Public Records Act Abuse Again

[mpallamary]

it always amazes me at why public agencies are so unfamiliar with their duties under the Public Records Act. Every week, it seems, I get a call from another surveyor or, I have to deal with this problem myself. Here is another published decision involving the City of San Diego. What makes this one great is it cites another one of my cases, as being authoritative. In that case, involving National City, they intentional destroyed the records I was seeking. That is also a published case.

From the recent court decision:

"However, bad faith is not the test. The effect of the City's inability or unwillingness to locate and produce these documents until court-ordered discovery
ensued after March 8, 2016, is tantamount to withholding requested information from a PRA request. (See Community Youth Athletic Center v. City of National City (2013) 220 Cal.App.4th 1385, 1425 ["The effect of the City's inability or unwillingness to locate the records had the same effect as withholding requested information from the public."].)"

[Warren Smith]

Fascinating read. Lots of red flags raised during the process.

[mpallamary]

No kidding. My National City case was quite incredible. The Wall Street Journal editorialized on that one.

Coincidentally, I was at the City of San Diego this morning to look at some improvement plans that had not been completed. They said I couldn't make copies. I sent the records staff copies of the law and one hour later, they emailed and said the plans were ready for pickup. Look what happened in Encinitas, attached.

[dedkad]

Coincidentally, I was at the City of San Diego this morning to look at some improvement plans that had not been completed. They said I couldn't make copies. I sent the records staff copies of the law and one hour later, they emailed and said the plans were ready for pickup. Look what happened in Encinitas, attached.

Seems to me, release of draft plans is subject to interpretation.

GOVERNMENT CODE
§ 6254. Records exempt from disclosure requirements
Except as provided in Sections 6254.7 and 6254.13, nothing in this chapter shall be construed to require disclosure of records that are any of the following:
(a) Preliminary drafts, notes, or interagency or intra-agency memoranda that are not retained by the public agency in the ordinary course of business, if the public interest in withholding those records clearly outweighs the public interest in disclosure.

[mpallamary]

Please note:

"that are not retained by the public agency in the ordinary course of business"

That is the difference.

I think the court rulings are pretty clear.

[Jim Frame]

For those familiar with the PRA: Does it cover digital public records? For example -- and this is a very timely example for me -- my county has scanned all of its record maps, but does not offer them online. (Unlike its neighbor to the south, which puts all of its record maps on the web without charge.) Frustrated yet again at having to burn an hour just to get a legible map copy, this afternoon I asked the Recorder's Office staff if I could get all of their digital map files on a hard drive that I would supply. Apparently no one has ever asked for that, as the senior clerk I spoke with looked utterly stunned that I would make such a request. Her initial response was "No, we don't do that." When I mentioned the PRA, she said that would have to go through County Counsel, and she suggested that I direct my request to the Recorder and his deputy.

Am I howling in the wilderness, or is this something covered by the PRA?

[mpallamary]

Yes, it is covered under PRA law.

[Jim Frame]

Yes, it is covered under PRA law.

Covered, but apparently not to my advantage. Delving deeper into the PRA, AG opinions and court cases, it looks to me like the Recorder can apply the same charge to digital files that they can for paper copies. In my county that means somewhere between $7.35 and $11.00 per sheet/image for map files, which means it isn't feasible for me to get digital copies of all the map books. It looks like I'm still stuck driving to the county seat and paying for paper copies every time I need a map. :(

[E_Page]

If they already have them in digital form, and you request per PRA, they have to provide them at the actual cost of providing them. Typically, that means the cost of the media they're placed on. I'm not certain if they can charge for the time of someone to copy them to that media, but I don't think so.

In El Dorado County, the Recorder charges a couple hundred for the initial set of maps, now on one or two DVDs, and then something like $15 for any updates. Not sure how the initial charge squares with the PRA - probably justified as helping to cover the costs of the original scanning efforts.

If they do not have maps already in digital form, they are not required to put them in that form for you.

[Jim Frame]

If they already have them in digital form, and you request per PRA, they have to provide them at the actual cost of providing them.

That's what I thought, until I read the fine print (emphasis is mine):

[GOV] §6253(b):

"...shall make the records promptly available to any person upon payment of fees covering direct costs of duplication, or a statutory fee if applicable."

[GOV] §27366:

"The fee for any copy of any other record or paper on file in the office of the recorder, when the copy is made by the recorder, shall be set by the board of supervisors in an amount necessary to recover the direct and indirect costs of providing the product or service or the cost of enforcing any regulation for which the fee or charge is levied."

[GOV] §54985(a):

"...a county board of supervisors shall have the authority to increase or decrease the fee or charge, that is otherwise authorized to be levied by another provision of law, in the amount reasonably necessary to recover the cost of providing any product or service or the cost of enforcing any regulation for which the fee or charge is levied."

85 Ops.Cal.Atty.Gen. 225:

"The issue to be addressed is whether under the terms of section 54985, a county board of supervisors may charge a fee for a copy of a public record that exceeds the fee amount authorized in section 6253. We conclude that the authorization of section 54985 is applicable to most fees for copies of public records."

So I think I'm probably out of luck.

[LA Stevens]

I don't think you are out of luck based upon what you posted. I would send them a PRA letter requesting all of the Record of Surveys, Parcel Maps and major Subdivision Maps be copied on to a thumb drive that you will provide and an estimate to do so.

I know this has been an issue with other agencies in the past and they all seem to cave when their feet are held to the fire. Marin used to be this way and now you can get all of the maps for a reasonable fee and an update bi-annually for about $20 and they provide the CD.

Good luck,
Larry

[Jim Frame]

I also got an informal opinion from an attorney with an environmental group who's experienced in PRA matters. He didn't think I'd get anywhere, but I guess it's worth a try.

[LA Stevens]

I think the telling sign is that when the PRA was created, it was prior to the digital age and they still required you to provide paper copies for a reasonable fee. Now since the documents have already been scanned for their convenience, they cannot overcharge you to obtain a digital copy of all of the maps. It is a minimal effort. They are not in the business to make money off the citizen, but can cover reasonable costs, if I recall.

Our County used to refuse to provide the information in the GIS, but you can download it off of the internet now.

Pallamary has had great success obtaining documents, but I don't think it has always been easy for him, until he educates them.

[Jim Frame]

My PRA request letter is going out in today's mail, along with a cc to my County Supervisor. Wish me luck!

[LA Stevens]

Good luck Jim!!!

[LS_8750]

Jim, is there any chance somebody on this forum has the records you want? Which County are you referring to?

[Jim Frame]

Jim, is there any chance somebody on this forum has the records you want? Which County are you referring to?

Yolo County. If anyone hereabouts is maintaining a digital map archive, I'm not aware of it.

[Jim Frame]

Update/non-update: I sent my PRA request letter to the Yolo County Clerk-Recorder (with cc to my district Supervisor) via First Class mail on 11/26. I've not received any response to date. I believe they're supposed to respond within 10 days, but that's long past. The 1-time 14-day extension is also about to end. Not very impressive!

[Mr. Smith]

No Jim not very encouraging, the local controlling authority has most of the power
therefore it does not pay for the local surveyor to go head on with these people who
approve or deny your client's hopes and dreams.

What you could do is task one of your junior employees to go down to where the records are kept
with a digital camera and start taking pictures and create your own data base.

Brian

[Edward M Reading]

Update/non-update: I sent my PRA request letter to the Yolo County Clerk-Recorder (with cc to my district Supervisor) via First Class mail on 11/26. I've not received any response to date. I believe they're supposed to respond within 10 days, but that's long past. The 1-time 14-day extension is also about to end. Not very impressive!

Jim,
You should push this. We take public records request very seriously here in San Luis Obispo and respond within the required 10 day window.
Ed

[Jim Frame]

Jim,
You should push this.

I intend to. An attorney friend who files a lot of PRA requests has volunteered to write a follow-up letter and cc county counsel. That ought to get their attention.

[land butcher]

Govt is getting out of hand with regard to the public records they keep. On a similar note this is from the LA Times

"The city of Inglewood has authorized the shredding of more than 100 police shooting and other internal investigation records weeks before a new state law could allow the public to access them for the first time.

The decision, made at a City Council meeting earlier this month, has troubled civil liberties advocates who were behind the state legislation, Senate Bill 1421, which takes effect Jan. 1. The law opens to the public internal investigations of officer shootings and other major uses of force, along with confirmed cases of sexual assault and lying while on duty."

https://www.latimes.com/politics/essent ... cMCDl68I70

[Jim Frame]

Follow up, or all's well that ends well:

After months of no response from the county, I got my attorney friend to talk to the County Counsel. The latter was under the impression that the matter had been handled, so he followed up with the Recorder. Apparently, sometime in March the Recorder had directed a staff member to copy the files to a thumb drive, which that staff member put in an envelope with my name on it at the public desk. The only problem was that nobody bothered to tell me about it. When the County Counsel called they realized their oversight and updated the thumb drive with the maps filed since March. I picked it up yesterday.

Though I'm underwhelmed by the County's response to a PRA request, at least I got what I wanted in the end.

[LA Stevens]

Nice job Jim!

[land butcher]

My son just ran into an issue with Riverside, they changed their research program again. To get access to their "Sharepoint" site now you have to sign up with outlook express who requests too much personal info and a phone number to text to. Sounds like a telemarketing ploy to me. Plus I have texting turned off on my phone..