How can my records request meet deadline if staff assigned is on vacation?

Answer

The PRA sets forth certain clear requirements with respect to timing of disclosure, and agencies should not be permitted to simply disregard them.

When a record is subject to disclosure, the PRA requires agencies to make it “promptly available” on payment of copying fees.  Gov’t Code § 6253(b).

The PRA also says that “upon a request for a copy of records, [the agency] 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.”  Gov’t Code § 6253(c).  “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.”  Id.

Additionally, the agency has the duty to assist you in making a focused and effective request that reasonably describes identifiable records.  Gov’t Code § 6253.1.

While there certainly is no “I’m on vacation” exception to the PRA, at least one court seems to have accepted this as an excuse for a slight delay with respect to the production of records.

Motorola Commc’n & Electronics, Inc. v. Dep’t of Gen. Servs., 55 Cal. App. 4th 1340, 1345 (1997)(denying plaintiff’s motion for attorneys’ fees, finding production of additional records by agency was not motivated by initiation of plaintiff’s litigation under the PRA, and noting that initial request to the agency came at an “inopportune time” when lead counsel for the agency was going on vacation and the agency’s delay in any event was “not by much”).

That said, this case should not be taken to mean that anytime an individual responsible for responding to PRA requests within a particular agency takes a vacation, a PRA request can be delayed.

From a practical standpoint, however, and assuming your goal is to get the records as soon as possible, you may just have to wait for this individual to return from vacation to get the records you seek.

You might want to send a friendly follow-up letter to the agency reminding them of the time limits within which the agency is required to respond to your request, and note that staff vacation time is not a legitimate reason for the agency to delay responding.

You might also want to remind the agency that attorneys’ fees are available should you be required to bring a lawsuit to enforce your rights under the Act.  If anything, perhaps this will spur the staffer to respond to your request immediately upon her return from her vacation.

Further, the agency’s excuse that the request “is too complex” is not a reason to delay or deny your request.  You might want to remind the agency of its duty under Gov’t Code § 6253.1 to assist you in making a focused request.

If an agency refuses to provide records under the Act, the ultimate recourse is filing a lawsuit under Gov’t Code § 6259.  Such lawsuits are typically initiated by a verified petition (i.e., a request filed under oath) that asks the court to issue a writ of mandate, which is a type of order directing the public agency to take a specified action.

Attorneys’ fees are available to a plaintiff who prevails in litigation filed pursuant to the Act, Gov’t Code § 6259(d) — a fact that you may want to draw the agency’s attention to in your next correspondence.  (A plaintiff prevails if the litigation motivated the defendant to release the records.  Motorola, 55 Cal. App. 4th at 1344.)

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.