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
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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).
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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.
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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)).