California Public Records Act Primer

• All public records are subject to disclosure unless they fall within one of the exemptions articulated in the Public Records Act, or PRA for short.¹

• The definition of public records in the PRA includes most documents generated or used by the government.²

• The PRA is subject to numerous exemptions. There are a number of categorical exemptions in Government Code sections 7923.600 through 7929.610, which are often invoked by public agencies in denying access to records. There is a general “Catch-All” exemption created by Government Code section 7922.000. In addition, there are several hundred exemptions not included in the PRA itself, but set forth in other statutes and incorporated into the PRA under Government Code section 7927.705. Government Code sections 7930.000 through 7930.215 provide a list of many (but not all) of the statutes that may limit disclosure of information contained in public records.

All state agencies except the California Legislature and judicial agencies.³

• Courts and court administrative bodies, such as the Judicial Council and the Administrative Office of the Courts, are not subject to the PRA. Access to judicial administrative records and case records is governed by constitutional and common law principles established by case law, by the California Rules of Court, and by separate statutes governing certain court records.
• The California Legislature is subject to the Legislative Open Records Act.⁴

All local agencies, including school districts and any board or commission of a city, county, municipal corporation or other political subdivision.⁵

• Note: If a public body is subject to the Brown Act, it is also subject to the PRA.

The coverage of Proposition 59 (Article I, section 3(b) of the California Constitution) appears to have broader applicability than the PRA. Specifically, courts and court administrative bodies may be subject to a constitutional right of access under Proposition 59.⁶

Includes handwritings, photographs, films, sound recordings, maps, magnetic tape, computer disks – virtually any means of recording any form of communication.⁷ This includes information on officials’ personal devices, cell phones and social media accounts if it relates to the public’s business.⁸

Computer data is clearly within the definition of a public record. ⁹

• The requirement that a record relate to the conduct of the public’s business is broadly construed, and rarely contested.¹⁰
• According to the legislative history of the PRA: “This definition is intended to cover every conceivable kind of record that is involved in the governmental process…Only purely personal information unrelated to “the conduct of the public’s business” could be considered exempt from this definition, i.e., the shopping list phoned from home, the letter to a public officer from a friend which is totally void of reference to governmental activities.¹¹
• Generally includes the names of public officials and employees¹², although it may not include their home addresses and phone numbers.¹³
• Note that the names and contact information for private citizens may also be exempt from disclosure, for example when submitted for voter registration.¹⁴ In the absence of a specific exemption, the right to disclosure of such information may turn on questions such as the extent to which “the disclosure of names and addresses is necessary to allow the public to determine whether public officials have properly exercised their duties,” for example “by refraining from the arbitrary exercise of official power.”¹⁵

• Records do not necessarily have to be in the physical custody of the public agency if they are prepared, owned, or used by the agency and the agency has possession or control of the records.¹⁶

• Information retained in an electronic format must generally be made available in any electronic form in which the agency holds the information.¹⁷

• Records must generally be available for inspection during the regular office hours of the agency.¹⁸
• Procedures. Agencies may adopt reasonable procedures to be followed, but such procedures cannot unduly limit hours during which records are available during regular office hours.¹⁹ Some agencies are required to adopt written guidelines for accessibility of records, and to make those guidelines available free of charge upon a written request.²⁰
• Inspection is generally free of charge. Subject to “reasonable limits” to protect records or “prevent the copying of records from being an unreasonable burden to the orderly function of the agency and its employees,” a member of the public generally “has the right to use the requester’s equipment on those premises, without being charged any fees or costs, to photograph or otherwise copy or reproduce the record in a manner that does not require the equipment to make physical contact with the record,” unless copying would damage records or result in unauthorized access to “computer systems or secured networks.” ²¹

• You are entitled to copies of public records that are subject to disclosure.²²
• Procedures: You are not required by law to make a request in writing, but we recommend you put your request in writing anyway. It gives you a record of what was requested and establishes the date that starts the time for an agency to respond. The agency must respond to a request for public records within 10 calendar days. The time for responding can be extended by the agency for an additional 14 calendar days due to specifically defined “unusual circumstances.”²³ “No further delays are authorized by the statute.”²⁴ You are entitled to an exact copy unless it is impracticable to provide one.²⁵
• The agency may charge a fee “covering direct costs of duplication” or a “statutory fee.”²⁶
  • “Direct costs of duplication” does not include time spent searching for, retrieving, reviewing, or redacting records.²⁷
  • Direct cost may include maintenance costs and the salary of the clerk for time spent copying (essentially, what a copy shop would charge).
  • Note: Counties may be allowed, by statute, to charge fees that exceed the “direct costs of duplication,” so long as the fees do not exceed the amount reasonably necessary to recover the cost of providing the copy.²⁸ Some counties contend the relevant statute allows them to charge for time spent locating, reviewing, and redacting public records, but FAC takes the position that such charges are unlawful.²⁸ No court has yet decided that issue.
• You generally entitled to copies of documents in electronic form, although public agencies do not have to disclose “an electronic record in the electronic form in which it is held by the agency if its release would jeopardize or compromise the security or integrity of the original record or of any proprietary software in which it is maintained.”³⁰ If such an issue is raised, see if the agency can readily convert the electronic document into a static form (e.g., converting a Word file into an Adobe .pdf file). The fees that may be charged for obtaining an electronic copy vary, but are generally limited to the direct cost of providing a copy in an electronic format.³¹ While agencies may charge for the costs of data “compilation, extraction or programming,” they may not charge for staff time and other costs associated with searching for electronic records or redacting information from them.³²

• You are entitled to non-exempt portions of a record if reasonably segregable, i.e., if exempt portions can be redacted.
• Always ask to have any reasonably segregable portion provided.

• Government Code section 7922.600(a) obligates public agencies to assist the public to make focused and effective requests that reasonably describe identifiable records.
• Public agencies are required, to the extent reasonable, to do all of the following:
  • Assist the public in identifying records and information responsive to the request or purpose of the request;
  • Describe the information technology and physical location in which the records exist;
  • Provide suggestions for overcoming any practical basis for denying access to the records or information sought.
• Always include in your written PRA requests a request for assistance pursuant to Government Code section 7922.600(a)
  • In general, ask the agency to identify the records or information responsive to your request, and to describe their location.

• The PRA itself contains many exemptions permitting public agencies to withhold certain categories of records. Most of these are set out in Government Code sections 7923.600 through 7929.610. Additional exemptions are included in separate sections.
• The PRA also includes a provision exempting records the disclosure of which is exempted or prohibited under federal or other state law. Government Code section 7927.705 incorporates literally hundreds of specific statutory exemptions, most of which are listed at the end of the PRA (Government Code § 7930.000 et seq.), including, for example:
  • Rap sheets (“criminal offender record information”).³⁴
  • Medical records.³⁵
  • Strawberry marketing information.³⁶
• Note: the fact that a statute is included in the list does not mean that it necessarily creates an exemption.³⁷ You need to look at the statute to determine if it actually prevents disclosure of public records.

• The following are some of the most frequent exemptions:
  • Preliminary drafts or notes not normally retained, provided the public interest in withholding outweighs the public interest in disclosure (Government Code § 7927.500).
  • Personnel, medical, and similar files (Government Code § 7927.700). This exemption is routinely invoked when the public agency believes a request seeks information pertaining to identifiable public officials or employees that is private, sensitive or controversial. But in fact, the information may only be withheld if its disclosure “would constitute an unwarranted invasion of personal privacy.” (Government Code § 7927.700). That is a high threshold. Certain examples are discussed below.
  • Salary information: The salaries (and other cash compensation, such as bonuses and overtime pay) of specific, named public employees must generally be disclosed in response to a public records request. While public employees have a legitimate privacy interest in such information, the California Supreme Court reasoned that this interest is outweighed by the public interest in how the government spends the public’s money.³⁸ Amounts received by former government employees in the form of pension payments also must be disclosed.³⁹
  • Investigations of employee misconduct: The California courts have established a fairly liberal standard for disclosure of public records relating to complaints or investigations of misconduct by public employees or officials, except for “peace officers” or “custodial officers,” to whom different standards apply, as discussed below and in our Police Transparency Handbook.
    • They have held that there is a public policy against disclosure of “trivial or groundless charges,” but that “where the charges are found true, or discipline is imposed, the strong public policy against disclosure vanishes; this is true even where the sanction is a private reproval. In such cases, a member of the public is entitled to information about the complaint, the discipline, and the ‘information upon which it was based.’”⁴⁰
    • In they have held that “where there is reasonable cause to believe the complaint to be well founded, the right of public access to related public records exists.”⁴¹
    • With respect to high-level public servants, such as a superintendent of schools, disclosure of records relating to allegations of misconduct is required even if the charges are found not to be reliable and the official is exonerated.⁴²
• Records pertaining to pending litigation to which public agency is a party (Government Code § 7927.200(a)).
  • To qualify, the records must have been prepared for use in the litigation, but the exemption does not cover any document that is somehow related to the litigation.⁴³
  • The PRA may be used to obtain documents generated in litigation in which the requestor was a party.⁴⁴
  • The exemption terminates when the litigation is resolved.⁴⁵ Invoices showing how much an agency has spent on outside lawyers are protected from public disclosure by the attorney-client privilege until the litigation is concluded, at which time the privilege no longer bars public release.⁴⁶
  • The exemption is broader than the attorney work-product exemption; it protects any work product generated by a public agency in anticipation of litigation.⁴⁷
  • But note: records protected by the attorney-client privilege or attorney work-product doctrine may remain exempt from disclosure under Government Code section 7927.705 and the relevant provisions of the California Evidence Code or Civil Procedure Code even after the litigation is resolved.
• Law enforcement/licensing agency records of complaints, investigative, and security files (Government Code §§ 7923.600-620).
  • In general, law enforcement investigatory reports and files are not required to be made public. The most typical example of such records is police reports. However, law enforcement agencies are required to make certain categories of information public, even though those categories of information are generally contained in law enforcement investigatory files. The information required to be made public is discussed in more detail below.
  • A law enforcement agency’s own reports, notes, or findings are generally exempt from disclosure when they are generated as part of an investigation into a particular crime or crimes⁴⁸
  • Other than an agency’s own reports or notes, certain “materials that, while not on their face exempt from disclosure” can “nevertheless become exempt through inclusion in an investigatory file,” for example, a “business card” that might “reveal the name and endanger the safety of an informant” or “[r]eceipts for transportation” that might “tell the astute observer which clues the police have checked and which they have not yet found.”⁴⁹
  • The exemption for such materials included in investigatory files arises “only when the prospect of enforcement proceedings becomes concrete and definite.”⁵⁰ Therefore, any records created without enforcement or licensing purposes are not necessarily exempt.⁵¹ Once investigatory reports or file materials have become exempt, they remain permanently exempt, even after the investigation is over.⁵²
  • The CPRA requires limited disclosure of certain information from investigatory records or files.
    • Agencies must disclose certain information to “the victims of an incident, or an authorized representative thereof,” such as “the names and addresses of persons involved in, or witnesses other than confidential informants to, the incident, the description of any property involved, the date, time, and location of the incident, all diagrams, statements of the parties involved in the incident, [and] the statements of all witnesses, other than confidential informants,” but not “the analysis or conclusions of the investigating officer.⁵³
    • Agencies must disclose certain information about people arrested and the “factual circumstances surrounding the arrest,” unless “disclosure of a particular item of information would endanger the safety of a person involved in an investigation or would endanger the successful completion of the investigation or a related investigation.⁵⁴ The Court of Appeal has held that this provision is limited to “contemporaneous” arrest information.⁵⁵
    • Unless “disclosure of a particular item of information would endanger the safety of a person involved in an investigation or would endanger the successful completion of the investigation or a related investigation,” agencies must disclose “the time, substance, and location of all complaints or requests for assistance received by the agency and the time and nature of the response thereto,” including various details listed in the statute.⁵⁶ This provision is not limited to contemporaneous information.⁵⁷
    • If the information is sought “for a scholarly, journalistic, political, or governmental purpose” or “for investigation purposes by a licensed private investigator,” agencies must disclose “the current address of every individual arrested by the agency” or “the current address of the victim of a crime,” with certain exceptions.⁵⁸
  • In 2018, the California Legislature passed two important police transparency bills.
    • Senate Bill 1421 expanded public access to police records involving: (1) discharge of a firearm at a person, (2) uses of force resulting in great bodily injury or death, (3) sustained findings that an officer committed sexual assault against a member of the public, (4) sustained findings of officer dishonesty.⁵⁹ The Court of Appeal has held that it does not matter which agency initially created the records — if an agency has in its possession records subject to disclosure, it must disclose them even if it did not initially create them or the records pertain to officers from a different agency.⁶⁰ Records created prior to the bill’s passage must also be disclosed.⁶¹
    • Assembly Bill 748 requires disclosure of audio and video recordings of “critical incidents.”⁶² A “critical incident” is defined as: (i) An incident involving the discharge of a firearm at a person by a peace officer or custodial officer; or (ii) An incident in which the use of force by a peace officer or custodial officer against a person resulted in death or in great bodily injury.⁶³ Please see FAC’s Police Transparency Guide for further details.
  • In 2021, the California Legislature passed Senate Bill 16 that further expanded the types of incidents as to which records must be disclosed, to include sustained findings that an officer:
    • Used unreasonable or excessive force;
    • Failed to intervene against another officer using unreasonable or excessive force;
    • Made an unlawful arrest or unlawful search; or
    • Engaged in conduct involving prejudice or discrimination on the basis of certain legally protected classes.
• Catch-all exemptions
  • Government Code § 7922.000 is a catchall provision that exempts from disclosure any records if “on the facts of the particular case the public interest served by not making the record public clearly outweighs the public interest served by disclosure of the record.”
  • Deliberative process. The catchall exemption includes the concept of “deliberative process,” allowing nondisclosure of records revealing the deliberations of agency officials in some circumstances. This doctrine was created by the California Supreme Court in 1991, in a case involving a request for the calendars of then-Governor Deukmejian, and has since been applied in other contexts, including records of phone calls by city council members, and records regarding applications to the Government for appointment to fill vacancies on county boards of supervisors. According to the Supreme Court, “the key question in every case is whether disclosure of the materials would expose an agency’s decision-making process in such a way as to discourage candid discussion with the agency and thereby undermine the agency’s ability to perform its functions.”⁶⁴

• Despite the existence of an exemption, an agency may generally disclose records unless disclosure is prohibited by law.⁶⁵
• Also, if an agency has intentionally disclosed the information sought, it may have waived the right to claim an exemption (Government Code § 7921.505(b))