ON-LINE VERSION OF A POCKET GUIDE TO
THE CALIFORNIA
PUBLIC RECORDS ACT
California Gov't. Code §§ 6250-6268)
 
 
A SERVICE OF:
SPJ-NORTHERN CALIFORNIA CHAPTER
THE FIRST AMENDMENT PROJECT
FUNDING PROVIDED BY THE FREEDOM FORUM
 
FOR MORE INFORMATION OR HELP:
 
First Amendment Project: 510/208-7744
SPJ-Northern California Chapter: 415/703-7902
Calif. First Amendment Coalition: 916/447-2322
_________________________________________________________________
 
                           HOW TO USE THIS GUIDE
 
This on-line version of the pocket guide is intended to be a
quick reference for journalists and citizens on the Public
Records Act as of April 1, 1994.  It does not substitute for
research or consultation with a lawyer on detailed questions.  It
is intended to address the most common access problems but can't
cover everything.  The guide contains five sections:
 
     Basics: what agencies, what records
 
     Your rights under the Public Records Act
 
     Common types of records that are not public
 
     What To Do...tips in seeking public records
 
     How to enforce your rights
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THE BASICS:
 
Agencies Covered
 
     All State and local agencies are covered by the PRA except
     courts and the Legislature (§6252(a),(b)).
 
     This includes any "board, commission or agency" created by
     the agency (including advisory boards), and any private,
     non-profit entity delegated legal authority to carry out
     public functions if supported solely by public funds
     (§6252(b)).
 
Records Covered
 
     All records of public agencies are open for inspection and
     copying during office hours (§§6253(a), 6256).
 
     "Records" includes every means of recording or communication
     or representation: any writing, picture, sound or symbol,
     whether paper, film, magnetic media or other (§6252(e)).
     Employees' private papers incidentally at the office are not
     records unless they "relat[e] to the conduct of the public's
     business [and are] prepared, owned, used or retained by the
     agency" (§6252(d)).
 
     Computer data are included in the definition of "records"
     (§6252(e)). "Nothing in this section is intended to affect
     the public record status of information merely because it is
     stored in a computer. Public records stored in a computer
     shall be disclosed..." (§6254.9(d)). BUT: computer software
     developed by an agency is not a public record (§6254.9(a)),
     and the form in which data are provided is left to agency
     discretion (§6256). Legislative records are now available to
     all in electronic form (Govt. Code § 10248).
 
     The PRA covers only records that already exist.  A PRA
     request can not require an agency to create a document, list
     or compilation.
 
YOUR RIGHTS UNDER THE PRA:
 
     Access: A written request is not required.  You have a right
     to immediate access to inspect records during business hours
     (§6253(a)). But a written request helps if you anticipate
     trouble.
 
     Copies: You have a right to an exact copy upon request
     (§§6256, 6257). But a copy request triggers a 10-day waiting
     period for the agency to decide whether copies will be
     provided, although you must be notified "immediately" of a
     decision and its basis (§6256).
 
     Ask for both: A written request should ask for both access
     under §6253(a) and copies under §§6256, 6257. After
     inspection you can reduce the copy request.
 
     Cost: For copies an agency may charge only "direct costs of
     duplication" (§6257), usually 6-25 cents per page. An agency
     may not include charges or fees to search, review, redact or
     copy records (North County Parents, etc. v. Dept. of
     Education, 93 D.A.R. 3224 (4th DCA, 3/10/94). You can limit
     your initially authorized copy cost (e.g., $50). Access
     under §6253(a) is free.
 
     Timing: Access (§6253(a)) is allowed during business hours.
     Though the agency need not drop everything to respond, a
     decision on whether your request will be honored should be
     immediate.  Delay is prohibited: "nothing in this chapter
     shall be construed to permit an agency to delay access."
     (§6256.2.)
 
     Extensions: The 10-day period for a decision on copies may
     be extended once by the agency head. It must state the
     reason for the delay and a date for the decision (§6256.1).
     Permitted reasons: gathering records from off-site locales;
     voluminous requests; need to consult with other agencies
     (§6256.1(a)-(c)).
 
     Responses to a request must be in writing if an agency
     rejects any part of a request (§6256.2) or gives itself an
     extension for copies (§6256.1).
 
     Deletions are required if part of a request or a particular
     document is exempt.  Nonexempt portions must be provided
     (§6257).
 
     Selective disclosure is prohibited.  Once disclosed, a
     record is public for all (§6254.5).
 
RECORDS EXEMPT FROM DISCLOSURE:
 
     The following examples are exempt in whole or in part. This
does not mean that they are not public records or that the agency
is prohibited from releasing them. It means that the agency may
withhold them. An agency may also allow greater access (§6253.1).
 
     Drafts: preliminary drafts, notes and memos, but only if
"not retained...in the ordinary course of business" and "the
public interest in withholding clearly outweighs the public
interest in disclosure" (§6254(a)).
 
     Draft reports are not exempt if the agency personnel
normally keep copies on file. No further analysis is required.
(CBE v. Dept of Food and Agriculture, 171 CA3d 704 (1985)). Even
if not normally kept, the agency must also show a compelling
public interest in nondisclosure.
 
     If the draft report contains both facts and a preliminary
staff recommendation, only the latter may be withheld, while
factual matters must be disclosed (CBE v. Dept of Food and
Agriculture).
 
     A report may not be withheld on the basis that, e.g., the
City Council has not yet seen it. When it goes to a majority of
Council members, it becomes a public record under the Brown Act,
unless covered by an exception for a closed session (Govt. Code
§54957.5).
 
Litigation: Documents involving litigation may be withheld only
if: the agency is a party AND only until the matter is finally
resolved or settled (§6254(b)).
BUT, the complaint (or claim under the Tort Claims Act) must be
disclosed (71 Ops.Atty.Gen. 235 (1988)).
 
     The exception is limited to records specifically created by
the lawyer or agency (attorney work-product), or between the
agency and lawyer (attorney-client), for the litigation. An
agency may not withhold records predating the litigation, nor
everything that "relates" to the litigation, nor, e.g., staff
reports or minutes for a project whose approval results in a
lawsuit (71 Ops.Atty.Gen. 235 (1988); 87 Ops.Atty.Gen. 304
(1988)).
 
     Settlement records are public (§6254(b); Freedom Newspapers
v. Orange County, 158 CA3d 893 (1984)).
 
Personnel: "Personnel, medical, or similar files" may be withheld
if disclosure "would constitute an unwarranted invasion of
personal privacy." This is not a generalized "personnel"
exception for an entire file, only intimate, private details of a
person's life (68 Ops.AG 73 (1985)). There are special rules for
police files (Ev. Code §1043).
 
     BUT "[e]very employment contract between [an]  agency and
any public official or public employee is a public record"
(§6254.8). Public contracts are not in the personnel exception
(San Diego Union v. City Council, 146 CA3d 947 (1983)).
 
Confidential: Data submitted confidentially, or made secret by
law, may be withheld (§6254(d)). E.g.: financial data to agencies
responsible for banks, securities or insurance companies
(§6254(d)); income tax data (6254(i), Rev.& Tax Code §§19572,
19133, 15619); financial data required for a license, certificate
or permit (§6254(n)).
 
     BUT, financial data used for a public decision, e.g., to set
city garbage rates, is public (San Diego Union v. City Council of
San Diego, 146 CA3d 947 (1983)).
 
Police: Law enforcement records may be withheld (§6254(f)). BUT
the "police blotter" is public, with names and details of
arrests, warrants, booking, bail, charges and hearings
(§6254(f)(1)), and requests for assistance, including time,
occurrence, crime and response. (§6254(f)(2)). Victim names are
not public for most sex crimes, child endangerment, spousal
abuse, or interference with civil rights (§6254(f)(2)).  Rap
sheets are not public (Penal Code §§11075, 11105 and 11300).
"Investigative files" may be withheld, even after an
investigation is complete (§6254(f); Williams v. Superior Court,
5 Cal.4th 341 (1993)).
 
Also exempt from disclosure:
 
Test material for exams (§6254(g));
library circulation records (§§6254(j), 6267);
disclosures prohibited under other laws (§6254(k));
labor negotiation instructions (§6254(p), (q));
home addresses: DMV (§6254.1(b)); public housing (§6254.1(a));
state employees (and  phone numbers, §6254.3); active and retired
court officials, some lawyers and police (and their phone numbers
(§6254.4)); applicants for collection agency licenses (§6254(v));
applicants for concealed weapons permits in limited circumstances
(§6254(u));
voting records: petitions for initiatives, referenda and recalls
(§6253.5); identities on bilingual ballots (§6253.6);
real estate appraisals for agencies considering property
transactions (§6254(h));
attorney-client communications, even if an agency is the client,
BUT the agency (not the lawyer), may decide to waive it;
income tax information on most individuals and businesses is
confidential, but nonprofit corporate returns are public at the
Attorney General's Registry of Charitable Trusts;
family records showing adoptions (Civil Code §227), some data in
birth certificates (Health & Safety Code §10125.5) and welfare
records (Welfare & Inst. Code §§11478, 10850).
_________________________________________________________________
 
TIPS IN MAKING YOUR REQUEST
 
     Ask informally before invoking the law.
     Try asking more than one agency.
     Always ask for immediate access and copies.
     Use this guide to cite the law in your request.
     You needn't give a reason for asking for records.
     Put date limits on any search.
     Don't ask the agency to create a record or a list.
     Limit pre-authorized costs; pay only copy costs.
     Demand a written response in 10 days.
________________________________________________________________
 
WHAT TO DO:
 
IF YOUR REQUEST IS REFUSED
 
     State your rights, using this guide, and ask to speak to the
     highest-ranking official.
 
     Keep a log of whom you spoke with, what reason you were
     given, and get a denial in writing.
 
     Write a story or letter to the editor about a denial.
 
     Consult your supervisor or attorney or call (see phone
     numbers at top of this file) if you need help.
 
TO ENFORCE THE PUBLIC RECORDS ACT
 
     An action may be filed in the county where the records are
     located, with a hearing set as soon as practicable (§§6258,
     6259(a)).
 
     If you win, the agency must pay your costs and attorney fees
     (§6259(d); Belth v. Garamendi 232 CA3d 896 (1991)).