Q: Can an internal investigation conducted by a city be obtained by an individual. The essence of the investigation is the purchase of equipment from a company and paying twice the amount quoted by another company for the same exact equipment. The difference in price was $25,000. The copy of the outcome of the investigation has been requested but denied twice because the city says it is an internal investigation and is not available to anyone outside of City government. This investigation would certainly be of interest to the public to see how the investigation was handled and what the outcome was. Please advise if this type of information is within the California Public Records Act.
A: The Public Records Act requires that for any request made in writing, the agency must indicate in writing the specific exemption it is claiming that justifies non-disclosure. Govt. Code 6253(b), 6255(a), (b).
If the agency to which you made your request has not done so, it may be worth asking them to provide that very specific information. It is always better to analyze the specific exemption an agency is claiming to than to guess as to which exemption it thinks applies.
That being said, there are three exemptions that are commonly asserted in such situations.
The first, found in section 6254(a), exempts from disclosure “preliminary drafts, notes or interagency or intra-agency memoranda that are not retained in the ordinary course of business, provided that the public interest in withholding those records clearly outweighs the public interest in disclosure.”
As you can see, that exemption will only apply if two conditions are met: the record is one that will not be retained by the agency, and public interest clearly favors secrecy.
The second likely exemption, found in section 6254(f), exempts from disclosure:
“records of complaints to, or investigations conducted by . . ,. the office of the Attorney General and the Department of Justice, and any state or local police agency, or ay investigatory or security files compiled by any other state or local agency for correctional, law enforcement, or licensing purposes . . . . “
If the investigatory report you seek fits within that wide definition, it will be exempt.
Lastly, section 6255, is a catch-all exemption whereby an agency is permitted to withhold any record for which it can show that public’s interest in secrecy clearly outweighs the public interest in disclosure. Whether this exemption applied will depend on the specific facts involved.
Again, it is most advisable in these situations to ask the agency to specify the exemption or exemptions upon which it relies.
Holme Roberts & Owen 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. I apologize for the delay in responding to your inquiry.
One Comment
I retired from 20 years in government contracting (as a civilian, GS-12). Despite rules & regulations of the Federal Acquisitiom Regulations, I can tell you that city government have policies similiar that would allow paying more than needed (to take care of a good old boys). It all depends on how the acquisition was advertised or solicited. Sad but true. I hope to finish a book on my experience some day. Try going after sppecific purchase orders for the equipment in question – then, publically question their decision to waste public money. Good luck.
Comments are closed.