A&A: How do I challenge the results of a public records act request?

Q:  I am working with a community organization that has filed public records requests with the School District asking for certain data pertaining to enrollment statistics for a subset of their total population. We have reason so believe that the information they have provided is inaccurate. One indicator, for example, is that they have provided wildly varying data depending upon the forum in which they are presenting the data. Is there a way to challenge what they have produced? I know we could not collect the data ourselves as it might expose us to exempt material (i.e. Individual student records), but I wonder if there is still yet a way for us to legally compel them to extract the data accurately and present it to us under the Public Records Act?

A: As a preliminary matter, it is worth noting that the Public Records Act only applies to records that already exist, and not the creation of new records.  That said, agencies are sometimes willing to create such records from existing records in order to avoid releasing the underlying records, which may be, as you note, themselves exempt from disclosure under one or more of the exceptions to the PRA.

However, the problem with this is that, as seems to be your situation, it is difficult to assess the accuracy of their data compilations without access to those underlying records.  You could submit another request to the school district for those underlying records, with the caveat that you will accept the records in redacted form (i.e., with student names and other identifying information that is exempt from disclosure taken out).  That way, you can analyze the data yourself.  The Act requires any reasonably segregable portion of a record be made available for inspection, after redacting portions that are exempted by law.  Gov’t Code § 6253(a).

As for other methods of enforcement, the Public Records Act does provide an enforcement mechanism if a petitioner is denied access to records.  See Cal. Gov’t Code § 6258.  However, the judicial remedy set forth in the Public Records Act is only available where the public entity is allegedly improperly withholding records; “[t]he CPRA’s judicial remedy is limited to a requestor’s action to determine whether a particular record or class of records must be disclosed.”  Cty. of Santa Clara v. Superior Court, 171 Cal. App. 4th 119, 130 (2009).

In Cty. of Santa Clara v. Superior Court, plaintiffs sued the County under Code of Civil Procedure § 526a, which permits:

“[a]n action to obtain a judgment, restraining and preventing any illegal expenditure of, waste of, or injury to, the estate, funds, or other property of a county, town, city or city and county of the state, may be maintained against any officer thereof, or any agent, or other person, acting in its behalf, either by a citizen resident therein, or by a corporation, who is assessed for and is liable to pay, or, within one year before the commencement of the action, has paid, a tax therein.”  Cal. Civ. Proc. Code § 526a.

Plaintiffs alleges that the County implemented policies which did not comply with state law regarding access to public records, and that the expenditure of money to implement and enforce the illegal policies constituted an illegal expenditure of public funds within the meaning of Code of Civil Procedure section 526a.  Id. at 124.  The Court of Appeal held the trial court did not err in overruling defendant’s demurrers to the complaint, finding:

“[t]he purpose of the CPRA is furthered, not obstructed, by citizen suits under Code of Civil Procedure section 526a to enforce the CPRA’s provisions.”  Id. at 130 (emphasis original).Therefore, while the CPRA itself may not provide a remedy for the inaccurate records, you may be able to enforce you right to accurate records through other statutes, including Code of Civil Procedure section 526a.

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. 

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