. 4th 1340, 1345 (1997)(denying plaintiff’s motion for attorneys’ fees, finding production of additional records by agency was not motivated by initiation of plaintiff’s litigation under the PRA, and noting that initial request to the agency came at an “inopportune time” when lead counsel for the agency was going on vacation and the agency’s delay in any event was “not by much”).
That said, this case should not be taken to mean that anytime an agency is understaffed, a PRA request can be delayed.
You might want to send a follow-up letter to the City reminding it of the time limits within which it is required to respond to your request, and note that understaffing is not a legitimate reason to delay responding.
You might also let City officials know you are willing to work with them to ensure they can focus on finding the records you are seeking. The City has a duty to assist you in making a focused and effective request that reasonably describes identifiable records, and to provide suggestions for overcoming any practical basis for denying access to the records or information sought. Gov’t Code § 6253.1(3).
You might also want to remind the City that attorneys’ fees are available should you be required to bring a lawsuit to enforce your rights under the Act. If an agency refuses to provide records under the Act, the ultimate recourse is filing a lawsuit under Gov’t Code § 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. Attorneys’ fees are available to a plaintiff who prevails in litigation filed pursuant to the Act, Gov’t Code § 6259(d) — a fact that you may want to draw the City’s attention to in your next correspondence. (A plaintiff prevails if the litigation motivated the defendant to release the records. Motorola, 55 Cal. App. 4th at 1344.)
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.