Question
I have an outstanding PRA request to the county regarding ongoing litigation. The applicant of the project at issue in litigation changed in 2011. The County asserts they do not have the documents from the the previous applicant but that they can be purchased from a third party consulting firm for $2,000. My question is: who bears the cost to obtain the documents when the agency has lost or is missing the documents?
Answer
The Public Records Act does not address agencies’ obligations to retain records. It might be that the records were not retained pursuant to the county’s legitimate retention policies. Even if the records were not subject to disposal based on a county retention policy and instead were simply lost, it is not clear that the county would have the obligation to restore the integrity of its files by obtaining a copy of the record from
a third party.
However, if an agency intentionally gave custody of a public record to a third party so that the third party would control release of that record, that should run afoul of Gov’t Code § 6253.3, which provides that “[a] state or local agency may not allow another party to control the disclosure of information that is otherwise subject to disclosure pursuant to this chapter.”
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Asked & Answered posts should not be relied on as legal advice, and FAC makes no guarantees about their completeness or accuracy. All posts carry a date of publication that readers should take note of in assessing their usefulness, given that laws and interpretations of them may change over time. Posts predating Jan. 1, 2023, that discuss the California Public Records Act may contain statute numbers no longer in use. Please see this page for a table showing how the California Public Records Act has been renumbered.