Making a Request Under the California Public Records Act *updated

* Updated July 29, 2011: The City of Alhambra responded to the second part of my CPRA request.

Sunlight is the best disinfectant. — Louis Brandeis

The California Public Records Act (CPRA) is a powerful tool intended to hold our state and local governments accountable. At its most basic level, the CPRA presumes a record created by an agency or its employees is a public record unless exempted by the Legislature, and gives everybody a right to access public records in California.

In adopting the CPRA, the Legislature declared that “access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.” California Government Code § 6250. In addition, that concept is enshrined in the state Constitution: “The people have the right of access to information concerning the conduct of the people’s business, and therefore, . . . the writings of public officials and agencies shall be open to public scrutiny.” California Constitution, Article I, § 3 (b)(1). As a result, the California Supreme Court has said that records “must be disclosed unless one of the statutory exceptions applies [and the] the party seeking to withhold public records bears the burden of demonstrating that an exception applies.” Int’l Fed’n of Prof’l and Technical Eng’rs v. Super. Ct. of Alameda County, 42 Cal.4th 319, 329, 165 P.3d 488 (Cal. 2007).

Here are some highlights of CPRA followed by a request I made to serve as an example. In addition, the First Amendment Coalition has a great primer on the CPRA that contains most everything you need to know about making a request. I highly recommend you read through and refer to it should you make a request.

Public records in electronic form
You are generally entitled to receive public records in electronic form. CPRA states in unequivocal terms that records held in electronic form qualify as public records and that an agency “shall make” those public records available in an electronic format. California Government Code 6253.9(a)

In any format you request
Likewise, you are generally entitled to receive those public records in any format requested. The text of California Government Code 6253.9(a)(1) and (2) are very clear. In general, you are entitled to receive public records in any format if it already exists in that format (native format). Your request must specifically ask for a particular format. The agency may charge you for any programming or special processing if the public record is not in the format you request. With that in mind, ask for each document to be in their native format, email to be in searchable PDF, and spreadsheets to be in spreadsheet format.

For example, if you request a public record in spreadsheet format, the agency may not give you an electronic file in PDF format if it has or will have that information in spreadsheet format. If you fail to choose a format, the agency may deliver the public record in any reasonable format, perhaps even PDF.

Here is an example of how to qualify your request:

I am requesting a public record in spreadsheet format. [AGENCY NAME] may not give an electronic file in PDF format if [AGENCY NAME] has or will have that information in spreadsheet format. At their most basic, PDF is a graphics format, while a spreadsheet is the front end application for a database. Spreadsheets allow for data manipulation; PDF files do not. In addition, this requirement is inclusive of databases or other programs with an export feature. If the program can export to a given format, such as a comma separated value format, then the record currently exists in that exportable format.


Agency must help
The agency must assist members of the public to “make a focused and effective request that reasonably describes an identifiable record or records.” To that end, the Legislature mandates that the agency do all of the following, to the extent reasonable under the circumstances:
(1) Help a member of the public “identify records and information that are responsive to the request or to the purpose of the request”
(2) “Describe the information technology and physical location in which the records exist”
(3) “Provide suggestions for overcoming any practical basis for denying access to the records or information sought.” California Government Code § 6253.1(a)

Federal Freedom of Information Act precedence
Federal judicial decisions matter a great deal with regard to disclosure of public records under CPRA. The California Supreme Court has noted a few times that CPRA was modeled on the federal Freedom of Information Act (FOIA). And, as such, legislative history and federal court decisions related to FOIA play a major role in how California courts interpret CPRA. American Civil Liberties Union Foundation v. Deukmejian, 32 Cal. 3d 440 (Cal. 1982); Times Mirror Co. v. Superior Court, 53 Cal. 3d 1325 (Cal. 1991).

For example, California courts have not faced questions about the format in which an agency must produce a public record. Federal courts have required agencies to provide spreadsheets in native format and to produce searchable PDF formatted files when addressing FOIA, the federal equivalent of Government Code section 6253.9(a). Although California courts have not yet addressed the question, it is likely they will follow the lead of the federal courts and require an agency to release public records in their native format.

Privacy may not be a barrier
Access may trump privacy in certain circumstances. For example, you may request and receive the names and salaries of city employees, which are public records under CPRA. Int’l Federation of Professional and Technical Engineers (IFPTE) v. Superior Court of Alameda County, 42 Cal.4th 319 (Cal. 2007). The issue in IFPTE was limited to whether salaries for employees making over $100,000 is a public record; however, the discussion and holding for the case was not limited to a particular salary level. Under the holding of IFPTE, years of service and other information relevant to the discussion of compensation likely are public record.

In addition, California Attorney General opinions have said that public records include: (a) retirement benefits paid by the city/state, (b) payroll records of names and amounts received by retirees, and (c) amounts and reasons for performance awards. Although not binding, courts find Attorney General opinions persuasive and entitled to great respect. Since May, appellate level courts in Sacramento and San Diego have agreed with the AG opinions in widely watched opinions. At least one more appellate court is considering the same issue and is expected to make a similar ruling.

Ten (10) days to respond
The agency has ten days to respond. California Government Code § 6253. But it may request and receive an extension.

Attorneys Fees
CPRA has teeth. If you challenge an agency in court and win, that agency must pay your attorney’s fees. California Government Code § 6259(d); Filarsky v. Superior Court, 49 P. 3d 194 (Cal. 2002) That means you are quite likely to find an attorney to represent you in court if your request is not frivolous and has a chance of winning.

Note that the agency can recover its attorney fees if your suit under CPRA is frivolous.

The downside
Just as the CPRA can be used for good, it can also be used for annoying, offensive, or nefarious purposes. Gadflies who have nothing better to do than nitpick a city’s budget can constantly bombard that city with frivolous requests for emails related to specific budget items. If you’ve ever attended a city council meeting you will recognize the gadflies. Such requests often waste more money than they save. Secondly, a resident who dislikes the fact that Alhambra is now a diverse community may make public records requests related to the city putting Chinese and Spanish language inserts into envelopes with utilities bill statements to advertise the new online bill pay system. And third, a person looking to target major infrastructure for a terrorist attack may request flood inundation maps the government had prepared to better understand and communicate the serious risks to life and property should a dam fail.

Do not abuse CPRA!

I should note that we all think our requests are important and are not annoying, offensive, or nefarious. Follow a few common-sense principles when requesting public records:

  1. Plan your request. Before ever making a request, make a plan to scope out what information you are looking for and why. Identify what information you have available to you and what information you need. Research to find information. Only then should you make a request under CPRA.
  2. Research. The City of Alhambra and most other government entities already publish a lot of information. In addition, reporters, other organizations, and residents might have already requested and published the information you are looking for. An advanced Google search for  your topic restricted to only the City of Alhambra web site is a good first step.
  3. Do not make assumptions. Do not assume a document exists, that you will find a “smoking gun,” or that some city official (or conspiracy between officials) has singled you out and is out to get you.
  4. Ask for clarification first. If you are not sure what data exists, then ask what data exists before making a request. You may be surprised at how naturally helpful government officials will be with regard to your queries. Moreover, CPRA requires government agencies to help identify what exists (see above).
  5. You do not always need a document to answer your question. Sometimes, your question can be resolved with a simple phone call. For example, if you want to know why the budget contains a particular expenditure and how that affects a particular program you might get better resolution (and goodwill) with a simple phone call to the City Manager’s office. Or you can attend a City Council or committee meeting discussing that particular budget.
  6. Make your request narrow. Voluminous requests waste precious government resources and might get you denied. For example, the request I made (below) was very narrowly tailored to find out very specific information about the benefits and other compensation paid to former city council members.
  7.  Ask once. If you plan to make several requests or seem to make more than one request a month, combine them. Save yourself and the local government time and money.
  8. Ask: does this serve a general need? Ask yourself why you are making a particular request. If you are serving a general need of all citizens, your request likely is not abusive. If you have a generalized grievance that you cannot articulate well, or are on a crusade to trip up the city or against a particular official, then your request may be abusive.
    • For example, the request I made with regard to benefits of retired city council members is meant to inform all residents of the city. There has been a lot of press with regard to government compensation after the Bell scandal, including articles about arguably generous health benefits provided to Alhambra City Council members. No articles to date have addressed benefits paid to retired city council members, yet they receive the same benefits as current members. Now, with information related to retired city council benefits in hand, we have one more data point relevant to what we need when debating whether the Alhambra City Council is over-compensated and when prioritizing budget cuts. Do we cut benefits to retired city council members, city support for the Rose Parade Float, or the city fireworks display?


An example of a CPRA request – retired Alhambra City Council member benefits

Under Alhambra Municipal Code § 2.04.280, the city pays to provide medical, dental, vision, disability and life insurance benefits to some former city council members. Those former city council members must have served 12 years on the city council.

To find out how much was paid out by the City of Alhambra and for whom, I made a request to the Alhambra City Clerk under the California Public Records Act. I asked for benefit and other compensation details given during the 2009 and 2010 fiscal years. A copy of the email thread is below.

The results:

  • During 2010, Alhambra paid over $30,000 in health benefits for two former Alhambra City Council members, Michael Blanco and Boyd Condie. Neither were on the City Council during 2010. (Google Docs) (PDF)
  • During 2009, Alhambra paid over $28,000 in health benefits for Michael Blanco and Boyd Condie. Neither were on the City Council during 2009. (Google Docs) (PDF). Initially, the city asked for more time to respond to my request regarding 2009. (Google Docs) (PDF).

Copy of the email thread:

June 26, 2011 – To the Alhambra City Clerk, Lauren Myles.

From: daniel bednarski
To: cityclerk1@cityofalhambra.org
Subject: Records request: Compensation of former city council members
Date: Sun, 26 Jun 2011 03:07:39 -0700

Dear Ms. Myles,

I would like benefit and other compensation details given during the
2009 and 2010 fiscal years for former city council members. I would like
names, current city/state if not Alhambra residents, and amounts of the
different benefit/compensation types.

Specifically, I am looking for health care and other benefits received
under AMC 2.04.280 but would also like details regarding any other
compensation received.

Alhambra Municipal Code § 2.04.280  HEALTH CARE BENEFITS.

“Every member of the City Council of the city who retires after 12 years
of service on the City Council shall in each year after their retirement
receive the same medical, dental, vision, disability and life insurance
benefits that sitting City Council Members receive during each such
year, but in no event shall any such benefits be less than substantially
the same health care benefits received during his or her tenure on the
City Council.  Such benefits and the premiums therefor shall be paid by
the city.”

Compensation details are public records. The California Supreme Court
has said that names and salaries of city employees are public records
under the California Public Records Act. Int’l Federation of
Professional and Technical Engineers (IFPTE) v. Superior Court of
Alameda. In addition, California Attorney General opinions have said
that public records include: retirement benefits paid by the city/state,
payroll records of names and amounts received by retirees, and amounts
and reasons for performance awards. Thus, my request should be granted.

Lastly, I would like the information in electronic form. If stored
natively in spreadsheet format, then that format is preferred.

Thank you in advance,

Dan Bednarski

July 14, 2011 – Follow-up message noting the 10 days had passed

From: Daniel Bednarski
Sent: Thursday, July 14, 2011 12:55 AM
To: City Clerk
Subject: Re: Records request: Compensation of former city council members

Hello,

I am following up on the following email I sent on June 26. I am seeking certain public records under the California Public Records Act. It has been over 10 days since I first made my request.

Best regards,
Dan

July 14, 2011 – Response from Ms. Myles asking for additional time

From: City Clerk <cityclerk1@cityofalhambra.org>
To: Daniel Bednarski
Subject: RE: Records request: Compensation of former city council members
Date: Thu, 14 Jul 2011 09:12:20 -0700

Dear Mr. Bednarski,

I never received your original request sent June 26, 2011. Perhaps there was a typographical error in my email address or it was just not delievered. I will begin processing your request today, but the 10 day response time will begin now, July 14, 2011, rather than June 26, 2011. I apologize for any inconvenience.

Best regards,

Lauren Myles, CMC
City Clerk
City of Alhambra
111 South First Street
Alhambra, CA 91801
(626) 300-1599

July 14, 2011 – My response assenting to additional time

From: Daniel Bednarski
Sent: Thursday, July 14, 2011 1:41 PM
To: City Clerk
Subject: RE: Records request: Compensation of former city council members

Ok, thank you.

-dan

July 25, 2011 – Response from Ms. Myles

From: City Clerk <cityclerk1@cityofalhambra.org>
To: Daniel Bednarski
Subject: RE: Records request: Compensation of former city council members
Date: Mon, 25 Jul 2011 15:48:41 -0700

Good Afternoon Mr. Bednarksi,

In response you your public  records request received via email on July 14, 2011 (please see below) I have attached two PDF documents. The first contains the information you were seeking for the year 2010. As far as the information for 2009, we are still working with the City’s departments to provide the information for you. Please see the second PDF attached as it relates to the extension of time we will need to obtain the records for 2009. Please let me know if you have any questions or if you have any trouble viewing the attachments.

Best regards,

Lauren Myles, CMC
City Clerk
City of Alhambra
111 South First Street
Alhambra, CA 91801
(626) 300-1599

July 29, 2011

From: City Clerk <cityclerk1@cityofalhambra.org>
To: daniel bednarski
Subject: RE: Records request: Compensation of former city council members
Date: Fri, 29 Jul 2011 16:24:33 -0700

Good Afternoon Mr. Bednarski,

Please see the attached PDF. It contains the information you requested for the calendar year 2009.

Please let me know if you have any questions or trouble viewing the attachment.

Best regards,

Lauren Myles, CMC
City Clerk
City of Alhambra
111 South First Street
Alhambra, CA 91801
(626) 300-1599

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