A&A: Can my access to public records be limited to “by appt. only”?

Q: I have been spending a lot of time inspecting the minutes of a local business improvement district. This week they changed their office hours from M-F 8:30-5:30 to be by appointment only, and this greatly limits my ability to look at documents in their office. Their staff is in the office during the old hours, but they claim that they’re not open except by appointment. Is this allowable under CPRA?

A: Under the California Public Records Act (PRA), records must be available for inspection during the regular office hours of the agency.  Gov’t Code § 6253(a) (“Public records are open to inspection at all times during the office hours of the state or local agency and every person has a right to inspect any public record, except as hereafter provided”).

Agencies may adopt reasonable procedures, but such procedures generally cannot limit the hours during which records are available.  Bruce v. Gregory, 65 Cal. 2d 666, 678 (1967) (the custodian of records may “formulate reasonable regulations necessary to protect the safety of the records . . . [or] to prevent inspection from interfering with the orderly function of his office and its employees”).

In Bruce v. Gregory, the California Supreme Court addressed the issue of restricting inspection of public records, finding that the:

“power to restrict inspection is no greater during the weeks of peak workload in [the agency’s] office (although occasions
for exercising it may arise more frequently during those periods).  We must assume that the [agency] will carry out [its] official duty, and that duty enables him to ‘deem it necessary’ to restrict inspection only when strictly necessary to prevent direct interference with the operations of [its] office.”  Bruce v. Gregory, 65 Cal. 2d 666, 678 (1967).

The Court articulated some considerations that might trump a request for immediate access to inspect public records, including:

(1) the records are needed by agency staff,

(2) other members of the public occupy the space set aside for public record inspections,

(3) the agency has a valid basis to fear damage or theft of the records and immediate supervision is not possible, or

(4) an individual is monopolizing the records to the detriment of either the agency that needs to use the records or other members of the public who wish to inspect the records. Id.  Rules requiring reasonable supervision during inspection of public records have found favor with the courts. Id. at 675-76.

In light of these principles, you may want to ask the agency its reasons for changing hours.  Given that staff continues working during regular business hours, it may be difficult to justify how this new restriction is strictly necessary to prevent direct interference with the operations of the agency.  You may also want to remind the agency of its obligation under Gov’t Code § 6253(a) to make public records available for inspection during the regular office hours of the agency.

Alternatively, you might consider requesting the records from the agency in writing. See Govt. Code § 6252(e).  If you make a written request (a sample letter is available here), the agency must determine whether the records are subject to the PRA within 10 days of your request, and “promptly notify” you, in writing, if it will make the records available.  Gov’t Code § 6253(c).

If not, the agency must specify why it believes the records are exempt from disclosure.  Id.  If the agency cites an exemption, it will need to explain, in writing, which exemption applies and how. See id.  Although a written request will not give you the same presumptive immediate access as you get when you visit the agency in person, and would require you to pay the costs to make any copies of records, a written request will at least require the agency to respond to you in writing, and give any reasons why it has denied your request.

Bryan Cave LLP is general counsel for the First Amendment Coalition (FAC) 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.