A Bit More on Public Records Requests

Public records actGovernment code section 6250-6270 (a.k.a. California Public Records Act) requires that public agencies make all records generated in the course of conducting public business available to request. We recently filed our own request to understand the bases for the Beverly Hills Traffic & Parking Commission’s recommendation of only three (of five) bike routes. We got to thinking more about how to make public records requests effective.

The California Public Records Act is part of California’s ‘sunshine laws’ intended to open the business of state and local government and public agencies to public inspection. Under progressive-era good government regulations like the Brown Act, public meetings have to be noticed well in advance and the public given a good-faith opportunity to participate. But sometimes the business of governing happens out of sight, and when it does the records request is a handy way of bringing it to light.

Now Better Bike keeps a close eye on Beverly Hills meeting agendas. Very frequently we call out city missteps that undermine the spirit of good government; too often we find that public meetings aren’t noticed online in advance (or not noticed at all) and that supporting documents may not be attached to agendas. When we ask we’re told that they are available in paper at the public library, for example, which comports with the letter if not the spirit of the sunshine laws. But we know that we can fall back on the records request as a last recourse.

So we filed our first request. We were interested to know 1) what material might have been provided to the Traffic & Parking Commission that we didn’t see, including bike-involved collision data; 2) whether notes, transcriptions, or summaries of public comments made it to the Bike Plan Update Committee and the commission; and 3) if descriptive information was provided to commission about bike lanes, sharrows, and other improvements. We should know in a couple of weeks what was made available to decisionmakers.

Overview of the California Public Records Act

The California Public Records Act stipulates that ‘records’ include:

handwriting, typewriting, printing, photostating, photographing, photocopying, transmitting by electronic mail or facsimile, and every other means of recording upon any tangible thing any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof, and any record thereby created, regardless of the manner in which the record has been stored. (Section 6252).

Agencies must make such records available for inspection and, if requested, provide copies at the petitioner’s expense. (Practices seem to vary!) So if you request to inspect records you’re not obligated to pay for copies. Of course, as a taxpayer you’ve already paid for the material to be generated in the first place, so help yourself to viewing it for free! And note that an agency cannot charge for staff time in searching simply to comply with the request.

Cost may be incurred when COPIES are requested, however. But agencies are prohibited from charging more than the “direct costs of duplication.” In practice the costs are low: Beverly Hills charges $.40 for the first page and $.10 for each additional page. Malibu provides an elaborate fee schedule, and at $1 apiece color copies can add up. An agency can bill for time to pull records together from a computer database, however, but in practice much of what most will request is already prepared and just waiting on a hard drive to see the light of day.

The California Public Records Act presumes disclosure, however, and an agency must justify withholding a record. It must be exempt under the law or may be withheld if “public interest [is] served by not disclosing the record.” Whichever the case, the document’s existence must be confirmed and the reason for withholding expressed in writing. Your recourse is bring the matter to court to compel the agency to “show cause” to support its decision.

Other important points about the legislation to keep in mind:

  • An agency must respond within 10 days with a date of availability or provide good reason for an extension of not more than 14 additional days;
  • If requested records are not available or otherwise not subject to release under the law (e.g., draft notes), the agency must respond in writing;
  • No agency may hide behind fake barriers to the release of non-exempt material and must assist the petitioner with the request in order to facilitate production.

The last point is critical: the agency may not force petitioner to be unduly specific in order to deny a request. You’re not obligated to identify an exact document title or date; instead the agency must assist you in making “a focused and effective request” or otherwise “provide suggestions for overcoming any practical basis for denying access to the records or information sought.”

We wanted to use the law effectively, but we at Better Bike are not attorneys. Nor are we experts in public governance. But we do recognize the key points of the legislation. Let us offer tips from our experience working with our public records request.

By way of a preface, we should note that it’s always best to informally for the material. Often cities will make the information available because it it accessible and later it may be more troublesome to deal with a formal request. We chose to make our request formal because we were interested not in the breadth of information available but because we wanted to know specifically what information was provided to decision-makers.

First, decide whether you need a copy or need only inspect it. The difference is the potential cost that will vary with the type of records and records volume. Remember, inspection is always free. Copies are priced according to a local fee schedule (often by the page) while electronic records may incur a cost to assemble for delivery. We chose to inspect and if necessary later ask for a copy.

Second, be specific and indicative as to your purpose. This will help the agency meet your request. In our request, we asked for documents related to specific meeting dates. Where more general information was requested, tried described our purpose (material provided to the Traffic & Parking Commission prior to its recommendation of bike routes).

If you find yourself in Beverly Hills submitting a public records request, let us know how the city responded. And check back here to find out how the city met our request for more information concerning the Bike Route Pilot Project process.