Public Records Access – Model City / County Ordinance / Guidelines

Public Records Access – Model City / County Ordinance or Guidelines
(c) Copyright 2005 David Dilworth and HOPE

The following language can be adopted by any California city or county or any public agency by simple adding the agency’s name in the blanks at the top. With only a bit more work this can be adapted to any other city, county or state anywhere in the world.

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“The Legislature, mindful of the right of individuals to privacy,
finds and declares 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 Public Records Act, Section 6250

It is the goal of the City / County to respond to public record requests in a manner that is both timely and convenient to the public similar to the excellent response provided by reference librarians.

In using this ordinance / these Guidelines it is important to understand that the City / County of _________ and its staff do not own the records and files contained in its offices. These records are owned by the people of the state of California.

This Policy is intended to detail how the City /County of ___________ will provide records to the public as directed by the 2004 Constitutional Right to Open Government adopted by 83 percent of California’s voters and the constantly increasing access to public records provided by California’s legislature and its courts.

This ordinance / these guidelines are intended to clarify the process for citizens desiring to inspect or make copies of records under the California Public Records Act (the “Act”) and to establish clear procedures for the public to follow in implementing the Act and improving on the minimum legal disclosure requirements where reasonable. This ordinance / these guidelines are not intended to conflict with any requirements of state law.

Definition of Public Records
The Act defines “public records” 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.” “Writing” is defined to include “any handwriting, typewriting, printing, photostating, photographing, transmitting by electronic mail or facsimile, and every other means of recording upon any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combination thereof and any record thereby created, regardless of the manner in which the record is stored”. (Section 6252(e) and (f)).

The Act governs disclosure of public records. Research which entails work other than disclosure of records is not governed by the Act or these Guidelines.

Training

All City /County heads and staff who meet with the public shall receive and pass a yearly class training in the Public Records Act and these guidelines.

Disclosure of Records Under The Public Records Act

The City /County shall arrange strategic priorities and logistics so that Public Records requests are anticipated, welcomed and accommodated as part of everyday operations.

The intent of the Act is to recognize and provide the public’s fundamental and necessary right to “access to information concerning the people’s business.” (Section 6250.) Any person may request to inspect a public record or request a copy of the record. Most City /County records are subject to disclosure, although a few records are exempt from disclosure based on limited exceptions. Procedures for inspection and copying and a description of the types of records generally not subject to disclosure are outlined.

Procedures

Staff may not and shall not ask the purpose for inspection of records. While staff may ask questions to more clearly understand which information is sought, asking the purpose is not authorized by the Act (Section 6257.5). A purpose may be offered by the requestor for fee waivers.

Inspection of Public Records

Public records are open to inspection at all times the city / county is open for business, and every person has a right to inspect any public record except for those records or portions of records which are explicitly exempt from disclosure under state law (Section 6253(a). The term “inspection” essentially means reviewing the record.

Copies of Records

Under the Act, a person may also request a copy of records. (Section 6253(b).) The request for a copy of a record should, but is not required, to (the Act has no such requirement) reasonably describe an identifiable record or records. Because the City / County is required to help the requestor find the records desired, if the City / County does not understand the request, the City / County must make an excellent effort to elicit additional clarifying information from the requestor that will help identify the records being sought. (Section 6253.1.)

The official copy of building plans are open to inspection, but there may be restrictions on copying the plans for copyright reasons.

Electronic Records

If the City / County keeps the records in an electronic format, the public shall be informed of this and may request the records in an electronic format, and within certain limitations enumerated by state law, the City must provide the records in electronic format including by email and fax. (Section 6253.9.)

Procedures and Time Limits for Making Records Available

When a member of the public requests to inspect a record, staff shall locate the record, ensure it is not specifically exempt from disclosure by consulting the Exempt List (described below as used in San Francisco’s Sunshine Act and encouraged by the PRA), and unless not clearly explicitly exempt, make the public record available for inspection without delay. Records should be as readily available as materials in a library. Recognizing the initial delay just to meet with staff, when records are not specifically described on the List of Exempt documents, excellence means no wait to inspect records shall exceed 30 minutes after making a request unless there are extraordinary circumstances.

While the agency staff must review records for information that must be protected (e.g. personal private information such as Social Security numbers), records which are not on the Exempt List and have no certainty of containing statutorily restricted information shall be made available for inspection immediately.

Only if 1) the number of records requested exceeds 100 and are difficult to compile, 2) the records are located offsite, or 3) redacted copies must be made, may staff exceed the 30 minute excellence limit. Records maintained on-site are more readily available than those that must be retrieved from off-site locations. Requestors shall be immediately told if they can inspect the records, or copies of the records, more quickly at another site.

For example, in the case of a simple request for an identifiable record which is maintained on-site and which is clearly not subject to any exemptions from disclosure (for example, a copy of a staff report that has already been publicly distributed), staff must provide the record for inspection without delay. For each record requested if the record is not immediately available, City staff will advise the requestor in writing of the date and time when the records will be available for review the specific reasons for delaying or not providing each of the requested records, the location of each of the records, as well as the name, title and signature of the person who determined that records would not be provided.

When staff is working on a particular file, they shall make available all portions that they are not specifically working on at that moment. This is especially important when a project is coming up for a hearing or a decision within ten working days.

One Day Time Limit for Response

The City / County is required by law to provide a response to the request for copies within 10 days. However, excellent response means the public should never suffer the absolute maximum delay allowed by law. Creation of the exempt list is intended to allow staff to make disclosable records available immediately without involving the agency Attorney, the Manager or even a supervisor. Once the Exempt List is completed there is no reason that any requestor should wait more than 30 minutes to review records which are not exempt.

For records that are on the exempt list, at a minimum, within one day or 8 working hours of receiving the request, the City must let the requestor know whether the City / County has disclosable records that meet the description in the request. Except in unusual circumstances, the City / County should make the records available for inspection, or, if requested, make the copies of the records, within the 8 working hour period. If the City / County does not have records that meet the description or if some or all of the records are exempt from disclosure, the City / County must notify the requestor in writing within a 1-day period. The City / County must provide written notice to the requestor of all reasons for denying access to each record and the name, signature and title of all staff who participated in making that determination. (Section 6255(b)).

In rare circumstances, for example, if a request is voluminous, seeks records held off-site, requires consultation with other agencies, or requires compilation of data in electronic format, the City / County may, only upon signed written notice to the applicant sent within a 3 day period, extend the time to respond by an additional 5 working days. The written notice must include the specific reasons for delaying or not providing each of the requested records, the location of each of the records, an estimated date and time when the records will be made available, as well as the name, title and signature of all staff who participated in making that determination that records would not be provided. (Section 6253(c ).) Portions of a voluminous request should be made available as soon as possible, not delayed until all requested records can be compiled.

RECORDS EXEMPT FROM DISCLOSURE

California law recognizes three different categories of records – public, exempt (protected by privacy laws) and Exempt But Disclosable – records documents which may be exempt from disclosure but can be disclosed by choice. Staff shall explain for the requestor the difference between exempt records which are required to be secret and exempt records which may be provided to the public. Disclosure of such records is typically a policy decision.

Exempt Records List

Within six months after adoption of this policy, the City shall create and maintain a document called the “Exempt List” for use by staff and the public, with guidance from City Attorney and the Exempt List employed by San Francisco’s Sunshine Act, of only those records which are categorically and specifically exempt by law. The Exempt List shall be adequate and maintained specifically so City staff need not seek legal advice from City Attorney in determining whether a record is exempt from disclosure. Examples of categories of documents for which disclosure is prohibited include, but are not limited to, the following:

* Specifically restricted information relating to utility systems development that are obtained in confidence from any person.

* Only those portions of Personnel, medical, or similar files, if their disclosure would constitute an unwarranted invasion of privacy.

Additionally, the list shall include categories of documents that the City may exempt from disclosure but which can be disclosed.

Examples of categories of documents that the City may be exempt from disclosure but which can be disclosed in the spirit of excellent open government include the following :

1. Records containing or seeking advice of counsel. This includes notations on documents by legal counsel: These can be protected by attorney client and attorney work-product privilege, however these can also be disclosed if the council chooses.

2. Litigation: Documents pertaining to active litigation (to distinguish them from potential or final litigation records which are not exempt) if the City is a party to the litigation. Only those litigation documents and portions of documents for which the City can overwhelmingly demonstrate that the public interest in non-disclosure outweighs the public interest in disclosure may be exempted. Even these records can be disclosed if the council chooses.

3. Drafts of Documents – can be disclosed.

4. Records for which the City can overwhelmingly demonstrate that the public interest in non-disclosure outweighs the public interest in disclosure – can be disclosed.

Records Specifically Never Exempt From Disclosure

* Policy Records
* Records related to lobbying of other state or federal agencies or officials
* Documents showing steps, or reasoning, leading to a decision.
* Appointment Calendars

Some records, such as a privately copyrighted books or computer programs, must be available for inspection and review, but not for copying beyond that authorized by copyright law.

MAKING A REQUEST FOR PUBLIC RECORDS

Staff may not require a written request for records. (The Act makes no distinction between written or other types of requests) Staff shall inform requestors that while it may be helpful no one is required to put a request in writing or to use a form; and that requestors may use their own form or a simple letter or memo.

In order for the City to ensure that the proper records are obtained and keep track of requests, a Records Request Form may be completed and submitted to the City. Records may be requested in person, by mail, FAX, e-mail or on the phone. A Request Form is available on the City website in plain Text, Word, RTF, and PDF formats.

Requests Made Via E-mail

The optional Public Records Request Form or any other type of request including a simple letter or memo, may be submitted by e-mail to:

[email protected](city).ca.us

Optional Suggestions:
1. Download the Form from the City / County Website and complete all required information.
2. Attach the document and send to the City / County email address above.
3. Staff will confirm electronically that the request was received within 2 working hours and advise in writing when the records can be reviewed.

CHARGES FOR COPIES

* It is important to realize that no state law, including the Public Records Act, requires the city to charge for copies of records.

There shall be no charge for inspecting, faxing or emailing copies of records already on computer; or for the human resources needed to run the equipment.

The cost for photocopying records shall be determined at least annually for each photocopy machine by dividing the number of copies made into the yearly cost of photocopy machine use. A dated copy of the most recent results shall be kept with each photocopy machine.

Charges for one sided letter size photocopies shall not exceed two cents per one-sided page (8.5″ x 11″) until it can be shown that the direct cost of photocopying for all available photocopy machines exceeds that amount.

There shall be no charge for compiling emails or records.

There shall be no copying charge for forwarding emails or other computerized records.

There shall be no copying charge for a person who brings in their own copying devices.

Payment shall not be required earlier than the time when copies are delivered.

Pursuant to the Act (Government Code section 6257) the City / County may, but is not required to, charge a fee for copies based on the direct costs of duplication. Only in the most extreme circumstances may the copy cost exceed that of a commercially created copy. Current researched costs as of 2010 are:

* $0.02 per page for single-sided letter sized copies.
* $1.30 per page for blueprints
* $0.20 per CD Rom
* $0.42 per DVD Rom
* actual cost of duplication for irregular size or type of record

Legitimate public interest groups which derive no commercial benefit and who provide public education, may request, and should be granted, a waiver of copying fees just as is provided by the Federal Freedom of Information Act.

The City shall establish and maintain a list of legitimate public interest groups which have been determined should be granted a fee waiver.

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For more information click here Public Records

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