University fails to make good faith effort to respond to records request

Answer

As you may know, California’s Public Records Act 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 the issue is not a claim that the records you seek are exempt from disclosure, but rather that the school is dragging its feet in actually providing the records. When a record is subject to disclosure, the PRA requires agencies to make it “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):

“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.” Id.

If an agency refuses to provide records under the Act, 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) — a fact that you may want to draw the university’s attention to in your next correspondence.

Note, however, that there is very little authority as to how long someone who requests records under the PRA may have to wait for the records before he or she initiates court action. California’s Court of Appeal considered a situation where an entity requested records but believed the responsive records were incomplete.

The entity and the agency went back and forth on getting what the requester was looking for, and the requester brought a court action to enforce the PRA. After the agency produced the document at issue, the court refused to grant the requester its attorneys’ fees on the grounds that it was not clear that the lawsuit prompted the disclosure.

In that case, some of the key agency personnel were on vacation when the delay occurred and there was apparently other evidence that the agency was working in good faith to produce the records. In deciding whether or not the suit caused the disclosure (thus making the requester eligible for its attorneys’ fees), the court said,

“in addition to the timing of the disclosure in relation to the filing of the lawsuit, other factors to be considered are “whether the agency made a good faith effort to discover and disclose material, whether the scope of the request caused a delay in disclosure, and whether the agency was burdened by other duties that delayed its response.”

Motorola Communication & Electronics, Inc. v. Department of General Services, 55 Cal. App. 4th 1340, 1346 (1997) (“Based on the uncertainties inherent in Motorola’s public records requests, and the timely efforts by the Department to respond, we conclude substantial evidence supports the superior court’s implicit finding this litigation did not cause the Department to disclose any of the documents ultimately made available to Motorola.”).

I believe the delay in Motorola was not as long as the delay you describe below, and it sounds like you may have reason to believe the school is not working in good faith to respond. Moreover, it cannot be the case that requesters must tolerate significant delays, especially in the absence of any indication that the agency is working diligently to provide the records.

If agencies could take as long as they wish to make records available once they’ve been determined to be responsive, then the PRA would be a relatively useless tool. Nevertheless, the Motorola case suggests that requesters should document the request and response process as fully as possible in the hope of showing that the delay was unreasonable and that litigation was necessary to force the disclosure.

As a practical matter, you might consider sending a letter describing the delay and noting the requirement in Gov’t Code § 6253(c) that the school tell you when the records will be made available. Having them commit in writing to a production date might spur them to actually get the job done. You might also point out that if the delays persist, your only option will be to sue to enforce the PRA, noting the attorneys’ fee provision.

You might also find the following link, which contains additional information about the Public Records Act, including a sample request letter, of some use: https://firstamendmentcoalition.org/category/resources/access-to-records/.

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition 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.