Is it normal to receive multiple CPRA extensions for months?

Answer

In general, the California Public Records Act (“CPRA”) specifies a time to respond to requests, but not necessarily a specific deadline for providing copies of records, other than that an agency “shall make the records promptly available.” Govt. Code § 7922.530(a).

According to the CPRA, “Each 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. If the agency determines that the request seeks disclosable public records, the agency shall also state the estimated date and time when the records will be made available.” Govt. Code § 7922.535(a).

Therefore, although the CPRA establishes deadlines for an agency’s initial response to a request, it “does not specify when records must be produced to a requesting party.” Motorola Communication & Electronics, Inc. v. Department of General Services, 55 Cal. App. 4th 1340, 1349 (1997).

In “unusual circumstances,” the time to respond may be extended by up to 14 days. Govt. Code § 7922.535(b). The term “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.”

Govt. Code § 7922.535(c).

If an agency claims “unusual circumstances,” it must provide “written notice … setting forth the reasons for the extension and the date on which a determination is expected to be dispatched.” Govt. Code § 7922.535(b).

An exception applies for records covered by SB 1421 and SB 16, relating to certain uses of force or misconduct by law enforcement officers. Except for certain delays authorized during pending investigations or proceedings, such records “shall be provided at the earliest possible time and no later than 45 days from the date of a request for their disclosure.” Penal Code § 832.7(b)(11). For more on the timing of disclosure of such records & authorized delays, please see our police transparency handbook.

Another exception applies for records covered by SB 519, which relates to records relating to “an event where a person has died in the custody or supervision of the local detention facility.” Penal Code § 832.10(a)(1). Except for delays authorized by that statute, such records “shall be provided at the earliest possible time and no later than 45 days from the date of a request for their disclosure.” Penal Code § 832.10(c)(6).

The CPRA provides that nothing in it “shall be construed to permit an agency to delay or obstruct the inspection or copying of public records.” Govt. Code § 7922.500. Unfortunately, however, the CPRA itself typically “provides no remedy for failure to timely comply with a request for records” by itself, and courts do not typically force disclosure of records merely because the agency was late. Rogers v. Superior Court, 19 Cal. App. 4th 469, 483 (1993).

As the California Supreme Court said, “we believe that requiring disclosure of otherwise exempt records as a penalty for delay in complying with the Act’s timing requirements is unduly harsh. Certainly, the Act does not expressly provide such a remedy.” Michaelis, Montanari & Johnson v. Superior Court, 38 Cal. 4th 1065, 1072 (2006).

California case law does not clearly specify what the term “promptly” means in practical terms, but federal cases interpreting the Federal Freedom of Information Act (“FOIA”) have analyzed it. Because the CPRA was modeled on FOIA, California courts may rely on FOIA decisions as persuasive precedent when the two statutes are similar. Citizens for a Better Env’t v. Dep’t of Food & Agric., 171 Cal. App. 3d 704, 712 (1985).

FOIA, like the CPRA, requires responsive records be produced “promptly” after an initial determination has been made by the responding agency. 5 USC § 552; Citizens for Responsibility & Ethics in Wash. v. FEC, 711 F.3d 180, 189 (D.C. Cir. 2013). Some federal courts interpret “promptly” to “mean within days or a few weeks of a ‘determination,’ not months or years.” Citizens for Responsibility, 711 F.3d at 188–89 (emphasis added) (citing 5 U.S.C. § 552(a)(3)(A); see also Sierra Club v. U.S. EPA, No.18-cv-03472, 2018 U.S. Dist. LEXIS 219383, at *14 (N.D. Cal. Dec. 26, 2018). When the public is told records will not be produced for months, one court has said this “amounts as a practical matter in most cases to saying ‘regardless of whether you are entitled to the documents, we will not give them to you.’” Fiduccia v. United States DOJ, 185 F.3d 1035, 1041 (9th Cir. 1999).

As the D.C. Circuit said with respect to FOIA, “the statute does not allow agencies to keep FOIA requests bottled up for months or years on end while avoiding any judicial oversight.” Citizens for Responsibility & Ethics in Wash., 711 F.3d at 190. Courts might apply the same principle to the CPRA to hold that when an agency fails to disclose records “promptly” and its delays are unreasonable under the circumstances, the unreasonable delays amount to actionable improper withholding of records.

If one believes an agency has unlawfully withheld public records not covered by a specific exemption, the CPRA provides for legal action to enforce the right to inspect or copy public records. See Govt. Code §§ 7923.000, 7923.100. In such litigation, a person prevailing against an agency in a CPRA case is generally entitled to recover costs and attorney fees. Govt. Code § 7923.115(a). An agency is not entitled to recover costs or attorney fees from a requester who brings suit unless the court finds the case is “clearly frivolous.” Govt. Code § 7923.115(b).

In litigation, an agency bears the burden of proof to justify withholding requested records. International Federation of Professional & Technical Engineers, Local 21, AFL-CIO v. Superior Court, 42 Cal. 4th 319, 329 (2007).

More details about the CPRA are available on the public records handbook page of our website.