The Law Behind a Recent Public Records Showdown

Terry Francke is general counsel for Californians Aware and Voice of OC's open government consultant.

Terry Francke is general counsel for Californians Aware and Voice of OC's open government consultant.

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During the course of the reporting on my recent story on how Santa Ana and other Southern California governments spend federal foreclosure relief dollars, my colleague Tracy Wood and I had a confrontation with a Santa Ana city official regarding when the public can demand access to public records.

It provided a window into the differing views reporters and public officials have the California Public Records Act and sunshine laws in general.

I needed to review records relating to the city’s foreclosure relief program and had contacted Shelly Landry-Bayle, the city official in charge of administering the program. Landry-Bayle wanted me to set up an appointment to review the records ten days hence.

Landry-Bayle did not specifically cite the provision in the CPRA that allows an agency ten days to respond to a request for public records. She just said that the first available time she had for me to view the records was in ten days.

I couldn’t wait that long. And Wood, who has fought public records battles in California for decades, said I didn’t have to. Cities are allowed a 10-day response period to respond to records requests when the request requires that they gather records that aren’t readily accessible, Wood said. But if the records are accessible, then the requester is not required to wait 10 days.

Wood’s position is based on the section of the law stating that “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…”

So Wood and I decided to go to city hall during normal business hours and demand to see the records. We were met by Santa Ana Assistant City Attorney Lisa Stark, who told us we had to make an appointment for another day. We held firm, citing the relevant section of the law.

Stark was none too happy with our response, and, citing Santa Ana’s policy on public records, repeatedly insisted that we come back another day. But after realizing that we weren’t going anywhere she relented and brought us the records within an hour.

So who was in the right? We feel we were, especially given that the records turned out to be readily accessible. But to be sure we posed the question to Terry Francke, our open records consultant.

Here is Francke’s response:

There is no provision in the California Public Records Act (CPRA) authorizing a public agency routinely to tell requesters to “come back in 10 days,” or words to that effect. The Act permits an agency to take no more than 10 days to determine if the requested record is open to the public, in case there is some good faith doubt on that score.

This deadline can be extended another 14 days for big multi-document requests, those that seek remotely stored documents, those seeking documents about which some other agency needs to be consulted, or those that need computer programming to make computer-stored information available.

But as a default rule, the Act states that state and local government records “are open to inspection at all times during the office hours of the state or local agency and . . . 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 . . .”

It also states that no provision of the Act, including the 10- and 14-day periods, “shall be construed to permit an agency to delay or obstruct the inspection or copying of public records.”

These legal requirements can be defeated, of course, by failing to give adequate (or any) training about the law to the public information or front counter staff most likely to be dealing with records requesters.

In fact it’s to a transparency-allergic agency’s tactical advantage to front the public with someone who knows nothing other than to say, “come back in 10 days,” because that provides a stalling period that may well frustrate the requester’s purpose-especially a journalist working on deadline.

And unfortunately, the redress provided by the Act itself is focused on outright refusals to provide access to records, and is not well designed to correct such procedural violations as a deliberate policy or practice of obstructive delay.

There is another approach, however. In 2007 we at Californians Aware conducted a survey of more than 200 police and sheriffs’ departments statewide to determine their compliance with the CPRA’s most basic requirements.

The average “grade” was an F plus, and our conclusion noted, “In this audit the most common experience was that the requester was (unlawfully) required to provide his or her identification, purpose and/or affiliation, but then left the department or office empty-handed, and at best waited one or more weeks to learn whether any information would be forthcoming at all. Most information was not forthcoming.”

A Santa Clara County resident with no connection or communication with us then filed a taxpayer action against several county departments, alleging (based on our reports) that taxpayer funds were being abused by the adoption and enforcement of public records access barriers contrary to law. The California Court of Appeal concluded that such a lawsuit was viable, and the case is now back before the trial court.

The suit seeks to compel the defendant departments to change their unlawfully obstructive policies, to provide training in the CPRA’s requirements to relevant staff, and to pay the plaintiff’s attorney fees.

This kind of litigation can be brought against any local or state agency by any taxpayer within the agency’s jurisdictional boundaries. The only requirement is a thorough documentation that the obstructive practices are the result of a persistent, deliberate policy, and not isolated aberrations.

Californians Aware will be working the with the Voice of OC to develop ways to accumulate such evidence. The procedures we come up with will be made available to anyone who wants to build a case that certain unlawful barriers against public information access are deliberate violations of the CPRA that can be corrected by a court on demand of a taxpayer.



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