The California Public Records Act (California Government Code sections 6250-6276.48, “PRA”) states that all public records in California are open to inspection and copying by anyone. However, the exercise of that right takes a little more nuance than just citing the statute to a state, local, or quasi-municipal agency.
So, we sat down with our very own paralegal, Rachelle Allison-Lamb, to get some tips on how one can acquire the requested documents as quickly and painless as possible, and not letting the agency take advantage of you. Ms. Allison-Lamb provided us with the following top 15 list on completing a PRA request.
- Know Your Agency. Research the agency’s website to see what their preferred method is for processing a PRA Request. Some agencies have guidelines or forms and an address to send the requests. The larger the agency, the more likely it has an established procedure for fielding and processing requests. It may even have a designated individual with whom you will be working with directly. Or, the agency may have its own legal advisor with whom you can keep in the loop as well while the agency staff member attempts to satisfy your request. “Really, it is better to know this information in advance than after the fact,” explains Allison-Lamb.
- Know the Law. If the agency is small (i.e. for a local government, etc.) there is a chance that they rarely field PRA Requests. Thus, not only may they have no process or contact individual, they may not even be aware of their responsibilities under the law. So, for these kinds of requests, it is important to make sure that you identify those responsibilities clearly and with legal authority attached. So, for example, while you will always indicate in the request that you are requesting documents or access to documents based on the California Public Records Act, Government Code section 6250 et seq., you will also want to make sure to specify that the agency has a ten-day deadline to respond under the law. “If you do not tell them about the ten-day deadline, more often than not, you will not be getting a response in ten days,” added Allison-Lamb.
- … But Don’t Overdo it. While legal language can be helpful, there is often a thin line between being helpful and turning into legal goobledygook. So, the focus should be on the specific requests. The legal support for the requests should be kept to the minimum of instructing your recipient on what they have to do and why. “I try to keep the request straight-forward and only bring the citations to the law when following-up,” stated Allison-Lamb.
- Make a Reasonable, Focused Request. “Please specify the time period for the documents, to the month, day, and year,” indicated Allison-Lamb. For example, January 1, 2010 through December 31, 2012. Know of what documents are not available – “privileged documents, work product, juvenile information, victim information, personnel files,” Allison-Lamb listed – to establish reasonable expectations to prevent delays in obtaining “obtainable” records.
- Specify the Documents. You have to be able to provide enough information for the agency to identify and understand what it is you are seeking so that may search their files for the information. So do not try to hide the ball. Rather, it is in your interest to give as much information as possible to ensure that what is delivered is a manageable and useful response. You are not limited in the number of your requests. So, aim small, and then expand the scope as the responses come in.
- Trust but Verify. “Records” include all communications related to public business “regardless of physical form or characteristics, including any writing, picture, sound, or symbol, whether paper,…, magnetic or other media.” Electronic records are included, but software may be exempt. So, if your request comes back with only a single type or form of “record”, make sure to double-check with the agency that they did not forget to check email communications or image files. “I try to specify particular document types I am wanting in response. However, if I do not know how the information was communicated, why would I want to limit my request in such a fashion?” questioned Allison-Lamb.
- Contemplate Inspection. Depending upon your situation – and geographical location in proximity to the agency – asking to inspect the to-be-produced documents first might make the most sense. Sometimes, you may be able to get a better sense of whether you and the agency official attempting to satisfy your PRA request are on the same page by looking and touching what it is they are finding. The inspection may also provide you with an opportunity to put a face with a voice or an email address you have been dealing with. “It may just spark a conversation which leads to more clarifying information for you or for the public official,” added Allison-Lamb.
- Set a Reminder to Follow-Up. The agencies do not always meet the 10-day deadline – “I am not aware of one who has,” Allison-Lamb said with a smile. So, make sure to calendar it and follow-up if nothing has come in fifteen days. You will want to make sure that you document this in writing in case you later need to prosecute your rights under the law by way of writ of mandate.
- Go electronic. If you receive a response from the agency indicating that the costs to produce the documents, you can contact them to see if you can obtain an electronic version to avoid the costs of copying. Some agencies will comply; others simply have not gone paperless yet, and so you may have to bite-the-bullet on the copying costs.
- Read the Response. Oftentimes, the agency will respond to the request by first electing an extension (to which they are entitled to under the law). Then, they will sometimes respond by indicating (1) whether or not they have disclosable records responsive to the request, (2) when they will be first made available for inspection, (3) the costs for copying and method of payment, and (4) what, if any, records are exempt from disclosure and why. All of this is useful information for setting expectations and determining what, if anything, needs to be challenged or changed in the request. “This is an important part of my job – to highlight anything I know that the attorney is going to want to see,” added Ms. Allison-Lamb.
- Do Not be Discouraged. You may get a response that says no records have been located. Try again. Review your request and make adjustments to get documents that can be located. If the agency has a contact person or someone signed the correspondence indicating no documents were found, contact them directly and see what needs to be changed, if anything, to acquire the appropriate records. “Be humble, courteous, and respectful. Oftentimes, you will get a pointer or two on how the request can be tweaked to get responsive documents,” stated Allison-Lamb.
- Do Not be Dissuaded. The agency may respond that there are millions of documents responsive. In this instance, it is wise to review your date range and try a smaller period. If this does not work then you can narrow your search based on the type of documents you are looking for.
- Do Not be Deceived. An agency may not request fees for searching, reviewing, or deletion of records. Government Code Section 6253(b) explains that upon payment of fees covering direct costs of duplication and statutory fees, the documents will be produced. Therefore, an agency may not request payment for employee time to locate records. If this happens, you can reply to the agency and explain the code section and that employee time to locate the records is not covered under the statute. If you still have issues, you can ask to speak to a higher agency official. If this is still an issue, you can pursue the matter in court by filing a writ of mandate against the agency. “If you win, the agency has to pay the attorney’s fees,” Allison-Lamb pointed out.
- Get it in Writing. The PRA requires that the denial be in writing. Check the reasons given for denial to see if they’re valid. If the records you’re requesting fall within one of the PRA exemptions, the reasons are typically valid. “However, again, this is something that I would check with the attorney. Sometimes, the agency misinterprets or expands the scope of the exemption to include things clearly outside of it under the law. The attorney will be able to tell or knows where to go to see if their is any case law on point,” added Allison-Lamb.
- Exemptions are Limited. The PRA requires that the agency supply any segregable portions of exempt records, and any records that you’ve requested that don’t fall within the exemption. So, if you are denied, make sure to ask the agency to double-check the documents to determine whether any records that are exempt have portions that are non-exempt that can be produced. You are entitled to them.
And when all else fails, what does Ms. Allison-Lamb do? “I email the assigned attorney in our office, explain the predicament, my suggested solution, and seek guidance,” explained Allison-Lamb. “By that point, I have already exhausted speaking to my agency contact and I really need to know whether we should continue to fight or re-examine the request. More often than not, the attorney provides me with a suggestion or two to make a final attempt to resolve the impasse. And if that fails, we then go back to our client to find out if they want us to fight.”