Q: I recently tried to access email communications between a current elected city official and a former elected city official over a local project that’s being funded by public funds. The city responded to my requests, but only with publicly accessible information, essentially amounting to a refusal.
Reasons included: the information in these emails was designated confidential and proprietary by a third party, publishing the emails could result in copyright infringement, and the emails include pre-decisional documents like drafts.
To what extent are email exchanges between political officials and third parties subject to California Public Records Act requests, considering they “relate[s] to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency”?
A: It sounds like city officials are attempting to skirt the Public Records Act by claiming that a third party’s interests somehow trumps the act. However, I don’t believe this is the case. With respect to the first reason – that the emails have been designated “confidential” by a third party – the city does not seem to have specified which exemption this falls under, and I cannot think of one that fits. While it is possible that, for example, a trade secret may be exempt from disclosure under various PRA provisions, it does not seem that this is the type of information that is at issue here, as I doubt the third party sent such trade secrets, which have high value to companies, in an email to a public official.
As for the second reason – that the emails contain copyrighted material – I also cannot think of a valid exemption that would apply. While there are exemptions for a very small universe of copyrighted material that the city might have in its possession from third parties, such as architectural plans, I don’t think the text of an email would qualify as material that the third party could control with a copyright claim.
As for the third reason – that the materials are pre-decisional, and therefore exempt from disclosure – this requires a public-interest balancing test that must weigh very heavily on the side of non-disclosure in order to justify withholding the records. While the PRA exempts from disclosure preliminary drafts, notes or memos not normally retained in the ordinary course of business (Gov’t Code section 6254(a)), this exemption requires meeting three conditions: . (1) it applies only to documents that are “pre-decisional,” namely records that contribute to reaching some administrative or executive determination; (2) it applies only to documents not normally kept on file; and (3) it only applies if the public interest in withholding the records clearly outweigh the public interest in disclosure. Citizens for A Better Env’t v. Dep’t of Food & Agric., 171 Cal. App. 3d 704, 714 (1985). “If the records sought pertain to the conduct of the people’s business there is a public interest in disclosure. The weight of that interest is proportionate to the gravity of the governmental tasks sought to be illuminated and the directness with which the disclosure will serve to illuminate.” Id. at 715. As you can see, this is a high standard that the city would have to meet in determining these emails are exempt under this provision.
You might want to write to the city and ask that it explain its justification for withholding the records under the three cited exemptions. You could let the city know that you do not believe it is justified in withholding the emails for some of the reasons cited above.
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.