Q: Our local fire district is a special independent district with the governing board elected by the populace. It is a 5 member board. There are no term limits and several board members have run unopposed for many years.
This Board is supposed to provide oversight over the actions of the Fire Chief. Recently members of the community have become aware of what we suspect is grave financial mismanagement by the Board and Fire Chief.
The Fire Chief has a troubled history in another district which required that he resign for financial mismanagement issues. The District has not submitted an audit to the County since 2009. The County doesn’t seem to have any authority because it is a special district.
We have seen violations of the Brown Act. We know that they have been hiding revenue off their books and we are suspicious of many of their transactions.
We started requesting records under the CPRA in November 2012. We have attended their public Board meetings and have been met with hostility and stonewalling.
Each of our requests under the CPRA have been answered by their attorney, who delays by asking for more detail. We provide detail and get another attorney letter stonewalling. We are a small organization with few resources to counter their attorney (which is paid for by taxpayer dollars!).
Can you help us with advice? We’d like to know if their using an attorney to respond to the CPRA request is illegal under the Act? They refuse to respond to us directly and are using him to stall compliance. We have written them a letter stating that we refuse to acknowledge their attorney as a legal party under the CPRA (there is no mention of attorneys as valid parties under the Act). We have stated that they must respond directly to us but so far they are ignoring us. We are not in litigation with them… we are only exercising our right under the CPRA to request records. Can you help us?
A: The Public Records Act does not in any way prohibit an agency from retaining an attorney, or having its in-house attorney, respond to Public Records Act requests.
Indeed, in my experience, it is a fairly common practice, and there is nothing necessarily nefarious about it.
That being said, the fact than attorney is responding to the request does not in any way alter the agency’s obligations under the law. The agency must still comply with the same time limitations in the law, as well as every other provision of the Public Records Act. The agency may indeed be using the attorney to stonewall your request. That is as improper as it would be if the agency personnel were stonewalling you directly.
Going forward, rather than resisting communicating with the attorney, you may want to engage in discussions — indeed make yourselves a thorn in the side of the attorney — with the attorney regarding moving the request forward.
Bryan Cave 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.