Countering a claim of non-existent records

Answer

As you know, under the California Public Records Act (“PRA”), the public has a right to inspect and obtain copies of documents collected or maintained by state or local agencies.  The PRA requires agencies to provide you with the documents requested, or notify you that your request has been denied, within 10 days.  (Gov’t Code § 6253).  If the written request is denied, the agency is obligated to back its denial by citing an exemption in the PRA or other state or federal law allowing it to withhold the records you seek.  (Gov’t code § 6255).   Here, it sounds like the City of San Diego did not cite any applicable PRA exemption or other authority to justify any denial of the records and simply stated that they do not have such records.  To the extent the records you seek are maintained by the City of San Diego, either in paper or electronic form, they are public records to which you should have a right of access.

If you believe the records exist and the City of San Diego is improperly withholding them, you certainly have the option of filing a lawsuit under PRA.  The PRA provides that prevailing parties in a PRA litigation be awarded their attorneys’ fees.  Govt. Code § 6259(d) (“The court shall award court costs and reasonable attorney fees to the plaintiff should the plaintiff prevail in litigation filed pursuant to this section. The costs and fees shall be paid by the public agency of which the public official is a member or employee and shall not become a personal liability of the public official. If the court finds that the plaintiff’s case is clearly frivolous, it shall award court costs and reasonable attorney fees to the public agency.”).  Below is a link to CFAC’s lawyer assistance request page, where you may be able to find a lawyer who may be able to assist you.   They should also be able to give you a general sense of what the cost of such legal action would be.

http://www.cfac.org/Lawyers/lawyers_rfp.html

However, to the extent that you believe that responsive documents have been destroyed, laws other than the PRA may be involved.  Nothing in the PRA addresses a local agency’s obligation to retain records.  See 64 Op. Atty Gen. Cal. 317 (1981) (“Nothing in the Public Records Act purports to govern destruction of records … Its sole function is to provide for disclosure.”).    Unfortunately, it is not always clear what destruction of records is permissible under California law.

Section 34090 of the Government Code provides for the lawful destruction of city records in certain circumstances:

Unless otherwise provided by law, with the approval of the legislative body by resolution and the written consent of the city attorney, the head of a city department may destroy any city record, document, instrument, book or paper, under his charge, without making a copy thereof, after the same is no longer required. This section does not authorize the destruction of:

(a) Records affecting the title to real property or liens thereon.
(b) Court records.
(c) Records required to be kept by statute.
(d) Records less than two years old.
(e) The minutes, ordinances, or resolutions of the legislative body or of a city board or commission.

Section 34090.5 further provides that:

Notwithstanding the provisions of Section 34090, the city officer having custody of public records, documents, instruments, books, and papers, may, without the approval of the legislative body or the written consent of the city attorney, cause to be destroyed any or all of the records, documents, instruments, books, and papers, if all of the following conditions are complied with:

(a) The record, paper, or document is photographed, microphotographed, reproduced by electronically recorded video images on magnetic surfaces, recorded in the electronic data processing system, recorded on optical disk, reproduced on film or any other medium that is a trusted system and that does not permit additions, deletions, or changes to the original document, or reproduced on film, optical disk, or any other medium in compliance with Section 12168.7 for recording of permanent records or nonpermanent records.

(b) The device used to reproduce the record, paper, or document on film, optical disk, or any other medium is one which accurately and legibly reproduces the original thereof in all details and that does not permit additions, deletions, or changes to the original document images.

(c) The photographs, microphotographs, or other reproductions on film, optical disk, or any other medium are made as accessible for public reference as the original records were.

(d) A true copy of archival quality of the film, optical disk, or any other medium reproductions shall be kept in a safe and separate place for security purposes.

However, no page of any record, paper, or document shall be destroyed if any page cannot be reproduced on film with full legibility. Every unreproducible page shall be permanently preserved in a manner that will afford easy reference. For the purposes of this section, every reproduction shall be deemed to be an original record and a transcript, exemplification, or certified copy of any reproduction shall be deemed to be a transcript, exemplification, or certified copy, as the case may be, of the original.

Finally, Government Code Section 6200 provides that:

Every officer having the custody of any record, map, or book, or of any paper or proceeding of any court, filed or deposited in any public office, or placed in his or her hands for any purpose, is punishable by imprisonment in the state prison for two, three, or four years if, as to the whole or any part of the record, map, book, paper, or proceeding, the officer willfully does or permits any other person to do any of the following:

(a) Steal, remove, or secrete.
(b) Destroy, mutilate, or deface.
(c) Alter or falsify.

I hope this information is useful and wish you good luck in your efforts.