A GUIDE TO THE CALIFORNIA PUBLIC
The Public Records Act (Govt.
Code §§ 6250 - 6276.48)
is designed to give the public
access to information in possession of public
agencies: "public records are open to inspection
at all times during the office hours of the...agency
and every person has a right to inspect any
public record, except as...provided, [and to
receive] an exact copy [of] an identifiable
record" unless impracticable. (§ 6253). Specific
exceptions to disclosure are listed in sections
6253.5-6253.7, 6254, 6254.1-6254.21, 6255, 6267
and 6276; to ensure maximum access, they are
read narrowly. The agency always bears the burden
of justifying nondisclosure, and "any reasonably
segregable portion... shall be provided...after
deletion of the portions which are exempt."
All state and local agencies, including:
(1) any officer, bureau, or dept.; (2) any "board,
commission or agency" created by the agency
(including advisory boards); and (3) nonprofit
entities that are legislative bodies of a local
agency. (§ 6252(a),(b)). Many state and regional
agencies are required to have written public
record policies. A list appears in § 6253.4.
WHO’S NOT COVERED
Courts (except itemized
statements of total expenditures and disbursement).
(§§ 6252(a), 6261)
The Legislature. (§ 6252)
See Legislative Open Records Act, Govt. Code
Private, non-profit corporations
Federal agencies. See Federal
Freedom Of Information Act, 5 U.S.C. § 552.
to access laws (e.g.
Legislative Open Records
Act, IRS rules, court
cases) that permit inspection
and copying of records
of agencies not subject
to the Public Records
Act. Many local jurisdictions also have “Sunshine”
laws that grant greater
rights of access to records.
includes all forms
of communication related
to public business
"regardless of physical
form or characteristics,
including any writing,
picture, sound, or
symbol, whether paper,
fiber, magnetic, or
other media." (§ 6252(e))
are included, but
sorftware may be exempt.
Access is immediate
and allowed at all times during business hours.
(§ 6253(a)). Staff need not disrupt operations
to allow immediate access, but a decision
on whether to grant access must be prompt.
An agency may not adopt rules that limit the
hours records are open for viewing and inspection.
(§§ 6253(d); 6253.4(b))
The agency must provide
assistance by helping to identify records
and information relelvant to the request and
suggesting ways to overcome any practical
basis for denying access. (§ 6253.1)
- An agency has 10 days to decide if copies will be provided.
In "unusual" cases (request is "voluminous," seeks records held off-site,
OR requires consultation with other agencies), the agency may upon
written notice to the requestors give itself an additional 14 days
to respond. (§6253(c)) These time periods may not be used solely to
delay access to the records. (§ 6253(d))
The agency may never make
records available only in electornic form.
- Access is always free. Fees for "inspection" or "processing"
are prohibited. (§ 6253)
Copy costs are limited
to "statutory fees" set by the Legislature
(not by local ordinance) or the "direct
cost of duplication", typically 10-25 cents
per page. Charges for search, review or deletion
are not allowed. (§ 6253(b)); North County
Parents v. DOE, 23 Cal.App.4th 144 (1994).
If a request for electronic records either
(1) is for a record normally issued only periodically,
or (2) requires data compilation, extraction,
or programming, copying costs may include
the cost of the programming. (§ 6253.9(a),(b))
The agency must justify
the withholding of any record by demonstrating
that the record is exempt or that the public
interest in confidentiality outweighs the
public interest in disclosure. (§6255)
Tip: Always ask for both copies and access;
after inspection you can reduce the copy request
(and associated costs) to the materials you need.
REQUESTING PUBLIC RECORDS
Plan your request; know
what exemptions may apply.
Ask informally before invoking
the law. If necessary, use this guide to state
your rights under the Act.
Don't ask the agency to
create a record or list.
A written request is not
required, but may help if your request is
complex, or you anticipate trouble.
Put date limits on any search.
If the agency claims the
records don't exist, ask what files were searched;
offer any search clues you can.
Limit pre-authorized costs
(or ask for a cost waiver), and pay only copying
Demand a written response
within 10 days.
1. Employees' private
papers, unless they "relat[e] to the conduct
of the public's business [and are] prepared,
owned, used, or retained by the agency." (§
2. Computer software
"developed by a state or local agency...includ[ing]
computer mapping systems, computer programs,
and computer graphic systems." (§§ 6254.9(a),(b))
. Records not yet
in existence: The PRA covers only records that
already exist; an agency cannot be required
to create a record, list, or compilation. "Rolling
requests" for future-generated records are not
RECORDS EXEMPT FROM DISCLOSURE
The Act exempts certain records from disclosure
in whole or in part. This does not mean they
are not public records or that disclosure is
prohibited. An agency may withhold the records,
but can allow greater access if it wishes. (§
6253(e)). However, "selective" or "favored"
access is prohibited; once it is disclosed to
one requester, the record is public for all.
(§ 6254.5) Many categories of records are exempt,
some by the Act itself, (§§ 6254(a)-(z)) and
some by other laws (§§ 6275-6276.48). These
are confidential, even if the agency is the
client, but the agency (not the lawyer) may
waive secrecy. (§§6254(k), 6254.25, 6276.04)
Appointment calendars and
applications, phone records, and other records
which impair the deliberative process by
revealing the thought process of government
decision-makers may be withheld only
if "the public interest served by not making
the records public clearly outweighs
the public interest served by disclosure of
the records." (§ 6255; Times Mirror v. Sup.
Ct., 53 Cal.3d 1325 (1991); Rogers v.
Sup. Ct., 19 Cal.App.4th 469 (1993); CFAC
v. Sup. Ct., 67 Cal.App.4th 159 (1998)).
If the interest in secrecy does not clearly
outweigh the interest in disclosure, the
records must be disclosed, "whatever
the incidental impact on the deliberative process."
(Times Mirror v. Sup. Ct.) The agency
must explain, not merely state, why the public
interest does not favor disclosure.
Preliminary drafts, notes
and memos may be withheld only if:
1) they are "not retained...in the ordinary
course of business" and 2) "the public interest
in with-holding clearly outweighs the
public interest in dis-closure." Drafts are
not exempted if: 1) staff normally keep copies;
or 2) the report or document is final even if
a decision is not. (§6254(a)) Where a draft
contains both facts and recommendations, only
the latter may be withheld. The facts must
be disclosed. CBE v. CDFA., 171 Cal.App.3d
Home Addresses in DMV,
voter registration, gun license, public housing,
local agency utility and public employee records
are exempt, as are addresses of certain crime
victims. (§§6254(f),(u), 6254.1, 6254.3, 6254.4,
Records concerning agency
litigation are exempt, but only until
the claim is resolved or settled. The complaint,
claim, or records filed in court, records that
pre-date the suit (e.g., reports about projects
that eventually end in litigation), and settlement
records are public. (§§ 6254(b), 6254.25);
Register Div. of Freedom Newspapers, Inc.
v. Orange County, 158 Cal. App. 3d 893 (1984))
(County of Los Angeles v. Superior Court 82
Cal App. 4th 819 (2000)).
"Personnel, medical and
similar files" are exempt only if
disclosure would reveal intimate, private details
(§ 6254(c)). Employment and appointment applications
are exempt but employee contracts are not. (§6254.8)
Police Incident reports,
rap sheets and arrest records are exempt
(Penal Code §§11075, 11105, 11105.1), but information
in the "police blotter" (time and circumstances
of calls to police; name and details of arrests,
warrants, charges, hearing dates; etc.) must
be disclosed unless disclosure would endanger
an investigation of the life of an investigator.
Investigative files may be withheld,
even after an investigation is over. (Gov. Code
§ 6254(f)); Williams v. Sup. Ct. 5 Cal.
4th 337 (1993); County of L.A. v. Sup. Ct.
18 Cal. App. 4th 588 (1994). Identifying data
in police personnel files and misconduct
complaints are exempt, but disclosure
may be obtained using special procedures under
Evidence Code section 1043.
Financial data submitted
for licenses, certificates, or permits, or given
in confidence to agencies that oversee insurance,
securities, or banking firms; tax, welfare,
and family/adoption/birth records are
all exempt. (§§ 6254(d), (k), (l), 6276).