Q: I’ve run into trouble with a CPRA request I submitted. I requested Title IX investigations reports from every college in California. Several community colleges are denying my request using FERPA, which the US DoE said does not apply to investigation reports in a Dear Colleague letter. Other schools are charging absurd amounts of money ($800-$2500) for the documents. Others are citing attorney client privilege and other aspects of the CPRA act. Every University of California campus has complied with my request. I’m not sure how I should handle the denials. Will taking legal action get me the documents? Or is there another way I can go forward?
A: I am almost certain that there is no exemption that would apply to final report of a Title IX investigation.
For those institutions that are claiming FERPA applies to these reports, you might want to write back and inform them that you do not believe that FERPA prevents the disclosure of the final reports, citing the “Dear Colleague” letter for support. You could remind the institutions that should you be forced to bring a lawsuit to enforce your right to these reports under the PRA, they will be required to pay your attorneys’ fees shouldyou prevail.
As for the institutions that are charging large sums for the reports, you might want to write and ask what the basis of these charges are, and also remind the agencies what is statutorily permitted. Under the Public Records Act, an agency can only charge for the “direct costs of duplication, or a statutory fee if applicable” when responding to a PRA request. Govt. Code section 6253(b). “Direct costs of duplication” has been interpreted narrowly, and one case specifically found an agency cannot charge for costs associated with searching for, reviewing or redacting information.
See N. Cnty. Parents v. Dep’t of Ed., 23 Cal. App. 4th 144 (1994).
In the paper world, the “direct cost of duplication” would basically be what it would cost to run the copy machine (i.e., what a copy shop might charge on a per-page basis).
That said, the agency may be claiming that the charge is permissible as a “statutory fee.” (The FAC takes the position that statutory fees may only be authorized by the legislature; however, there is some disagreement on this point.
For further information, see this previously answered Legal Hotline question).
In any event, the agency should explain both the authority allowing such fees, as well as the methodology used to come up with the specific amount it is asking for. If the agency cannot point to authority that allows such fees, and/or is charging an exorbitant per-page amount, then it may be the fees are not permissible under the PRA.
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.