Explainer

While the CPRA generally requires public agencies to provide access to 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).

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).

The California Supreme Court held that the CPRA by itself does not generally require agencies to retain records for any given period of time after a request is made and noted that records may be “destroyed in connection with the normal adoption, implementation, and operation of routine records retention practices and policies” established by other laws or rules, but it did not “address intentional destruction of records in other contexts that may reflect some type of deliberate misconduct.” City of Gilroy v. Superior Court, 19 Cal. 5th 38, 70 & n.20 (2026).

The CPRA is modeled on the federal Freedom of Information Act (“FOIA”), and courts may sometimes look to FOIA when interpreting the CPRA. 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.