Does a federal regulation stating that a record is “available for public inspection” prevent an agency in California from disclosing a copy of the record?

Answer

The California Public Records Act (“CPRA”) applies to state and local agencies, which must generally 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.

The CPRA provides for two means of accessing public records: inspection and copying.

As to inspection, the CPRA states, “Public records are open to inspection at all times during the office hours of a state or local agency and every person has a right to inspect any public record, exempted as otherwise 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.” Govt. Code § 7922.525.

With respect to copying, an “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.” Govt. Code § 7922.530(a).

The CPRA “does not require disclosure of records, the disclosure of which is exempted or prohibited pursuant to federal or state law.” Govt. Code § 7927.705.

In some circumstances, other laws may provide for inspection of records while limiting the right to make or obtain copies. For example, Health & Safety Code section 19851(a) states, in relevant part, “The official copy of the plans maintained by the building department of the city or county provided for under Section 19850 shall be open for inspection only on the premises of the building department as a public record. The copy may not be duplicated in whole or in part” except with written permission or court order as specified in the statute, presumably to protect any copyright interests that might attach to the building plans submitted by private individuals.

Unlike building plans or other documents submitted to an agency by private persons that might be subject to copyright, the transition plan created by a public agency is not necessarily protected by copyright law. See County of Santa Clara v. Superior Court, 170 Cal. App. 4th 1301, 1334 (2009) (holding there was “no statutory authority” for agency to assert any “copyright interest” over map created by agency).

The federal regulation at issue states, in relevant part, “A copy of the transition plan shall be made available for public inspection.” 28 C.F.R. § 35.150(d)(1). By its terms, that language requires making the plan available for inspection, but it does not explicitly prohibit providing copies of the plan on request, as required by the CPRA. Therefore, it is not clear that the regulation is a law that prohibits making copies of the plan within the meaning of Government Code section 7927.705.

In some circumstances, a state law providing for disclosure of records may be preempted by federal law “to the extent it actually conflicts with federal law, that is, when it is impossible to comply with both state and federal law, or where the state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress.” Rim of the World Unified School Dist. v. Superior Court, 104 Cal. App. 4th 1393, 1398–99 (2002) (cleaned up).

For example, the Court of Appeal held that a state law requiring that “student expulsion records be publicly disclosed on demand” was preempted by the federal Family Educational Rights and Privacy Act (“FERPA”), which conditions federal funding on not disclosing certain student records, because there was a “genuine, undeniable conflict between state and federal law” and the state law in question was “an obvious obstacle to accomplishing Congress’s purposes and objectives in enacting FERPA.” Id. at 1399.

In theory, a federal regulation can preempt state law if it is within the scope of the relevant agency’s authority and the agency intended to preempt state law, explicitly or implicitly. See, e.g., Cohen v. Apple Inc., 46 F.4th 1012, 1028 (9th Cir. 2022).

In this case, assuming the regulation is within the relevant agency’s authority, it is not clear that there is a direct conflict between the CPRA and the federal regulation or that the CPRA is an obstacle to the purpose or objective of the regulation, because the regulation does not explicitly prohibit making a copy of the transition plan and the purpose of the regulation is to make the plan available to the public. It is also not clear that the regulation was intended to prevent local agencies from disclosing copies of the plan.

A recent Ninth Circuit decision may be somewhat analogous. As the court said, “ConocoPhillips Alaska, Inc., an oil and gas producer, sued to prevent Alaska’s Oil and Gas Conservation Commission from disclosing well data that the company sought to keep confidential. The district court entered judgment for ConocoPhillips, holding that the Commission could not release the data because federal law preempts the Alaska statute requiring it to do so. But federal law neither expressly preempts the statute nor evinces a congressional purpose that would be obstructed by it.” ConocoPhillips Alaska, Inc. v. Alaska Oil & Gas Conservation Comm’n, No. 23-35512 (9th Cir. May 27, 2026).