What Records Or Documents Are Public In A City Purchase Of Private Property?

Q: What records are public when a city purchases private property? Can the public receive the preliminary title report? Or the Escrow Settlement Statement?

A: Under the California Public Records Act (“CPRA”), public records — which include “any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics,” Cal. Gov. Code § 6252(e) — are presumed to be open to the public and must be disclosed unless a specific provision of the Act or other law exempts them from disclosure.

The CPRA contains numerous exemptions.  One that might be relevant in this situation is the exemption in § 6254(h) for “The contents of real estate appraisals or engineering or feasibility estimates and evaluations made for or by the state or local agency relative to the acquisition of property, or to prospective public supply and construction contracts, until all of the property has been acquired or all of the contract agreement obtained.”  Therefore, real estate appraisals and records of engineering or feasibility estimates made in connection with this purchase might be exempt from disclosure.

We are unaware of a specific call-out in the code for a title report or escrow statement.  However, the CPRA contains a “catch-all” exemption, which might be invoked here.  A record need not be disclosed if the agency can demonstrate that “on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.” Cal. Gov. Code § 6255(a) (emphasis added). This exemption is broad and routinely invoked by public agencies in denying access to public records, but it often does not justify non-disclosure, as the agency must set forth facts showing that the public’s interest in not releasing the documents clearly outweighs the interest in disclosure—the agency’s own interest in nondisclosure is not considered. Coronado Police Officers Assn. v. Carroll, 106 Cal. App. 4th 1001, 1015-1016 (2003).

To obtain this record, a good first step would be to submit a written request to the City making clear that you are requesting its records pursuant to the CPRA. The City then bears the burden of establishing a legal justification for withholding the record. Cal. Gov. Code § 6255. Further, an agency denying a public records request must not only identify an exemption but must also give its reasoning why the exemption applies. See Cal. Gov. Code § 6253(c) (agency “shall promptly notify the person making the request of the determination and the reasons therefor”) (emphasis added). Sample text for drafting your request 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.

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