When government outsources program are documents public?

Answer

The question you raise is a difficult one, and my colleagues and I are aware of only spotty authority that addresses the question of public records which the government has effectively outsourced. However, neither case really addresses the particular situation you outline below.

In San Gabriel Tribune v. Superior Court, 143 Cal. App. 3d 762 (1983), a reporter sought copies of financial reports submitted by a waste disposal company to a city in support of requested rate hikes. The city refused to disclose the records on the ground that they were the confidential records of a private business. The court disagreed, holding that any interest the city and waste disposal company had in keeping the records secret was outweighed by the public’s interest in “be[ing] informed of the provision of governmental services contracted on behalf of the residents.” Id. at 780.

In San Gabriel, though, there wasn’t a question of whether the city actually had the records at issue, which is how it differs from your situation.

More recently, the Attorney General considered whether the Public Records Act applied to a private, non-profit corporation that was formed to provide programming for a cable television channel set aside for educational use. 85 Ops. Cal. Atty. Gen. 55 (March 14, 2002). The AG noted that a nonprofit that satisfies the requirements of Govt. Code section 54592(c) (which is part of California’s open meetings law, the Brown Act), is also subject to the PRA. Section 54592(c) provides that a legislative body includes:
(1) A board, commission, committee, or other multimember body that governs a private corporation, limited liability company, or other entity that either:

(A) Is created by the elected legislative body in order to exercise authority that may lawfully be delegated by the elected governing body to a private corporation, limited liability company, or other entity.

(B) Receives funds from a local agency and the membership of whose governing body includes a member of the legislative body of the local agency appointed to that governing body as a full voting member by the legislative body of the local agency.

(2) Notwithstanding subparagraph (B) of paragraph (1), no board, commission, committee, or other multimember body that governs a private corporation, limited liability company, or other entity that receives funds from a local agency and, as of February 9, 1996, has a member of the legislative body of the local agency as a full voting member of the governing body of that private corporation, limited liability company, or other entity shall be relieved from the public meeting requirements of this chapter by virtue of a change in status of the full voting member to a nonvoting member.
Although the AG decided that the cable company in that situation was subject to the PRA, it is not clear that the entity you describe below would meet the criteria set forth above.

The best starting point for you may be the definition of public records: “‘Public records’ includes 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.” Govt. Code § 6252.

The city seems to be implicitly arguing that because it does not actually possess the particular record you describe, it is not required to disclose that record under the PRA. While I am not aware of any authority directly on point, the city’s interpretation – if this is, in fact, their defense– would seem to be quite narrow with respect to “owned” and/or “used.” One angle you might want to try is to inspect the city’s contract with the vendor to see if it gives the city ownership of information and records generated by the vendor pursuant to the services it performs for the city. If the city essentially “owns” what is in the database, it should be hard-pressed to establish that it does not own any particular report generated from the database.

At this point, you may want to write to your contact with the city, or perhaps the city attorney, asserting that the information you requested falls squarely under the guidelines created by California’s Public Records Act and that you have even offered to pay for the copies you have requested. See Cal. Govt. Code §§ 6252(e) and 6253.9(b). Furthermore, you should point out in this letter that 50 other cities have already released this information to you and that the city has no good reason to deny access to that information. Ask them to explain the legal grounds supporting their decision not to disclose the information from the red light camera. Finally, you may wish to point out that if the city continues to withhold this information and you decide to file a writ of petition in the Superior Court to compel disclosure, attorneys’ fees are available to a plaintiff who prevails in litigation filed pursuant to the Act. See Cal. Gov’t Code § 6259(d).

You can find additional information on the Public Records Act on the FAC’s website here.

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.