FAC filed an amicus brief with the Fourth District Court of Appeal in Voice of San Diego v. San Diego Unified School District, a lawsuit that challenges pervasive delays in responding to public record requests. FAC’s brief addresses what is a sufficient “determination” in response to a public records request.
The California Public Records Act (“CPRA”) requires that agencies “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,” with an estimated date and time for disclosure of available records. The time limit for such a determination may be extended for up to 14 days in certain “unusual circumstances” making it difficult to locate, collect, and review responsive records within 10 days.
This determination requirement is the cornerstone of compliance with the CPRA, but too often, public agencies treat it as an empty formality. The district argues that to make the required “determination,” it need not search for, locate, or examine the requested records or decide which records are subject to disclosure.
That makes no sense in light of the structure of the CPRA, which requires an agency to justify any withholding of records by citing specific exemptions. It is not possible to determine if a request seeks disclosable records and respond with the reasons for that decision without first having determined whether the agency in fact has any responsive records and if any such records are covered by applicable exemptions.
The district’s argument would also make the “unusual circumstances” safety valve meaningless. There is no need for that safety valve if the determination does not require an agency to locate, collect, and review responsive records.
A federal appellate court held that under a similar provision of the Freedom of Information Act, the “determination” requirement means the agency must collect and examine any responsive documents, decide which will be disclosed and which will be withheld, and state the exemptions under which records are withheld. As the court held, it is not sufficient for an agency to “decide to later decide” what records to disclose.
Because the relevant provisions of the CPRA and FOIA are similar, we argue that California should adopt the federal standard for what is a sufficient “determination” in response to a CPRA request.