Q: I have had a long-running battle with the county’s Community Development Agency on them altering Tax Assessor real estate records in order to approve an out-of-proportion large new house construction. CDA rules dictate new houses have to be average to the neighborhood. What CDA did was inflate the neighborhood average size, the part that is taxed, to make their project appear average. It took my California Public Records Act requests to expose some of their doing, but they are now refusing to provide any more. I have submitted requests to the County Administrator and Board of Supervisors. The county legal office states they never received the request. It was submitted in March. Counsel for the county advised I should resend it to him. I had attempted to deliver a copy of the CPRA request on in March, but it was rejected by being told I had to go through the Board of Supervisors first. That is a Catch-22. Also, what information I do get is inadequate and incomplete. I have to keep on requesting for original information. They are stalling and hoping I go away. Can you help?
A: I am sorry to hear of the apparent stonewalling of your CPRA requests. As you know, the CPRA requires agencies to respond to written requests for records, and sets deadlines for public agencies to respond to records requests. Cal. Gov. Code § 6253(c). Agencies are required to respond to written requests for records within 10 calendar days of receipt of the request, and may extend that deadline by an additional 14 days where there are “unusual circumstances.” Though public agencies will often miss these deadlines, a refusal to respond at all violates the CPRA.
Additionally, unless the record is “exempt from disclosure by express provisions of law,” you are entitled to see an “exact copy” of records as they are maintained by the agency unless it is “impracticable to do so.” Cal. Gov. Code § 6253(b). As such, unless the agency can cite an applicable exemption or explain to you why it would impracticable to show you the original information, it must provide you with an exact copy of the information in its possession. Note that if the agency claims an exemption, it must specifically cite an exemption and explain why that exemption applies. Cal. Gov. Code § 6253(c) (agency shall “promptly notify the person making the request of the determination and the reasons therefor.”).
If you believe an agency is improperly withholding records, your recourse is to file a lawsuit. A lawsuit under the CPRA is initiated by submitting a verified petition to a court asking it to issue a writ of mandate directing the agency to release the requested records. Cal. Gov. Code § 6258 provides that “Any person may institute proceedings for injunctive or declarative relief or writ of mandate in any court of competent jurisdiction to enforce his or her right to inspect or to receive a copy of any public record or class of public records under this chapter.” Usually a judge will consider the legal briefs and evidence submitted by both parties before ruling on whether the records were properly or improperly withheld. You may ask the judge to examine the records in private during the course of the litigation. Cal. Gov. Code § 6259(a).
If you are successful in proving a violation of the public records laws, the court will order the agency to release the records, and the agency will be liable for your court costs and attorney’s fees. Cal. Gov. Code § 6259(b), (d). However, if the court finds your suit is “clearly frivolous,” you will be responsible for the agency’s court costs and reasonable attorney’s fees in defending the lawsuit. Cal. Gov. Code § 6259(d).
Before engaging in litigation, you may wish to write back to agencies to reiterate that they are legally obligated to respond to your CPRA requests and remind them that, should you be forced to pursue legal action, they will be responsible for paying your attorney’s fees.
As an alternative, note that the CPRA requires that records be available for inspection during the regular business hours of the agency. Cal. Gov. Code § 6253(a). You may be able to obtain faster access by going to the agency in person and asking to inspect the records there.
More information about the CPRA can be found at the First Amendment Coalition’s website here.
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.