What are my rights when the Legislature’s Rules Committees haven’t responded to my request for legislative records for more than 10 days?

Answer

As an initial matter, which you may already know, the California Public Records Act (“CPRA”) does not apply to the state legislature. See Govt. Code § 7920.540(a) (exempting from CPRA “those agencies provided for in Article IV … of the California Constitution,” which establishes state legislature). However, the Legislative Open Records Act (“LORA”) applies to the California Legislature and allows access to certain records. Govt. Code § 9070 et seq. 

LORA provides for disclosure of “legislative records,” which include “committee staff analyses,” “written testimony,” “background material submitted to the committee,” “press releases,” “versions of bills,” and more. Govt. Code § 9080(d) (cleaned up). LORA does not require legislative staff to answer specific questions or respond to general requests for “information,” if that information has not been memorialized in an existing, disclosable record. Thus, it is best practice to phrase LORA requests in terms of “records that contain, refer to, or relate to” the information you’re seeking, rather than merely requesting the information. 

Except to the extent legislative records are exempt from disclosure, see Govt. Code § 9075, LORA states, “Legislative records are open to inspection at all times during the normal office hours of the Legislature and any person has a right to inspect any legislative record.” Govt. Code § 9073. Further, any person may receive a copy of a legislative record, if the record is “of a nature permitting such copying.” Id. The cost of copying shall not exceed ten cents per page. Id.

“All requests to inspect any legislative record shall be made to the appropriate Rules Committee of each house of the Legislature or the Joint Rules Committee… Such committees shall be considered to have custody of all legislative records and shall be responsible for making all legislative records available for inspection.” Govt. Code § 9074. 

As to the timing of disclosure, those “committees shall promptly inform any person whether any legislative records shall be made available for inspection. Such legislative records shall be made available for inspection promptly and without unnecessary delay.” Govt. Code § 9074.

Whenever a committee withholds any legislative record from inspection, the committee must justify in writing within four working days of the request that the record in question falls under an express exemption or demonstrate that withholding the record serves the public interest and clearly outweighs the public interest served by disclosure. Govt. Code § 9074. If the Legislature is not in session, the committee shall provide written justification within 10 working days of the request to inspect the record. Id.

Therefore, although the LORA establishes deadlines for the Committees’ initial response to a request, it does not specify precisely when records must be available for a requesting party to inspect, other than “promptly and without unnecessary delay.” Id. 

Similar to the CPRA, the LORA provides that any “person may institute proceedings for injunctive or declarative relief in any court… to enforce his right to inspect any legislative record or class of legislative records under this article.” Govt. Code § 9076.

We don’t know of any case that has construed what relief, if any, a requester may obtain under the LORA when the Legislature violates the initial-response deadlines in the statute. The CPRA similarly contains precise initial-response deadlines and requires disclosure of records “promptly.” Unfortunately, however, courts have held that the CPRA itself typically “provides no remedy for failure to timely comply with a request for records” by itself and courts do not typically force disclosure of records merely because the agency was late. Rogers v. Superior Court, 19 Cal. App. 4th 469, 483 (1993). 

Courts might find this reasoning from CPRA cases to be persuasive even under the LORA, because the Court of Appeal has applied CPRA precedents to construe similar exemptions under the LORA. See Zumbrun Law Firm v. Cal. Legislature, 165 Cal. App. 4th 1603, 1621–22, (2008) (applying precedents analyzing the CPRA’s “catchall” exemption to “near identical language” in the LORA “section at issue”). However, other provisions may be distinct and unique to the LORA, such that CPRA case law would not be persuasive or analogous to a court. See Rittiman v. Pub. Utils. Com., 80 Cal. App. 5th 1018, 1046 (2022) (holding that “the PRA and the LORA ‘correspondence’ exemptions are distinctly different from the LORA ‘communications from private persons’ exemption” and rejecting application of CPRA precedents to construe the LORA exemption for “communications from private persons”).

As the California Supreme Court said in the CPRA context, “we believe that requiring disclosure of otherwise exempt records as a penalty for delay in complying with the Act’s timing requirements is unduly harsh. Certainly, the Act does not expressly provide such a remedy.” Michaelis, Montanari & Johnson v. Superior Court, 38 Cal. 4th 1065, 1072 (2006).

California case law does not clearly specify what the term “promptly” means in practical terms under either the CPRA or the LORA, but federal cases interpreting the Federal Freedom of Information Act (“FOIA”) have analyzed it. Because the CPRA was modeled on FOIA, California courts may rely on FOIA decisions as persuasive precedent when the two statutes are similar. Citizens for a Better Env’t v. Dep’t of Food & Agric., 171 Cal. App. 3d 704, 712 (1985). We don’t know whether a court would extend the same reasoning to the LORA. 

FOIA, like the CPRA and the LORA, requires responsive records be produced “promptly” after an initial determination has been made by the responding agency. 5 USC § 552; Citizens for Responsibility & Ethics in Wash. v. FEC, 711 F.3d 180, 189 (D.C. Cir. 2013). Some federal courts interpret “promptly” to “mean within days or a few weeks of a ‘determination,’ not months or years.” Citizens for Responsibility, 711 F.3d at 188–89 (emphasis added) (citing 5 U.S.C. § 552(a)(3)(A); see also Sierra Club v. U.S. EPA, No.18-cv-03472, 2018 U.S. Dist. LEXIS 219383, at *14 (N.D.Cal. Dec. 26, 2018). When the public is told records will not be produced for months, one court has said this “amounts as a practical matter in most cases to saying ‘regardless of whether you are entitled to the documents, we will not give them to you.’” Fiduccia v. United States DOJ, 185 F.3d 1035, 1041 (9th Cir. 1999).

As the D.C. Circuit said with respect to FOIA, “the statute does not allow agencies to keep FOIA requests bottled up for months or years on end while avoiding any judicial oversight.” Citizens for Responsibility & Ethics in Wash., 711 F.3d at 190. Courts might apply the same principle to the LORA to hold that when the Legislature fails to disclose records “promptly” and its delays are unreasonable under the circumstances, the unreasonable delays amount to actionable improper withholding of records, but we can’t say for sure. 

Additionally, there are certain records where disclosure is not required. As we understand it, the Legislature has not yet asserted any exemption in response to your request. We cannot tell you whether an exemption may apply here, however, a few of the notable exceptions are:

(a) Preliminary drafts, notes, or legislative memoranda, …

(b) Records pertaining to pending litigation to which the Legislature is a party, or to claims made pursuant to Division 3.6 (commencing with Section 810) of Title 1, until the litigation or claim has been finally adjudicated or otherwise settled.

(c) Personnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy, provided that the Senate Committee on Rules, the Assembly Committee on Rules, or the Joint Rules Committee shall determine whether disclosure of these records constitutes an unwarranted invasion of personal privacy.

(d) Records pertaining to the names and phone numbers of senders and recipients of telephone and telegraph communications, provided that records of the total charges for any such communication shall be open for inspection.

…

(h) Correspondence of and to individual Members of the Legislature and their staff, except as provided in Section 9080.

(i) Records the disclosure of which is exempted or prohibited pursuant to provisions of federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege.

(j) Communications from private citizens to the Legislature, except as provided in Section 9080.

Govt. Code § 9075.

Section 9080 specifically requires disclosure of “[l]egislative records contained in an official committee file,” such as written testimony or commentary on a bill by members of the public. Govt. Code § 9080(e).