Third time no charm: University denies documents, offers no explanation

Answer

Just to clarify, FOIA, or the Freedom of Information Act, refers to the federal law pertaining to disclosure of public documents held by federal agencies.

In California, we have the Public Records Act, which provides that 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.

It sounds like you have already made one request for the records you are interested in — those involving the university’s policy on letter credit for certain types of classes — but was denied your request.

For starters, the university should have provided you with the specific exemption that it is claiming, and how that exemption applies to the records that you seek.In any future correspondence with the university, you may want to emphasize–while maintaining that the records you seek are disclosable under the Act– that t he university should state what exemption it is claiming in withholding the requested records if it is inclined not to release the records.

I reviewed the Act to see if any specific exemption might apply to the records you describe, but could not find anything that fit.Oftentimes, when no specific exemption applies, agencies will invoke the Act’s so-called “catch-all” exemption, which provides that an agency may withhold public records, even if no express exemption is applicable, if it can demonstrate “that on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.” Gov’t Code § 6255(a).

This exemption is broad and undefined, and is routinely invoked by public agencies in denying access to public records, but often does not justify non-disclosure, as the agency must set forth facts showing that the public interest in not releasing the documents “clearly outweighs” the interest in disclosure.

As for next steps, if you have not done so already, you may want to resubmit your request in writing.Although not statutorily required, 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.

If the agency refuses to disclose the requested records, you could try pushing back with appropriate legal arguments as to why these records are subject to disclosure.In any event, as it sounds like you know, when a copy of public records is requested, the Act requires agencies to make them “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).

In practice, agencies typically latch onto the second provision, taking at least 10 days to respond to any request for copies.In your case, to the extent you are simply following up on a request you have already made, there would not seem to be any basis for the agency to invoke an additional 10-day period.

If an agency refuses to provide records under the Act — or fails to respond at all within the statutorily defined timeframe –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.Attorney’s fees are available to a plaintiff who prevails in litigation filed pursuant to the Act, Gov’t Code § 6259(d).In any follow-up correspondence you have with the university regarding the fact that you have not received the requested records, you may want to (subtly, but firmly) point out that attorney’s fees are available should you take the agency to court and prevail.

If you are looking for an attorney to represent you in this matter, you might consider trying the FAC’s Lawyer’s Assistance Request Form at http://firstamendmentcoalition.org/lawyers-assistance-request-form/.

You might also find this link, which contains additional information about the Public Records Act, including a sample request letter, helpful: http://firstamendmentcoalition.org/category/resources/access-to-records/.

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to the inquiries, we can give general information regarding open governmentand speech issues but cannot provide specific legal advice or representation.