A&A: CA Medical Board non-responsive to PRA request

Q: I am a volunteer patient safety advocate in California. I have been trying to get a series of document from the Medical Board of California (and their parent the Department of Consumer Affairs) through public records requests.

I think I’ve only received one document, and it wasn’t the document I requested, and the document they sent had whole sections missing and a number of individual pages (there were a few pages marked with redactions).

Their legal council just keeps quoting 6254(f) as the reason they’re not providing some of them. I don’t feel like that fulfills what the law says they have to provide. 6254(f) is not a reason, it’s just the code section that says that certain exemptions exist.

The law seems to say that when one of those exemptions exists, they have to provide a legitimate reason, in writing, for denying the document. They also refuse to turn things over when they could be redacting portions of a document and sending the rest.

They know that most people won’t get any kind of legal help with this and likely couldn’t afford the legal help, so they don’t care.

They are coming up for a “Sunset Review” early next year and we are trying to prepare for that by getting some of these documents that prove their underhandedness.

I tried to get a software manual from the DCA and was flat out told they weren’t sending it….no explanation of why, just that they weren’t.

The other thing they do is threaten you with charges for preparing these documents, when it’s very likely that an online pdf version of the document already exists.

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A: Under the Public Records Act (PRA), an agency must respond to a PRA request, typically within 10 days, to let the person know whether it has records in its possession that are responsive to the request.

If claiming an exemption, the agency must not only specify the exemption but also explain how it applies.  Gov’t Code § 6253(c).

Based on your email, it sounds like the Medical Board’s response is deficient because it failed to explain how section 6254(f) applies.  I would suggest you write back to the Board requesting an explanation and reminding it of this obligation.  Gov’t Code § 6253(c).

You might also remind it that it owes a duty to assist you in making a focused and effective request.  Gov’t Code § 6253.1.

In addition, you might note that the “investigatory exemption” in section 6254(f), while broad, would only apply here if the Medical Board is considered a state or local agency for “correctional, law enforcement, or licensing purposes.”  Gov’t Code § 6254(f).

And even if it is, the exemption only covers records of complaints, investigative records and security files (in which case the Board would need to explain that to you in writing).  Id.

Where an agency does not comply with the PRA in responding to a particular request, the ultimate recourse for enforcement of the Act is to file a lawsuit against the agency pursuant to Government Code section 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 (a type of order directing the public agency to take a specified action).

If compelled to bring such a lawsuit, Government Code section 6259(d) mandates that attorneys’ fees be awarded to the successful plaintiff.  If you find yourself seeking an attorney to assist you in this matter, you might find one using the attorney referral service of your local bar association (Los Angeles Bar County Association).

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.