Table of Contents

1. Overview
2. The Law
3. Resources
4. Stats

Overview

• 10 day response time among the shortest
• No formal appeals process, requiring a lawsuit
• “Purely personal” exemption can limit access to agency records

Seeing as that the federal Freedom of Information Act was largely the result of efforts by Congressman John Moss of California, it should come as no surprise that the state was one of the first to enact a state-level public records law. It should come as a bit of surprise, however, that the law is a frustrating combination of good ideas with no enforcement.

Agencies are required to “comply” with a 10 day time frame, which puts it among the speediest states – assuming you get a clerk who knows the law and is interested in following it. A lack of any formal appeals process means an agency faces no consequences for a violation, unless you’re willing to sue. Fortunately, California does offer the opportunity to recoup attorney’s fees if the requester succeeds on “any significant issue.”

While that’s fairly straightforward in cases where a agency hasn’t responded in the allotted time frame, the law’s unclear language makes that more difficult when fighting an exemption. Rather than extend towards all records created by an agency, the law stipulates that the records must be “relating to the conduct of the public’s business,” and exempts “purely personal” information that happens to be on a public account. Though an agency must cite their reasoning, a broad “outweighing the public interest” catchall makes it tough to build a convincing case.

Despite these challenges (and due to the lack of any alternative), public records lawsuits are common – in fact, in 2013, citing the “tens of millions” the state was spending on the law annually, in 2013 the legislature added a measure to the budget that would gut the law entirely, turning it into “best practices.” Thanks to a massive outcry by journalists, the measure was defeated.

The Law

• Response within 10 days.
• Applies to the executive branch and state agencies
• No residency requirement.
• No administrative appeal option.

Supplemental

Definition of public records - Cal. Gov’t Code § 6252(e)

Constitution of the State of California - (http://www.leginfo.ca.gov/.const/.article_1)

“(b) (1) The people have the right of access to information concerning the conduct of the people’s business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.”

The Details

Can you submit a request if you’re not a resident?

Yes. California law currently has no provision dictating a residency requirement.

To whom does this apply?

Executive?

Yes.

Judicial?

No.

Legislative?

No.

Is there a designated records custodian?

Records requests are expected to go to the body that holds the records.

“(a) Public records are open to inspection at all times during the office hours of the state or local agency and every person has a right to inspect any public record, except as hereafter provided.” Cal. Gov’t Code § 6252(e)

Who is exempted?

The Public Records Act doesn’t apply to the judicial or legislative branches

“The provisions of this chapter shall not be deemed in any manner to affect the status of judicial records as it existed immediately prior to the effective date of this section, nor to affect the rights of litigants, including parties to administrative proceedings, under the laws of discovery of this state, nor to limit or impair any rights of discovery in a criminal case.” Cal. Gov’t Code § 6260

How can requests be submitted?

In-person?

Yes.

Verbally?

Yes. However, if an oral request is denied, one should create a written record of the request and determination for one’s self and the agency, so that further opposition may be waged.

Los Angeles Times v. Alameda Corridor Transp. Authority, 88 Cal. App. 4th 1381, 107 Cal. Rptr. 2d 29 (2001)

By mail?

Yes.

By email?

Yes.

How long do they have to respond?

In-person inspection is allowed at all times the agency in question is open.

Cal. Gov’t Code § 6253(a)

Other requests must receive a response within 10 days.

“(c) Each agency, upon a request for a copy of records, 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.” Cal. Gov’t Code § 6253(c)

Are there provisions regarding the extension of response times?

Yes.

“In unusual circumstances, the time limit prescribed in this section may be extended by written notice by the head of the agency or his or her designee to the person making the request, setting forth the reasons for the extension and the date on which a determination is expected to be dispatched. No notice shall specify a date that would result in an extension for more than 14 days. ” Cal. Gov’t Code § 6253(c)

Does the agency have to give you a tracking number or estimated date of completion?

When returning a letter notifying the requester that an extension of time is necessary, the agency must provide the date on which a records are expected to be made available.

“When the agency dispatches the determination, and if the agency determines that the request seeks disclosable public records, the agency shall state the estimated date and time when the records will be made available.” Cal. Gov’t Code § 6253(c)

Can they ask why you ask?

Agencies aren’t allowed to limit disclosure based on the motivation of the request.

“This chapter does not allow limitations on access to a public record based upon the purpose for which the record is being requested, if the record is otherwise subject to disclosure.” Cal. Gov’t Code § 6257.5

What enforcement?

One may sue.

“Any person may institute proceedings for injunctive or declarative relief or writ of mandate in any court of competent jurisdiction to enforce his or her right to inspect or to receive a copy of any public record or class of public records under this chapter. The times for responsive pleadings and for hearings in these proceedings shall be set by the judge of the court with the object of securing a decision as to these matters at the earliest possible time.” Cal. Gov’t Code § 6258

Fees?

Fees may cover “direct costs of duplication.”

“(b) Except with respect to public records exempt from disclosure by express provisions of law, each state or local agency, upon a request for a copy of records that reasonably describes an identifiable record or records, shall make the records promptly available to any person upon payment of fees covering direct costs of duplication, or a statutory fee if applicable. Upon request, an exact copy shall be provided unless impracticable to do so.” Cal. Gov’t Code § 6253(b)

Are there fee waivers for media requests or those made in the public interest?

There are no provisions regarding fee waivers, though agencies are left the discretion to facilitate greater ease of access.

“(e) Except as otherwise prohibited by law, a state or local agency may adopt requirements for itself that allow for faster, more efficient, or greater access to records than prescribed by the minimum standards set forth in this chapter.” [ Cal. Gov’t Code § 6253(3)

Attorney’s fees - Can you win them?

Yes.

“(d) The court shall award court costs and reasonable attorney fees to the plaintiff should the plaintiff prevail in litigation filed pursuant to this section. The costs and fees shall be paid by the public agency of which the public official is a member or employee and shall not become a personal liability of the public official. If the court finds that the plaintiff’s case is clearly frivolous, it shall award court costs and reasonable attorney fees to the public agency.” [Cal. Gov’t Code § 6259(d)

Exemptions and Appeals

What exemptions exist?

Most exemptions are specific, save for a general provision of the law allowing for situations in which it is in the public interest to not disclose the record.

“The agency shall justify withholding any record by demonstrating that the record in question is exempt under express provisions of this chapter or that on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.” [Cal. Gov’t Code § 6255(a)

Are they mandatory or discretionary?

Exemptions may be applied at the discretion of the agency.

“Except as otherwise prohibited by law, a state or local agency may adopt requirements for itself that allow for faster, more efficient, or greater access to records than prescribed by the minimum standards set forth in this chapter.” [Cal. Gov’t Code § 6253(e)

Do they have to tell you why a portion or pages were redacted or withheld?

Yes, and elements that are not specifically exempt should be provided.

“The agency shall justify withholding any record by demonstrating that the record in question is exempt under express provisions of this chapter or that on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.” [Cal. Gov’t Code § 6255(a)

“Any reasonably segregable portion of a record shall be available for inspection by any person requesting the record after deletion of the portions that are exempted by law.” [Cal. Gov’t Code § 6253(a)

How much time do you have to appeal?

There is no administrative appeal option, though state agencies may adopt such regulations for themselves and municipalities may have adopted similar ordinances.

To whom does the appeal go?

There is no appeal option.

Can you appeal a delay?

There is no appeal option, though one may immediately turn to the courts for relief.

“Any person may institute proceedings for injunctive or declarative relief or writ of mandate in any court of competent jurisdiction to enforce his or her right to inspect or to receive a copy of any public record or class of public records under this chapter. The times for responsive pleadings and for hearings in these proceedings shall be set by the judge of the court with the object of securing a decision as to these matters at the earliest possible time.” [Cal. Gov’t Code § 6258

Do agencies have to tell you where to send your appeal?

There is no appeal option.

What if your appeal is denied?

There is no appeal option.

Where else can you turn?

The court.

Are all appeals kept officially?

There is no appeal option.