Question
I have requested “preliminary” flood mapping data from FEMA for the city. The FEMA Consultant has responded that the data are preliminary, therefore, they are not required to release it to the public. However, the city is using the preliminary flood data to dictate development standards. The city requires developers to conduct their own flood studies since the FEMA information is only draft or preliminary. If individual flood study conclusions are different than FEMA, the city sides with FEMA saying the FEMA information is superior. I want to independently verify the FEMA data, since I suspect it to be inaccurate. I believe the FEMA data I’ve requested falls under CPRA and FOIA since the city FEMA flood study was funded by local and federal money.
Answer
Since the records at issue were created by a federal agency and apparently maintained by a local agency, you may have rights of access under either the FOIA (to the extent you are requesting the records from FEMA) or the Public Records Act (to the extent you are requesting the records from the City. See, e.g., Govt. Code section 6252(e) (defining public records subject to disclosure under the PRA as those records “prepared, owned, used, or retained by any state or local agency”) (emph. added).
Thus, the FEMA data would appear to be a public record subject to disclosure under the California PRA unless an exemption to disclosure applies. If you have not already done so, you should request the data from the City under the PRA. As you are no doubt aware, your request can either be oral or in writing. A sample written request can be found at the CFAC website. (https://firstamendmentcoalition.org/cpra-primer/sample-cpra-request-letter/)
Although it is usually more difficult and time-consuming to obtain data under the FOIA, you should also make a formal written request to FEMA for the data under FOIA, following the instructions on the FEMA website http://www.fema.gov/help/foia.shtm. At least as a preliminary matter, it does to appear that the information you seek should be exempt from disclosure under FOIA.
I hope this information is helpful to you.
Asked & Answered posts should not be relied on as legal advice, and FAC makes no guarantees about their completeness or accuracy. All posts carry a date of publication that readers should take note of in assessing their usefulness, given that laws and interpretations of them may change over time. Posts predating Jan. 1, 2023, that discuss the California Public Records Act may contain statute numbers no longer in use. Please see this page for a table showing how the California Public Records Act has been renumbered.