Using the CPRA to access list of alcoholic beverage licensees

Answer

I understand you are interested in obtaining licensee information, including email addresses, for all California beverage license holders from California’s Department of Alcoholic Beverage Control.  You are also interested in knowing whether your organization might be exempt from paying fees for the requested records, and whether you could make this request to ABC an ongoing request, such that records related to any new licenses that are issued would be sent to you in the future.

Under California’s Public Records 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.

First, I should note that the PRA only requires disclosure of records themselves, and does not compel an agency to compile new records with specific information requested.  In your situation, this means the agency would not have to create an Excel spreadsheet with the information you seek, though if such a record already existed in the agency’s possession, it would be required to disclose this to you unless some exemption applied.  You therefore might want to consider what types of records you want to request that would have the information that you seek.  Obviously, the licenses themselves are a good bet, though you may also want to request records such as lists or other compilations the ABC might already have in its possession that also contains this information.

Second, although there are some contexts under which truly personal information, such as addresses, may be exempted from disclosure, I cannot think of how any of the justifications for excluding such information in those situations would apply to the email addresses you seek here.  Any email addresses that were submitted to the ABC would have been submitted for purposes of correspondence between the business and the ABC.  I cannot think of any reason that such information would redacted from the records that you seek.

Of course, it is hard to anticipate what, if any, exemptions the ABC might claim in connection with the records you seek until you actually make your request, which we always recommend should be in writing, as this will compel a written response from the agency.

If you make a written request, the agency must determine whether the requested records are disclosable within 10 days of your request, and “promptly notify” you, in writing, if it will make the records available, or specifically state the exemption it is claiming and how it applies to the requested records.  Gov’t Code § 6253(c).

The agency must also state the estimated date and time when disclosable records will be made available. Gov’t Code § 6253(c).  The PRA requires agencies assist you in making a focused and effective request that reasonably describes identifiable records.  Gov’t Code § 6253.1.  d.

Check out FAC’s Public Records Primer for more information on the Public Records Act, including a sample request letter.

As to your second question regarding what fees might be charged in connection with your request, and whether your nonprofit might be exempt from those fees, except for some very narrow situations where, for example, the agency must perform computerized data compilation, extraction or programming to respond to a request, agencies are not allowed to charge fees for the search and retrieval of records.

Agencies that produce copies of records are permitted to charge “direct costs of duplication, or a statutory fee if applicable.”  Gov’t Code § 6253(b).  A “direct cost of duplication” generally does not include search and retrieval time, but does include maintenance costs and the salary of the clerk for time spent copying. See North County Parents Org. v. Department of Educ., 23 Cal. App. 4th 144, 148 (1994) (under the Public Records Act, 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.”).

Basically, this would be a cost for copies similar to what a copy shop might charge.  Given the ABC probably maintains these records in digital form, you could request that they give them to you digitally as well, either by emailing them to you or by downloading them to a CD or thumb drive (which you could either provide to the ABC, or they could provide to you at cost).  Unfortunately, the PRA does not provide any exemption from such fees for nonprofit organizations, but I don’t see why you could not work with the agency to figure out the most cost-effective way in which to transfer the records to you.

In your request letter to the ABC, you might want to mention that your preferred method of delivery is via email or some other electronic means (i.e., Drop Box).  Of course, if the agency cites any fees associated with the disclosure of the records, and the fees seem either unreasonable or not allowable under the PRA, you can write back and ask for a breakdown of the fees.

And finally, as to your third question, once you make contact with ABC as to what you are seeking, you might want to see if there is any way they can convey this information to you on an ongoing basis.  I don’t think the PRA can be read to compel such ongoing disclosure, since the statute is written in terms of how agencies must respond to individual requests.  That said, if the agency wants to avoid responding to multiple written requests from you throughout the year, it might be willing to consider some alternative arrangement.

Bryan Cave 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.