Question
Tricky CPRA question regarding photos taken during a study undertaken by an an applicant for a California Energy Commission license. The company submitted a report, but CEC staff had many questions, and wanted photos, notes, data from the study, and to speak with the biologist who conducted it; staff requested a subpoena for the data and to have him appear at a workshop. The biologist appeared at the workshop and the applicant submitted the written info, and agreed to show photos to CEC staff and intervenors in the case. Per the agreement, the photos were not physically submitted or docketed as evidence in the case. My questions is whether the photos would be considered a record subject to CPRA.
Answer
The Public Records Act defines “public records” to include “any writing containing information relating to the conduct of the public’s prepared, owned, used or retained by any state or local agency.” Govt. Code section 6252(e). However, the Act only creates a duty to produce such records upon state and local “agencies.” Although the Act has been extended to require those private entities that contract with governmental agencies to produce reports, I am not aware of any situation in which the Act has been applied to a private entity that did not have a contractual obligation with a covered agency. So although the CEC and perhaps its contractors could be required to produce records under the PRA, the applicant for the license would not.
Your question also raises the possibility that the records were presented as part of some type of adjudicative proceeding. If that is the case, even if the PRA did not apply, the public may have a First Amendment right of access to the materials. Even so, it is unclear that the applicant could be compelled to produce copies of the photos to any member of the public who wanted to see them.
Bryan Cave 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.
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