A&A: Is There A ‘Duty of Good Faith’ For Agencies Timely Response to CPRA Requests?

Q: Our office has several has several Public Records requests out at this time. I have been asked to find out if there is any case law or information in regards to a Duty of Good Faith in a public agency responding to a CPRA. Particularly in the context of a genuine public need for the information, such as for an upcoming election.

Also, is there any case law regarding the agency saying they need more time, such as delaying to not get the information in a timely manner.

Lastly is there any case law or documentation in regards to a rolling production of documents? We have experienced with a State Agency where they have said flat out, they don’t do them. We would like to know if agencies are allowed, in multi-part requests, to not disclose any of the documents before they have gotten them all together.

A: I am not aware of any Public Records Act case law that states there is a duty of good faith that must be undertaken by the agencies in responding to public records requests.  That said, there are numerous statutory obligations that agencies are required to follow in responding to PRA requests, and failure to properly respond could subject an agency to a lawsuit.

Thus, to the extent the agency here is dragging its feet, you might want to remind it of its statutory obligation to, among other things, respond to requests within the time limits set forth in Government Code § 6253(c); refrain from “obstruct[ing] the inspection or copying of public records” (Gov’t Code § 6253(d)); and “assist the member of the public [to] make a focused and effective request that reasonably describes an identifiable record or records” (Gov’t Code § 6253.1(a)).

With respect to when an agency must make copies of requested records available, there unfortunately is not prescribed time limit for this contained in the Act or in case law.  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.

As for rolling productions, I am not aware of any case law that says this is required when possible.  That said, in reminding the agency of its statutory duties in responding to your request, you could point out that one way it could fulfill its duties is to provide you with copies of the records in a timely manner would be to turn over documents on a rolling basis.

Bryan Cave Leighton Paisner 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.

Your contributions make our work possible.