A&A: PRA Response Says Records Were Not Found, But I Know They Exist. How to respond?

Q: I recently made a PRA for letters and documents between a university and a staff member. I know the documents likely exist because they are referenced in a published news story by the campus paper that the university has not refuted.

Despite this, I received a response letter stating that after a search, no responsive records were found. I am writing a response letter and would like to know if there are any relevant sections of the PRA I can/should cite to motivate them to get me the responsive documents.

A: It sounds like you are doing the right thing by writing back to the university.  I assume you will point out that there is evidence that this correspondence does exist, given past coverage in the campus newspaper.

I can think of a couple of other points you might want to include in your letter.  First, you might want to remind the university that, under the Public Records Act, it is required to “[a]ssist 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,” as well as “[d]escribe the information technology and physical location in which the records exist” and “[p]rovide suggestions for overcoming any practical basis for denying access to the records or information sought.”  Gov’t Code § 6253.1(a).

In other words, the university here is obligated to assist you in making a “focused and effective request that reasonably describes an identifiable record or records,” id, and therefore must work with you to overcome any obstacles that are impeding your access to these records.  In this vein, I would ask the university to identify exactly where it searched for the records and what search terms it used.  It may be they just weren’t looking in the right place.

Second, given there is evidence that this correspondence does exist, and the campus newspaper has copies of this correspondence, you might want to let the university know that under Government Code § 6254.5, “if a state or local agency discloses a public record that is otherwise exempt from this chapter, to a member of the public, this disclosure shall constitute a waiver of the exemptions specified in Section 6254 or 6254.7, or other similar provisions of law.”  In other words, if these records were provided to the campus newspaper by the university, then they should also be provided to you without any claim that they are exempt from disclosure.

Finally, you could also remind the university that should you be forced to enforce your rights under the Public Records Act in court, the university
would be required to pay your attorneys’ fees.  Gov’t Code § 6259(d).

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.

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