Request for advisory committee’s documents denied

Answer

As it sounds like you are aware, under the Act, 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.

A “local agency” includes “a county; city, whether general law or chartered; city and county; school district; municipal corporation; district; political subdivision; or any board, commission or agency thereof; other local public agency; or entities that are legislative bodies of a local agency pursuant to subdivisions (c) and (d) of Section 54952.”Gov’t Code § 6252(a).Thus, it seems that the advisory board that you describe fits within the definition of “agency,” and is subject to the Public Records Act.

As the board chairman seems aware, under the Act, records must be available for inspection during the regular office hours of the agency.Gov’t Code § 6253(a).However, his assertion that the agency here — i.e., the board itself — is only “open” during its meetings, and that is when records will be made available for inspection under the Act, seems contrary to both the letter and the spirit of the Act.

Since this board was formed under the city planning department, it would seem that the office hours kept by the planning department would be the set time that records retained by the board or any of its members must be made available for inspection.

With respect to copies, it seems the chairman has been ill-advised by county counsel.Indeed, the Act explicitly states:

“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.”

The time for responding can be extended by the agency for an additional 14 days in “unusual circumstances.”Gov’t Code § 6253(b) and (c).This section goes on to state:
“No notice shall specify a date that would result in an extension for more than 14 days. 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.”Gov’t Code § 6253(c) (emphasis added).
The code then states what might constitute “unusual circumstances,” including:
(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.

Gov’t Code § 6253(c).
Additionally, access to copies of records is to be provided “promptly,” Gov’t Code § 6253(b), and “[n]othing in this chapter shall be construed to permit an agency to delay or obstruct the inspection or copying of public records. The notification of denial of any request for records required by Section 6255 shall set forth the names and titles or positions of each person responsible for the denial.”Gov’t Code § 6253(d).

Thus, the 10-day deadline is not a legal deadline for producing the actual records; however, under § 6253(b) and (d), once a determination has been made as to whether the records are disclosable, actual release of the records should promptly follow.

Finally, public agencies may charge a fee “covering direct costs of duplication” (or a statutory fee).Gov’t Code § 6253(b).”Direct cost” generally does not include search and retrieval time, but does include maintenance costs and the salary of the clerk for time spent copying (essentially, what a copy shop would charge per page, except for unusual copies, such as building plans).See North County Parents Org. v. Department of Educ., 23 Cal. App. 4th 144, 148 (1994):
An agency may charge “[t]he direct cost of duplication is the cost of running the copy machine, and conceivably also the expense of the person operating it. ‘Direct cost’ does not include the ancillary tasks necessarily associated with the retrieval, inspection and handling of the file from which the copy is extracted”.
You might consider resubmitting your Public Records Act request, in writing, directly to the planning department, which might help speed up the process of gathering public records that are retained by the board and its members (ideally, the planning department would assign one of its staff members to undertake the collection and copying of the requested records).

Although not statutorily required (your other option would be to orally convey your records request or to simply make an in-person request to inspect the relevant records), a written request should result in a written response, and if that response is a denial of your request, then the response should set forth the basis for the denial.

Holme Roberts & Owen 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.