Can I use the PRA to request lawmaker’s emails and calendars?

Answer

Statutes governing access to public records differ depending upon the person from whom you seek the records.  The Public Records Act only applies to records “prepared, owned, used, or retained by any state or local agency…”  Gov’t Code § 6252(e)(emphasis added).

Therefore if you seek records from a local legislator (supervisor or city council member, e.g.) you should submit a Public Records request.  Under California’s Public Records Act, 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,” Gov’t 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.

If you seek records from a member of the state legislature, the a request would be made pursuant to the Legislative Open Records Act (Government Code §§ 9070 et seq.).  The Legislative Open Records Act (LORA) covers “any writing prepared on or after December 2, 1974, which contains information relating to the conduct of the people’s business prepared, owned, used or retained by the Legislature.”  Gov’t Code § 9072(c).

As in the California Public Records Act, the word “record” is broadly defined to cover any form of recorded information.  Gov’t Code § 9072(d).   Both the Public Records Act and LORA contain a “catch all” exemption, excluding from disclosure records where, “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.”  Gov’t Code §§ 6255(a), 9074.

Unfortunately, in Times Mirror Co v. Superior Court, 53 Cal. 3d 1325 (1991), the court ultimately found that a governor’s calendars were exempt pursuant to the catchall provision of section 6255 because the public interest in non-disclosure clearly outweighed the public interest in disclosure with respect to those specific calendars.
“Disclosing the identity of persons with whom the Governor has met and consulted is the functional equivalent of revealing the substance or direction of the Governor’s judgment and mental processes; such information would indicate which interests or individuals he deemed to be of significance with respect to critical issues of the moment.”  Id. at 1343.

However, the court clarified:
“We caution that our holding does not render inviolate the Governor’s calendars and schedules or other records of the Governor’s office. There may be cases where the public interest in certain specific information contained in one or more of the Governor’s calendars is more compelling, the specific request more focused, and the extent of the requested disclosure more limited; then, the court might properly conclude that the public interest in nondisclosure does not clearly outweigh the public interest in disclosure, whatever the incidental impact on the deliberative process.”  Id. at 1346.
Additionally, this case was decided before the state constitution was amended to command that the Public Records Act be construed broadly so as to maximize access to records. The first step, of course, is to submit a records request for the information, calendars, and agendas you seek pursuant to either LORA or the Public Records Act (depending on if they are state or local legislators)—you can find more information on this website about how to submit a Public Records Act request, including a sample letter.  Find information on LORA  on the CA State Assembly’s website.

Although it is ultimately the agency’s duty to help you make effective, focused requests, I would recommend specifying the information you seek from the legislator’s calendar in accordance with Times Mirror.

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.