Question
This is two pronged: I asked the City Clerk multiple times if they had heard from county elections officials if they had verified signatures turned in for a citizen’s ballot initiative. I was told repeatedly they had not yet heard.
The next day, they sent me the document from the county showing the signatures had been verified. It was time stamped by the City Clerk shortly before 4 p.m.the previous day. In other words, the city clerk had the document but told me they had not heard anything from the county (I had not made a formal request for the document). I heard later the city manager’s office wanted to notify council members before releasing the document to the public. My question: is there any provision in the Public Records Act that allows for that delay?
Second, the county elections office refused to provide me with a verbal update regarding what stage they were at in the signature verification process. They said I had to go through the city clerk, although the verification process is a county function. (Again, I did not submit formal CPRA request as I did not know whether any document was available).
Is there anything in CPRA law that prevents the agency performing the task, as county elections was doing, from either providing the verification document or even providing information whether such a document exists, or what stage the verification process is at?
Answer
I’m not sure that the clerk’s delivery of the document the following day technically violates the PRA, but given the city knew you were very interested in seeing it, it certainly seems to go against the spirit of the Act.
Under the Public Records Act, there are two methods by which members of the public can request and access records. First, a requester can request to inspect records in person by invoking Government Code § 6253(a), which provides, “[p]ublic records are open to inspection at all times during the office hours of the state or local agency and every person has a right to inspect any public record, except as hereafter provided.”
Under this method, any member of the public should presumptively be able to walk into an agency’s office during regular hours and be given access to public records upon request. Second, a request for copies of records may be made (whether in person or in writing), although when this provision is invoked, the agency is given time – typically 10 days – to respond for the request and provide the requester with copies. Gov’t Code § 6253(b). It’s also important to note that the PRA applies only to records, and not requests for information.
In the situation you describe, it sounds like the city clerk had access to the information you were seeking and/or the record containing that information, but it is unclear whether you made these requests in person or through other means (email or phone calls). If you were at the clerk’s office, and you made clear you wanted to see the underlying documents that contained the information you sought, then they probably should have made the document available for inspection once it was approved by the clerk.
On the other hand, if you were requesting a copy of the record, either in writing (i.e., through email) or by phone, then technically the timeline for giving you the record would be a bit longer under § 6253(c). It’s a fairly fine distinction, but in the future, if you are under deadline pressure and have reason to believe that a document you are seeking is in the agency’s possession, you might want to go to the agency’s office during business hours and make clear you are there to see the record in person.
I’m not sure that the clerk’s delivery of the document the following day technically violates the PRA, but given the city knew you were very interested in seeing it, it certainly seems to go against the spirit of the Act.
As to notifying the council before releasing the document, unless there was some procedural reason for the City Council to sign off on the verification, the release of the document under the PRA should not have hinged on the council members being notified that it was to be released.
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.
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