Denied records of homicide investigation

Answer

I am very sorry to hear about your loss. I hope this information may be of some use in obtaining the records you seek.

In your case, it sounds like the agency has not taken the position that the records you seek are exempt from disclosure. Rather, it sounds like the agency is trying to avoid having to redact exempt information from the records by instead verbally reporting information to you.

While it is conceivable in certain extreme cases that the burden of collecting and preparing voluminous records might provide some basis for an agency to refuse to produce or delay in producing records, this does not sound like an extreme case. That is, there is no evident justification for the agency to avoid its obligation to “make the records promptly available” to you. Gov’t Code § 6253(b).

The Public Records Act provides that:
“[p]ublic records are open to inspection at all times during the office hours of the state or local agency and every person has a right to inspect any public record, except as hereafter provided. Any reasonably segregable portion of a record shall be available for inspection by any person requesting the record after deletion of the portions that are exempted by law.” Gov’t Code § 6253(a).
The Act further provides that:
“[e]xcept with respect to public records exempt from disclosure by express provisions of law, each state or local agency, upon a request for a copy of records that reasonably describes an identifiable record or records, shall make the records promptly available to any person upon payment of fees covering direct costs of duplication, or a statutory fee if applicable. Upon request, an exact copy shall be provided unless impracticable to do so.” Gov’t Code § 6253(b).
As for timing,
“[e]ach agency, upon a request for a copy of records, 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.

In unusual circumstances, the time limit prescribed in this section may be extended by written notice by the head of the agency or his or her designee to the person making the request, setting forth the reasons for the extension and the date on which a determination is expected to be dispatched. No notice shall specify a date that would result in an extension for more than 14 days. When the agency dispatches the determination, and if the agency determines that the request seeks disclosable public records, the agency shall state the estimated date and time when the records will be made available.

As used in this section, “unusual circumstances” means the following, but only to the extent reasonably necessary to the proper processing of the particular request:

(1) The need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request;

(2) The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records that are demanded in a single request;

(3) The need for consultation, which shall be conducted with all practicable speed, with another agency having substantial interest in the determination of the request or among two or more components of the agency having substantial subject matter interest therein;

(4) The need to compile data, to write programming language or a computer program, or to construct a computer report to extract data.” Gov’t Code § 6253(c).

From a practical perspective, it might be useful to follow up your initial request with a written follow-up letter setting out when you made the initial request and describing the subsequent (in)action of the agency. It might be useful to explicitly note the offer of a verbal report so that you can make it clear that you maintain your request for copies of the actual records.

It can sometimes also be useful to point out that if you are forced to file a lawsuit to enforce the Public Records Act and you prevail in that litigation, the agency would be liable for your attorneys’ fees. Gov’t Code § 6259 (“The court shall award court costs and reasonable attorney fees to the plaintiff should the plaintiff prevail in litigation filed pursuant to this section.”).

You can find more information about the Public Records Act on 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 First Amendment Coalition 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.