Is a school caretakers’s security camera subject to CPRA?

Answer

Under the California Public Records Act (“PRA”), public records —which include “any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics,” Gov’t Code § 6252(e) — are presumed to be open to the public and must be disclosed unless a specific provision of the Act or other law exempts them from disclosure.

Furthermore, if requested, the agency must provide “disclosable public records in possession of the agency.”  Gov’t Code § 6253(c).  Whether or not the caretaker’s cameras are subject to the California Public Records Act (“PRA”) will depend on whether the school has both actual and constructive possession of the footage.  An agency will have constructive possession of the records if it has the right to control the records, either directly or through another person. Consolidated Irr. Dist. v. Superior Court, 205 Cal. App. 4th 697 (2012).

This is a fact specific inquiry that would require an examination of the caretaker’s contract to determine whether the caretaker is an independent contractor or subcontractor with the school, which would then help determine whether the school has constructive possession of the camera footage.

If you wanted to try to request the camera footage, and the caretaker’s contract, from the school anyways to see if the school would provide it, there are two methods by which you, as a member of the public, can request and access records.  First, you can request to inspect records in person by invoking Government Code § 6253(a), which provides, “[p]  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.”

Under this method, you should presumptively be able to walk into an agency’s office during regular hours and be given access to public records upon request.  Second, a request for copies of records may be made (whether in person or in writing ), although when this provision is invoked, the agency is given time – typically 10 days – to respond for the request and provide the requester with copies. Gov’t Code § 6253(b).

The PRA requires the agency assist you in making a focused and effective request that reasonably describes identifiable records.  Gov’t Code § 6253.1.  Additionally, if the agency refuses to provide a certain record it must cite any exemptions it is claiming and describe how the exemption applies to the records.  Gov’t Code § 6253(c).  The challenge with any PRA request is ensuring that it is broad enough to capture all the records you are seeking, and yet focused enough so that the agency will know what to look for.  The first step, of course, is simply making the request.  When I make a request, I typically first consider what categories of information I’m seeking – e.g., the subject areas I’m interested in – and then ask for any and all records related to those categories (bullet points work well for breaking down the categories).  You might want to consider framing the request to limit it to the camera footage from specific dates.  From there, hopefully the agency will work with you to focus your request so you get what you are looking for.

Here’s a link to more information about how to submit a Public Records Act request, including a sample letter.

Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to FAC 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.