Q: I recently submitted a public records request to the county. My request was denied on two objections: The first was that it wasn’t specific enough. The second reason was this:
“The County further objects that your request is unduly burdensome. Responsive documents will likely include records that are exempt from disclosure, such as records that reveal the privileged and confidential deliberative process and attorney-client privileged communications, as well as other confidential communications. It would be necessary to review each and every document to determine whether disclosure is prohibited by specific laws or prohibited as against sound public policy. As a result, the County objects to producing the records sought based upon Government Code Sections 6254(a) and (k), and possibly additional subsections, and Government Code Section 6255. Additional privileges may apply based on a review of the records.”
Is their objection justified?
A: California’s Public Records Act (“PRA”) provides that:
“[p]ublic 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. Any reasonably segregable portion of a record shall be available for inspection by any person requesting the record after deletion of the portions that are exempted by law.” Gov’t Code § 6253(a).
And:
“[e]xcept 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 to any person upon payment of fees covering direct costs of duplication, or a statutory fee if applicable.” Gov’t Code § 6253(b).
Generally speaking, this means that if the agency can reasonably understand from a request what particular records are sought, those records should be disclosed unless the PRA or other law exempts them from disclosure. If part of a record is legitimately exempt (because it contains attorney-client privileged information, for example) but the rest of the record is not exempt, then the agency should redact the exempt portion of the record and disclose the redacted version.
An agency must “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.” Gov’t Code § 6255(a).
It sounds like the agency is saying that the request (a) did not “reasonably describe” identifiable records and (b) that it would be too burdensome for the agency to go through the requested records to figure out what material is exempt from disclosure.
There might be some situations where an agency could justify not disclosing records under the second part of Gov’t Code § 6255(a)
on the grounds that the public interest in avoiding the burden of responding outweighs the public interest served by disclosing the record. But the agency is supposed to “demonstrate[]” that this would be true based “on the facts of the particular case.” Saying that requested records might contain exempt material that could require a lot of work to go through, without providing any specific support for that position, would not necessarily be enough to satisfy the agency’s obligations
under the PRA.
One option for responding would be to remind the agency of Gov’t Code § 6253.1(a), which provides that “[w]hen a member of the public requests to inspect a public record or obtain a copy of a public record, the public agency, in order to assist the member of the public make a focused and effective request that reasonably describes an identifiable record or records, shall do all of the following, to the extent reasonable
under the circumstances:
- (1) Assist the member of the public to identify records and information that are responsive to the request or to the purpose of the request, if stated.
- (2) Describe the information technology and physical location in which the records exist.
- (3) Provide suggestions for overcoming any practical basis for denying access to the records or information sought.”
- The agency should make “a reasonable effort to elicit additional clarifying information from the requester that will help identify the record or records.” Gov’t Code § 6253.1(b).
The ultimate recourse to enforce the PRA is a lawsuit. Note that the PRA provides that “[t]he court shall award court costs and reasonable attorney fees to the plaintiff should the plaintiff prevail in litigation [to enforce the PRA],” but “[i]f the court finds that the plaintiff’s case is clearly frivolous, it shall award court costs and reasonable attorney fees to the public agency.” Gov’t Code § 6259(d).
You can find more information about the California Public Records Act here.
Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition 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.