Q: I called and reported a radiation exam concern last year to my state’s public health department. After months of trying to obtain the results of the inspection report, I was told I had to submit my request online which I then did. The report lacked specificity and appeared to be lacking all of the information.
I then requested public records for a period of 5 years on the machine used. I received a statement stating my request was being delayed and I might not receive all of the records. After complaining and resubmitting my request, I received some of the records but not all. I was told an administrator must first inspect the public records and then decide which records are given.
A: After you make a written request under the California Public Records Act (“PRA”), an agency must determine whether the requested records are disclosable within 10 days of your request (or 14 in certain circumstances), and “promptly notify” you, in writing, if it will make the records available, or specifically state the exemption it is claiming and how it applies to the requested records. Gov’t Code § 6253(c).
The agency has a duty to assist you in making a focused and effective request that reasonably describes identifiable records, and provide suggestions for overcoming any practical basis for denying access to the records or information sought. Gov’t Code § 6253.1.
While an agency must state the estimated date and time when disclosable records will be made available (Gov’t Code § 6253(c)), the CPRA does not provide a required timeline by which an agency must disclose requested documents, and “[t]he Act provides no remedy for failure to timely comply with a request for records.” Rogers v. Superior Court, 19 Cal. App. 4th 469, 483 (1993), as modified (Oct. 13, 1993), (emphasis added).
If the agency is delaying producing the responsive documents, unfortunately there isn’t a correct answer for when the documents should be produced. The Public Records Act, at Government Code section 6253(c), provides that “each agency, upon a request for a copy of records, shall, within 10 days from receipt of the request, determine whether the request, in whole or in part, seeks copies of disclosable public records in the possess of the agency and shall promptly notify the person making the request of the determination and the reasons therefor.”
The position of the Attorney General, and thus most, if not all, governmental agencies, is that this requires them only to inform the requester within 10 days of the existence of records; 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.
The longer a waiting period, the more it does seem to be less than a “prompt” provision of records. A court would likely require the agency to justify that delay as being necessary in some way. For example, in one case, Marken v. Santa Monica-Malibu Unified Schl. Dist., 202 Cal. App. 4th 1250, 1268 n.14 (2012), the court of appeal noted that it had “serious questions” about whether a delay of one month, following the school district’s determination that the records requested were subject to disclosure, was warranted.
On the other hand, the court in Rogers v. Superior Court, 19 Cal. App. 4th 469, 483 (1993), found that where the “City had disclosed all records it had been required to produce,” and, with respect to “most” of those records, had produced them within two months of the petitioner’s informal request and two months of his formal request. With respect to the remainder – which the city initially did not know were in its possession, but were “promptly disclosed them when they were available” – the city had not violated the Public Records Act.
I suggest writing a follow-up letter, reminding the agency of its obligations under the PRA to provide you the estimated date and time when disclosable records will be made available and provide suggestions for overcoming any practical basis for denying such records.
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.