Q: I submitted a Public Records Act request to the metro Fire Department on an employee misconduct and abuse of power case which was captured on video.
It was submitted on Oct 17, 2017. The department did not respond by Oct 27 as dictated by the 6253(c). On Nov 6, 2017. I contacted the department and they responded that the clerk who received the request on Oct 17th told me it would take longer.
I responded in writing that she never stated that but more, that the code does not allow a response verbally.
The they responded in writing on Nov 6, 2017 stating they now were taking the extension but failed to include a “date which a determination is expected to be dispatched” within the 14-day extension time.
I responded in writing pointing out the first four violations of section 6253. The department responded on Nov 8th by email with the following: “Per California Government Code 6253 the Fire Department is responding and providing an estimated date and time when disclosable document(s) will be made available. November 30, 2018.8:00 am. We will be in contact with further instructions and information as we receive it.”
We believe this response is in violation of the Public Records Act on these four points now:
1. 6253 (b) “Except with respect to public records exempt from disclosure by express provisions of law, each state or local agency, upon a request for a copy of records that reasonably describes an identifiable record or records, shall make the records promptly available…” The LAFD response that they MIGHT disclose something in over a year would violate promptly.
2. 6253 (c) states a determination on the whether any of the 7 documents requested are disclosable or not has to delivered within the 10 day initial or 14 day extension time limit. The extension period ended on Nov 10th and we have not received any determination on any of the 7 documents requested. The response on this from the LAFD is above.
3. 6253 (d) “Nothing in this chapter shall be construed to permit an agency to delay or obstruct the inspection or copying of public records. The notification of denial of any request for records required by Section 6255 shall set forth the names and titles or positions of each person responsible for the denial.”
4. 6255 (a) “The agency shall justify withholding any record by demonstrating that the record in question is exempt under express provisions of this chapter or that 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.(b) A response to a written request for inspection or copies of public records that includes a determination that the request is denied, in whole or in part, shall be in writing.”
We have received nothing other than the above statement from thedepartment. The captain who wrote the statement above told me on the phone the delay on these documents will be “indefinite.”
The department is stonewalling on this and we believe is in major violation of the Public Records Act. We understand the only remedy at this point is a lawsuit and we intend to do that. Any opinion on whether our reasoning is correct that the Fire Department in is violation of the CPRA would be appreciated.
A: Although I can’t weigh in on the viability of a potential legal action, I would observe that you seem to have identified the relevant statutory provisions of the Public Records Act.
To the extent it is relevant to your situation, my understanding is that the position of the Attorney General, and thus most, if not all, governmental agencies, is that Government Code section 6253(c) requires agencies only to inform the requester within
10 days of the existence of records and that copies need only be provided “promptly.”
Many open records advocates maintain that the law requires that the copies themselves be provided within 10 days. I am not aware of any published court decision that has either accepted or rejected either interpretation of the statute.
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