Q: Suppose I make a request for records from a public agency, but their records retention policy allows the records to be destroyed before the agency produces them. Does the Public Records Act require a suspension of the destruction of records if a request has been made?
A: Unfortunately, the Public Records Act is not a record retention act, and is therefore silent on that front.
There are several other statutes and ordinances that govern various agencies duty to retain records (some of which can be found here). I couldn’t find any specific provision dealing with a “hold” on records after a request, however, after receiving a records request an agency must determine if the records are disclosable within 10 days, and “promptly notify” the requester if it will make the records available, or specifically state the reasons the records are exempt from disclosure. Gov’t Code § 6253(c).
It would seem that by deleting any records that were specifically requested by a member of the public, the agency could be potentially violating both the spirit and the letter of the PRA. Additionally, “[w]hen a member of the public requests…a copy of a public record, the public agency…shall…
(1) Assist the member of the public to identify records and information that are responsive to the request or to the purpose of the request, if stated;
(2) Describe the information technology and physical location in which the records exist; and
(3) Provide suggestions for overcoming any practical basis for denying access to the records or information sought.” Gov’t Code § 6253.1(a).
It would seem that under this provision, the agency would have to let you know not only about the existence of the records, but also about the retention policy, so that you and the agency could work together to capture those records that are responsive to your request before they are deleted.
Furthermore, it seems that with today’s technology, nothing is completely deleted forever, and therefore it would seem that even if a responsive record was swooped up in a scheduled deletion cycle, the agency should be able to extract that record from the equivalent of its trash bin.
You can learn more about the PRA, and find sample letters 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.