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Practical Considerations for Public Records Act Requests
The California Public Records Act (“CPRA”) strikes a balance between the need for privacy in certain records and the people’s interest in transparent government. The reality of the balance is that it may – and often does – weigh heavily upon agencies that must respond to CPRA requests. This blog post discusses several topics related to CPRA requests, including the requirements of the Act, record retention policies, identifying records that are subject to disclosure, and challenges related to redactions. By understanding these topics ahead of time, agencies will be better equipped to respond successfully to CPRA requests.
The CPRA (Gov. Code § 6250, et seq.) applies to state and local agencies. It defines “public records” broadly to include any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics. There are certain, limited exceptions (discussed below). However, the broad category of items potentially subject to disclosure shows the Act’s inclination toward transparency.
Agencies have 10 days to determine whether any part of a request seeks records that are disclosable, and the agency must promptly give written notice of the determination to the requesting party. Agencies may extend the deadline by up to 14 days in “unusual circumstances,” which may include situations where the records are difficult to access, especially voluminous, or not available in a producible format. The deadline only applies to giving notice of the determination – not to providing the records themselves. Nevertheless, any responsive records must be provided “promptly,” and the Act prohibits agencies from delaying or obstructing the inspection or copying of public records.
Requesting parties, however, do not have free reign under the Act. A records request must reasonably describe an identifiable record or records. Requests that do not reasonably describe the records sought may be subject to objection or denial, although agencies should only do so in good faith. Agencies may also charge fees to cover the costs of duplication or applicable statutory fees.
Responsive Materials and Record Retention Policies
“Record Retention Policy” is a commonly accepted misnomer for policies that dictate when and how agencies dispose of old records. Timing can become a critical issue in CPRA requests, because agencies typically dispose of old records on an ongoing basis. If an agency receives a record request, it has an obligation to provide any responsive records to the requesting party. This obligation includes preserving responsive records from disposal. Accordingly, public agencies should implement a system that flags potentially responsive records before they are lost. It is especially important for larger agencies to have a system in place, because the employee who receives the CPRA request may not belong to the same department or unit that disposes of records according to the record retention policy.
Subject to Disclosure? Exemptions, Confidentiality, and Privilege
Part of assembling responsive records is winnowing out any records that are not subject to disclosure. The CPRA describes over a dozen categories of exempted records. The categories range from records of testing materials used in licensing or employment exams, to certain geological or geophysical data, to preliminary drafts, notes, or memoranda that are not retained in the normal course of business. Notably, the Act exempts from disclosure personnel, medical, or similar files if the disclosure would constitute an unwarranted invasion of personal privacy.
In addition to the Act, state or federal law may exempt a record from disclosure. Attorney-client privileged communications, attorney work product, deliberative process communications, and records subject to the official information privilege are not subject to disclosure. To an extent, peace officer personnel records are also protected from disclosure – although state law has identified several categories of peace officer records that are subject to disclosure. Whether a particular record falls within an exempted category can form a significant part of the review. The review process takes time, but it is necessary to ensure that responsive information is produced and exempted information is withheld.
Logistical Impact of Redactions
A record that contains non-disclosable information may still be subject to production. Agencies have a duty to redact or remove non-responsive portions of an otherwise-responsive record where the responsive portions may be reasonably separated. Redaction means increased time and cost. It requires additional levels of review to ensure that sensitive information is properly removed but responsive information is preserved.
Because the Act defines the term, “writing” broadly to include mediums like photographs, audio recordings, or video footage, redaction may require specialized services to handle alternative formats. For example, consider a video that contains both responsive information and protected information. The video would potentially need to be reviewed once to identify any responsive material, once to apply redactions, and once more to ensure that the sensitive information has been removed and the responsive information is still present.
Redaction shows the importance of managing the expectations of the requesting party. Many requestors quickly grow impatient. They do not always understand the efforts that go into assembling and preparing records for a CPRA response. Requestors may also react negatively to the redactions themselves if a requestor believes that responsive information has been removed. Agencies should understand these possibilities and consider ways to address them. Cooperation between the agency and the requesting party helps fulfill the goals of the CPRA and may prevent future disputes.
Trusted legal counsel can help in navigating issues related to CPRA matters.