Can’t flush out City’s drainage report

Answer

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.

Of course, there are numerous exemptions that the City might invoke in responding to a records request, including the Act’s “catch-all” exemption, contained in Government Code § 6255(a).

This exemption states that in order to justify withholding a record, the agency must show that “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).

The burden of proof is on the agency to demonstrate “a clear overbalance on the side of confidentiality.”Michaelis, Montanari & Johnson v. Superior Court, 38 Cal. 4th 1065, 1071 (2006).

Please keep in mind that under the Act, “disclosure is favored,” and therefore “all exemptions are narrowly construed.” County of Santa Clara v. Superior Court, 170 Cal. App. 4th 1301, 1321 (2009).It’s not clear what the interest in not disclosing this particular record would be, however.

One other exemption that the agency might cite is the “draft” exemption, which exempts from disclosure “[p]reliminary drafts, notes, or interagency or intra-agency memoranda that are not retained by the public agency in the ordinary course of business, if the public interest in withholding those records clearly outweighs the public interest in disclosure.” Cal Govt. Code Section 6254(a).

Although some government personnel mistakenly believe that any “draft” document is automatically subject to this exemption, reading the text of the statute itself indicates that the exemption only applies i:
(1) the agency establishes that the plan is not retained in the ordinary course of business and

(2) that the public interest in withholding the plan clearly outweighs the public interest in disclosure. This is generally a fairly high threshold to meet.
You might to start by submitting a PRA request letter to the city seeking the engineer’s reports, as well as any records related to payments that the City has made to the engineer (if this would be useful to you).

Although not statutorily required (your other option would be to orally convey your records request or to simply make an in-person request to inspect the relevant records), a written request should result in a written response, and if that response is a denial of your request, then the response should set forth the basis for the denial.

The PRA also says that “upon a request for a copy of records, [the agency] shall, within 10 days from receipt of the request, determine whether the request, in whole or in part, seeks copies of disclosable public records in the possession of the agency and shall promptly notify the person making the request of the determination and the reasons therefor.”Gov’t Code § 6253(c).

In practice, agencies oftentimes latch onto the second provision, taking at least 10 days to respond to any request for copies.

You can find more information about the Public Records Act, including a sample request letter, at the First Amendment Coalition web site at http://firstamendmentcoalition.org/category/resources/access-to-records/.

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to the inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.