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A&A: Who Bears the Cost of Previously Public Documents Now Held By A Third Party?

Q: I have an outstanding PRA request to the county regarding ongoing litigation. The applicant of the project at issue in litigation changed in 2011. The County asserts they do not have the documents from the the previous applicant but that they can be purchased from a third party consulting firm for $2,000. My question is: who bears the cost to obtain the documents when the agency has lost or is missing the documents?

A: The Public Records Act does not address agencies’ obligations to retain records.  It might be that the records were not retained pursuant to the county’s legitimate retention policies.  Even if the records were not subject to disposal based on a county retention policy and instead were simply lost, it is not clear that the county would have the obligation to restore the integrity of its files by obtaining a copy of the record from
a third party.

However, if an agency intentionally gave custody of a public record to a third party so that the third party would control release of that record, that should run afoul of Gov’t Code § 6253.3, which provides that “[a] state or local agency may not allow another party to control the disclosure of information that is otherwise subject to disclosure pursuant to this chapter.”

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.  No attorney-client relationship has been formed by way of this response.

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