A&A: Government agency refusal of email records

Q: I was refused access to government emails and correspondence because the records were determined to be exempt from disclosure under the Public Records Act (recognized under the public interest balancing exemption provided by Government Code section 6255). Does this also refuse my right to access the time and date of the email correspondence?

A: Under the California Public Records Act (“PRA”), 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).

The cited exemption, the deliberative process privilege, is a court-created exemption that has its roots in the PRA’s broad, yet undefined, catch-all exemption.  This privilege may allow nondisclosure of records revealing the deliberations of agency officials, or information relied upon by officials in making decisions that they would not otherwise receive if the information was routinely disclosed.  As with any exemption that is couched in the catch-all exemption, found at Government Code § 6255, a record may be withheld if, on the facts of the particular case, the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.  Importantly, the “public interests” in disclosure and non-disclosure are weighed against each other, and not the agency’s interests, and there must be a “clear” overbalance in the relative public interests.  Furthermore, the § 6255 balancing test must be considered in light of the particular records at issue.

When responding to your PRA Request, the government agency is required to let you know whether it has responsive records in its possession.  The agency should also cite any exemptions it is claiming and specifically describe how those exemptions apply to the records that you seek.  Gov’t Code § 6253(c).  Both the PRA and court decisions interpreting the PRA require the law and its exemptions to be narrowly construed in favor of disclosure.  If private information can be redacted, it should be redacted and the remainder of the documents disclosed.  Indeed, the general rule is that the exempt material may be withheld but the remainder of the record must be disclosed.  Gov’t Code § 6253(a).

Given the agency’s duty under Government Code § 6253(c) to explain how a particular exemption applies to government records – including why the public interest is better served by withholding the documents under § 6255 – I would suggest you write back to the agency reminding it of its duties under the Act, and reiterating your request for certain information relating to the communications.  Once you have this information, you can better assess how to respond.

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.