Explainer

While the California Public Records Act (CPRA) generally requires public agencies to provide access to their existing records, agencies need not create records or “generate new substantive content to respond to a PRA request.” National Lawyers Guild v. City of Hayward, 9 Cal. 5th 488, 502 (2020). See Haynie v. Superior Court, 26 Cal. 4th 1061, 1073–75 (2001) (holding agency had no duty to create a log of potentially responsive records covered by request).

The CPRA “is designed to give the public access to information in possession of public agencies. [The CPRA] itself does not undertake to prescribe what type of information a public agency may gather, nor to designate the type of records such an agency may keep, nor to provide a method of correcting such records. Its sole function is to provide for disclosure.” Los Angeles Police Dept. v. Superior Court, 65 Cal. App. 3d 661, 668 (1977). As the Court of Appeal said, “the CPRA is not a records retention statute since the CPRA lacks any provisions pertaining to records retention. The CPRA is also silent with respect to any obligation on the part of a public agency to keep any particular records or to preserve records after a public records request has been made.” City of Gilroy v. Superior Court, 96 Cal. App. 5th 818, 836 (2023). However, the California Supreme Court has granted review in City of Gilroy & may change that rule, depending on its decision.

Accordingly, “while the CPRA requires public agencies to provide access to their existing records, it does not require them to create new records to satisfy a request.” Sander v. Superior Court, 26 Cal. App. 5th 651 (2018); see also Fredericks v. Superior Court, 233 Cal. App. 4th 209, 227 (2015); Regents of University of California v. Superior Court, 222 Cal. App. 4th 383, 400 (2013). Laws outside the CPRA may impose certain requirements to create or retain records.

The CPRA is modeled on the federal Freedom of Information Act (“FOIA”). See Los Angeles County Bd. of Supervisors v. Superior Court, 2 Cal. 5th 282, 290 (2016). FOIA “does not obligate agencies to create or retain documents; it only obligates them to provide access to those which it in fact has created and retained.” Kissinger v. Reporters Comm. for Freedom of Press, 445 U.S. 136, 152 (1980). As the Supreme Court noted, the legality of withholding requested records is “gauged by the time at which the request is made since there is no FOIA obligation to retain records prior to that request.” Id. at 155 n.9.

As a result, typically “FOIA does not provide a remedy” for “destruction of documents in the normal course of an agency’s business.” Turner v. United States, 736 F.3d 274, 283 (4th Cir. 2013); see also, e.g., SafeCard Services, Inc. v. SEC, 926 F.2d 1197, 1201 (D.C. Cir. 1991) (“If the agency is no longer in possession of the document, for a reason that is not itself suspect, then the agency is not improperly withholding that document and the court will not order the agency to take further action in order to produce it.”).

However, in general, “an agency may not avoid a FOIA request by intentionally ridding itself of a requested document.” DiBacco v. United States Army, 795 F.3d 178, 192 (D.C. Cir. 2015). Therefore, generally “an agency is not shielded from liability if it intentionally transfers or destroys a document after it has been requested under FOIA.” Chambers v. United States Dept. of Interior, 568 F.3d 998, 1004 (D.C. Cir. 2009). Although it is not certain, a California court might hold the same under the CPRA.