Can public agencies destroy records after denying a CPRA request to release them, even if I intend to file a lawsuit, and how long after the request was denied do I have to file a lawsuit?

Answer

The California Public Records Act (“CPRA”) generally requires state and local agencies to disclose any public record on request to any member of the public unless the record falls within a specific statutory exemption from disclosure. Govt. Code §§ 7922.525, 7922.530.

As courts have said, the CPRA “is designed to give the public access to information in possession of public agencies. [The CPRA] itself does not undertake to prescribe what type of information a public agency may gather, nor to designate the type of records such an agency may keep, nor to provide a method of correcting such records. Its sole function is to provide for disclosure.” Los Angeles Police Dept. v. Superior Court, 65 Cal. App. 3d 661, 668 (1977).

The California Supreme Court held that the CPRA by itself does not generally require agencies to retain records for any given period of time after a request is made and noted that records may be “destroyed in connection with the normal adoption, implementation, and operation of routine records retention practices and policies” established by other laws or rules, but it did not “address intentional destruction of records in other contexts that may reflect some type of deliberate misconduct.” City of Gilroy v. Superior Court, 19 Cal. 5th 38, 70 & n.20 (2026). You may wish to consider sending a letter to the agency directing it to preserve the records at issue due to impending litigation.

Specialized rules may apply to particular records. I have not researched whether the records you seek are subject to any particular retention requirement.

As far as I know, the CPRA itself contains no statute of limitations on bringing a lawsuit to seek disclosure of public records and no reported case has discussed the issue.

In general, unless there is a more specific statute on point, California law requires an “action upon liability created by a statute, other than a penalty or forfeiture” to be brought “[w]ithin three years.” Code Civ. Proc. § 338(a). As far as I know, the CPRA does not clearly involve a penalty or forfeiture.

Generally, “[a]n obligation is a ‘liability created by statute’ within the meaning of Code of Civil Procedure section 338 where a statutory scheme has been adopted that gives rise to newly created rights, if the liability was created by law in the absence of an agreement, or if the duty is fixed by the statute itself.” County Sanitation Dist. v. Superior Court, 218 Cal. App. 3d 98, 106-07 (1990) (cleaned up); see also, e.g., Winick Corp. v. General Ins. Co., 187 Cal. App. 3d 142, 145 (1986) (“An obligation is created by statute if the liability would not exist but for the statute, and the obligation is created by law in the absence of an agreement. The action must be of a type which did not exist at common law.”) (citations omitted).

The CPRA “was enacted in 1968.” CBS, Inc. v. Block, 42 Cal. 3d 646, 651 (1986). “Prior to the enactment of the Public Records Act, California did not have such an omnibus law of public access to official records,” although various statutes provided access to certain records. Cal. Atty Gen. Opinion No. 67-144, 53 Ops. Cal. Atty. Gen. 136, 140 (1970).

It’s possible that the CPRA was a statute that gave rise to newly created rights, created a liability in the absence of an agreement, or created a duty to disclose public records that is fixed by the statute itself. If so, legal actions to enforce the CPRA may be subject to a three-year statute of limitations, running from the date of the request or the date it was denied.