Question
An historic inventory and study that the city paid for was put on the city’s website for only a day and then taken off. I’ve asked city staff to provide me with a copy and was told that it’s an administrative draft and they’re not for public view.
Answer
I think the first question is whether the inventory and study you are looking for is exempt from disclosure under California’s Public Records Act. As you may know, under the PRA, 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,” Govt. Code section 6252(e) — are presumed to be open to the public and must be disclosed unless a specific provision of the PRA or other law exempts them from disclosure.
There is, however, a provision of the PRA that 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 withholdingthose records clearly outweighs the public interest in disclosure.”Govt. Code section 6454(a).
Note that there are several importantcriteria that a record has to meet before an agency may withhold it under this exemption. First, the record has to be a preliminary draft,note, or memorandum. Second, the record has to be one that the agency would not normally retain in the ordinary course of business. And third (and probably most importantly) the public’s interest in disclosing the record has to clearly outweigh the public interest in making the record public.
You might find the case Citizens for a Better Environment v. Department of Food and Agriculture, 171 Cal. App. 3d 704 (1985), interesting with respect to this exemption (http://scholar.google.com/scholar_case?case=2366295894152302234&q=171+cal+app+3d+704&hl=en&as_sdt=2004).
You might also have an argument that by making the report available on the web site — even for a short amount of time — the city waived the exemption under Section 6254.5 of the PRA (“[W[henever a state or local agency discloses a public record which is otherwise exempt from this chapter, to any member of the public, this disclosure shall constitute a waiver of the exemptions specified in Sections 6254 ….”). I am not aware of Section 6254.5 having been applied in these kinds of circumstances before, however.
Asked & Answered posts should not be relied on as legal advice, and FAC makes no guarantees about their completeness or accuracy. All posts carry a date of publication that readers should take note of in assessing their usefulness, given that laws and interpretations of them may change over time. Posts predating Jan. 1, 2023, that discuss the California Public Records Act may contain statute numbers no longer in use. Please see this page for a table showing how the California Public Records Act has been renumbered.