Q: My County’s fire service is attempting to take over the emergency ambulance service contracted by the County (currently outsourced to private ambulance firms). I submitted a CPRA for the contract with the fire service consultant.
The cities subsequently denied the contract or stated they were in contract negotiations and would not release. I have been informed the cities are using the County Fire Chief’s Association to handle the consultant contract. Can I submit a CPRA of the County Fire Chief’s Association?
A: Under the California Public Records Act, public records are presumed to be open to the public and must be disclosed unless a specific provision of the Act or other law exempts them from disclosure. Public records include “any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.” Gov’t Code § 6252(e).
It would seem that the County Fire Chiefs Association is subject to the PRA, and therefore you may request the information you seek by way of a public records request if the Association prepared, owned, used or retained any information regarding the county ambulance service contract.
Unfortunately, the fact that this contract is still under negotiation may mean that drafts of the contract are not subject to disclosure, although if the agency is claiming that one of the PRA’s exemptions allows for this, it must cite the exemption and exactly how it applies. See Gov’t Code § 6253(c).
A contract under negotiation may fit into the “draft” exemption—preliminary drafts, notes or memos not normally retained in the ordinary course of business are exempt from disclosure under the PRA, provided the public interest in withholding them outweighs the public interest in disclosure. Gov’t Code § 6254(a).
The court in Citizens for A Better Env’t v. Dep’t of Food & Agric., 171 Cal. App. 3d 704 (1985) created a three-step process to determine whether the exemption applies:
(1) it applies only to documents that are “pre-decisional,” namely records that contribute to reaching some administrative or executive determination;
(2) it applies only to documents not normally kept on file; and
(3) it only applies if the public interest in withholding the records clearly outweigh the public interest in disclosure. Id. at 714. “If the records sought pertain to the conduct of the people’s business there is a public interest in disclosure. The weight of that interest is proportionate to the gravity of the governmental tasks sought to be illuminated and the directness with which the disclosure will serve to illuminate.” Id. at 715.
In the usual case the existence and weight of the “public interest in disclosure” is a conclusion derived from the nature of the information in issue. (See Coldwell v. Bd. of Pub. Works of City & Cty. of San Francisco, 187 Cal. 510, 520 (1921), preliminary specifications and estimates for water project is a public matter in which the public has an interest.)
Additionally, assuming a document is pre-decisional and not customarily retained, the exemption may only apply to any portion of its contents that amounts to a “recommendatory opinion.” That is, statements as to what can or should be done may be withheld under the exemption, but other portions that consist of factual reporting or observations have to be disclosed. Citizens for A Better Env’t, 171 Cal. App. 3d at 717.
Here, it is difficult to know if the contract is pre-decisional (perhaps all decisions have been made), and if drafts of such contracts are customarily retained by the Association. When weighing the interest in disclosure against the countervailing interest in the exemption, the factual matters in the preliminary documents (i.e., the parties to the contract) appear to concern the public interest in emergency services. (See Citizens for A Better Env’t, 171 Cal. App. 3d at 715, “the factual matters in the preliminary documents concern the conduct of county officials in enforcing the pesticide use laws and the conduct of state officials in the investigation and supervision of that task. It is simply incontestable that these are grave public matters in which the public has a substantial interest in disclosure. The records sought to be disclosed strongly illuminate the conduct of pesticide use law enforcement. We must weigh this “public interest in disclosure” against the asserted countervailing statutory interest in nondisclosure”).
You may want to submit a PRA request to the County Fire Chiefs Association, seeking the contract information. If it claims the contract is subject to the draft exemption, you may want to cite Citizens for a Better Environment in support of your argument that the exemption does not apply. You can find more information about the Public Records Act, including a sample request letter, at the First Amendment Coalition web site here.
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.