Q: I am encountering a problem with regards to the California Public Records Act and state parks. I was seeking log sheets, invoices, work orders or receipts regarding a five-year project. I received the log sheets and a map of the work area but nothing more. No explanations or citations of the law were given to explain why those records were not provided to me. I called the state parks and was told those records did not exist. They would not answer any of my CPRA questions or offer any legal advice. I explained that a different agency told me the requested records do not exist, but that I did not understand how there would not be some contractual or financial records evidencing the work done. I believe the agency is unlawfully withholding documents from me.
A: Per the CPRA: When a member of the public requests to inspect a public record or obtain a copy of a public record, the public agency, in order to assist the member of the public make a focused and effective request that reasonably describes an identifiable record or records, shall do all of the following, to the extent reasonable under the circumstances:
(1) Assist 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.
(2) Describe the information technology and physical location in which the records exist.
(3) Provide suggestions for overcoming any practical basis for denying access to the records or information sought.
Cal. Gov. Code § 6253.1(a).
Therefore, if these records exist, the agency is required to help you identify responsive records and tell you where they are.
It may be possible that no records exist, but if they do, and the agency is improperly withholding them, 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 produce any records that exist and remind them that, should you be forced to pursue legal action, they will be responsible for paying your attorney’s fees.
Bryan Cave Leighton Paisner LLP is a 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.