Title
Report to the Commission concerning Public Record Act (PRA) Requests that are Referred to the City Attorney’s Office
Body
To: Chair Schwartz and Members of the Open Government Commission
From: Michael Roush, Chief Assistant City Attorney
Summary
As recommended by the Open Government Commission (Commission) and staff, City Council recently adopted a number of amendments to the Sunshine Ordinance, including an amendment to Section2-92.2, concerning responses to Public Records Act requests. To be consistent those amendments, the form of the reports that will be provided to the Commission concerning Public Records Act requests referred to the City Attorney’s Office will change. Critical information concerning required times to respond will remain in the reports.
Background
At the Commission’s February 3, 2020 meeting, staff presented a report concerning the responses to Public Record Act requests that had been referred to the City Attorney’s Office. The report set forth various categories: Requesting Party; Nature of Request; Original Department and Date [the request had been] Received; Date [the request] received by the City Attorney’s Office; Date [the request was] Acknowledged; Date [the record(s) were] Produced or Date of Response [to the request]; Pages Reviewed; and Pages Produced (when records had been produced). Some of the information were asterisked indicating (1) some or all of the records requested were not produced because they were exempt from disclosure under the Public Records Act or (2) there were no records responsive to the request.
The Commission expressed appreciation for the report and requested that additional columns be added to show the number of days that elapsed between when the request was first received [Column 3] and when the request was acknowledged [Column 5] and the number of days that elapsed between when the request was first received [Column 2] and the date the records were produced or date of the response, e.g., no records produced because they were exempt from disclosure or because there were no responsive records [Column 6].
On February 18, 2020, City Council adopted an ordinance amending various sections of the Sunshine Ordinance. For the most part, the Commission had recommended to the Council that the amendments be adopted. One such recommendation concerned an amendment to subsection c of Section 2-92.2 concerning the responsibilities of staff following receipt of a public record. The Commission recommended and Council amended that subsection to say, simply, “Every Custodian of Records shall following receipt of a request for a Public Record respond to such request within the time frames and in the manner set forth in the Public Records Act, except as otherwise provided for in this Ordinance.”
To be consistent with that amendment, the form of the reports to be provided to the Commission concerning responses to Public Records Act request that have been referred to the City Attorney’s Office will need to be revised. Critical information to demonstrate compliance (or not) with the time frames of the Public Records Act (now embedded in the Sunshine Ordinance) will, of course, remain in the reports.
Discussion
The Public Records Act requires that within 10 days of receipt of request, the agency shall determine whether the request, in whole or in part, seeks copies of disclosable documents and shall promptly notify the person making the request of the determination and reasons for such determination. Gov. Code, section 6253 (c). In unusual circumstances (as that term is defined in paragraphs (1) through (4) of subsection (c) of Gov. Code Section 6253), the agency may extend the 10 day period in which the local agency must make the determination whether the requested records will be disclosed (and the reasons therefor) by providing written notice to the requestor of the reasons for the extension and the date the determination is expected to be made. Id. The extension, however, cannot exceed 14 days. Id. When the agency makes the determination whether some or all of the records are disclosable, either within the first 10 days or within the 14 day extension period, the agency shall state the estimated date and time when the records will be available. Id.
Accordingly, there is no statutory provision (and nothing in the Sunshine Ordinance to the contrary) concerning an agency’s providing a written acknowledgment as such to the requestor nor any express requirements when the records themselves must be produced. Rather, the only requirement is for the agency within 10 days (or within the extension period) to inform the requestor whether there are disclosable documents and, if so, the estimated date and time when the records will be available.
Of course, as a practical matter, in the vast majority of Public Record Act requests, the records themselves are provided to the requestor well within the 10 day window, collapsing, as it were, the determination that the records are disclosable and production of the documents themselves.
In light of these changes, the spread sheet of the report concerning those items referred to the City Attorney’s Office will be revised as shown on the attached. It will still have the Requesting Party, the Nature of the Request and the date of the request for the records, the department that originally received the request, the number of pages reviewed (if any) and the number of pages produced (if any).
What will be added is the “Determination Date”, i.e., the date the requestor is informed whether there are documents in response to the request, whether all or some of the records are disclosable [and, if not, why not], and the estimated date when the documents, if any, will be produced, and the number of days between when the request was received and the date of the determination. If the number of such days exceeds 10, then the report will reflect in the notes the date the agency informed the requestor that additional time to make a determination was needed.
The report will continue to show the date the records were produced, if there were such records and they were not exempt from disclosure and the number of days between the date the request was received and the date the records (if any) were produced. As mentioned, there is no express statutory requirement concerning this latter number but we understand the Commission is nevertheless interested in the amount of time it takes for the City to produce records in response to a Public Records Act request.
Where there are records but there has been a determination that some or all of the records are not disclosable, there will be, in the note section, a brief explanation as to why.
RECOMMENDATION
No action is necessary on this matter; this agenda report is for information only.