The California Public Records Act, which can be found at California Government Code sections 7920 - 7931, is the California law that provides the public the right to inspect and the right to promptly obtain copies of "public records." The purpose of the Act is to provide access to information that enables the public to monitor the functioning of their Government (CBS Inc. v. Block, (1986) 42 Cal. 3d 646, 651).
The Act is interpreted broadly in favor of providing access to public records, and any exceptions to the Act are interpreted narrowly. Cal. Const. art. I, section 3(b)(2); Sander v. Superior Court (2018) 26 Cal. App. 5th 651, 654. In 2004, the California Constitution was amended to include Article I, section 3(b), regarding the public's right to access public records.
Definitions. The CPRA defines a "public record" as "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." Gov. Code 7920.530.
A "writing" is defined as "any 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 create, regardless of the manner in which the record has been stored." Gov. Code §7920.545.
The Record Must Relate to the Public's Business. Not every record in possession of an agency is a public record. If a record contains primarily personal information, it is not a public record for purposes of the Act. City of San Jose v. Superior Court (2017) 2 Cal. 5th 608, 618-19.
The Record Must be Prepared, Owned, Used, or Retained by an Agency. Records do not have to be in the physical custody of an agency to qualify as "prepared, owned, used or retained" by an agency. Records in the possession of a public agency's consultant can be public records if the agency's agreement with the consultant provides that the agency owns or controls the records. City of San Jose v. Superior Court (2017) 2 Cal. 5th 608, 623. Additionally, documents that otherwise meet the definition of public records are considered to be "retained" by the agency if they are retained on an employee or official's personal device. City of San Jose v. Superior Court, supra, 2 Cal. 5th at 629.
The Record Must be an Existing Record. The California Public Records Act applies only to existing records, it does not require an agency to create a record that does not exist at the time of the request. Haynie v. Superior Court (2001) 26 Cal. 4th 1061, 1075.
Physical Form is Not Important. The courts have recognized that the intent of the California Public Records Act was to include in the definition of "public records" all forms of records, including electronic media, and any new forms of record keeping that are developed. Braun v. City of Taft (1984) 154 Cal. App. 3d 332, 340.
The California Public Records Act is applicable to state and local agencies in California.
A "state agency" includes "every state office, officer, department, division, bureau, board and commission or other state body or agency." Gov. Code §7290.540. A "local agency" includes a county, city, city and county, school district, municipal corporation, special district, community college district or political subdivision." Gov. Code §7290.510.
The CPRA does not apply to the Legislature or the courts. Access to Legislative records is governed by the Legislative Open Records Act (Gov. Code §9070 et seq.), and access to court records is governed by case law (Overstock.com v. Goldman Sachs Group, Inc. (2014) 231 Cal. App. 4th 471, 483-86).
The California Public Reco rds Act exempts certain public records from disclosure, based on concerns regarding privacy, government efficiency, or both . Some of the key exemptions can be found in California Government Code sections 7923.60-7929.610. A list of other California s tatutes that exempt records from disclosure pursuant to the C alifornia Public Records Act can be found in California Government Code sections 7930-7930.215.
There are approximately 76 exemptions to record disclosure that are set forth in the CPRA. A few of the exemptions that are relied on frequently by public agencies are:
Attorney Client Privilege and Attorney Work Product. All records protected by privileges under the Evidence Code are exempt from disclosure under the CPRA pursuant to Gov. Code §7927.705. Attorney-client privileged communications and attorney work product are examples of privileged documents that are exempt from disclosure under the CPRA.
Preliminary Drafts. Gov. Code §7927.500 exempts from disclosure "preliminary drafts, notes or interagency or intra-agency memoranda that are not retained in the ordinary course of business." If a document goes through multiple drafts before being finalized or approved, only the final version is subject to disclosure.
Law Enforcement Records. The provisions of the CPRA related to crime and law enforcement records can be found at Gov. Code §7923.600-7923.805. Law enforcement investigatory files as a whole are generally exempt from disclosure pursuant to Gov. Code §7923.600, however, local agencies are required to disclose certain pieces of information that are contained in those records. For instance, Vehicle Code §20012 requires that traffic accident reports be released to certain persons, including involved drivers, injured persons, and the authorized representatives of those persons. Also, certain information must be disclosed about arrestees, including their name, occupation, physical description, time and date of arrest, location of arrest and charges. Gov. Code §7923.610. For more detail about the CPRA and law enforcement records see this June 2020 article and this web page.
Pending Litigation. Records related to pending litigation to which the agency is a party, or claims made under the California Government Tort Claims Act are exempt from disclosure until the pending litigation or claim has been finally resolved or settled. Gov. Code §7927.200. This exemption applies only to documents specifically prepared for use in existing or anticipated litigation. Fairley v. Superior Court (1998) 66 Cal. App. 4th 1414.
Personnel, Medical and Similar Records. Personnel, medical, or similar files are exempt if their disclosure would constitute an unwarranted invasion of personal privacy. Gov. Code §7927.700.
Utility Customer Information. The name, credit history, usage data, home address, and telephone number of an agency's utility customer is generally exempt from disclosure under the CPRA, except in certain circumstances listed in Gov. Code §7927.410
"Public Interest" Exemption (Balancing Test or "Catchall" Exemption). This exemption allows an agency to withhold records that are not listed in any specific exemptions under the CPRA, when the public interest served by withholding the records clearly outweighs the public interest served by disclosure. Gov. Code §7922.000. (former Gov. Code §6255). The agency relying on this "balancing test" or "catchall" exemption must be able to clearly demonstrate the public interest in nondisclosure based on the facts of the particular case. Black Panther Party v. Kehoe (1974) 42 Cal. App.3d 645, 657.
When an agency denies all or part of a request based on an exemption, the agency must identify the specific exemption in its response. Gov. Code §7922.000.
For more information about exemptions from disclosure under the CPRA and how they are applied, see "Top Ten Points To Remember About Exemptions Under the California Public Records Act" from Calaware.org.
Form of the Request . A record request under the CPRA can be made orally or in writing, in person or by phone. A written request can be mailed, emailed, faxed or personally delivered. Los Angeles Times v. Alameda Corridor Transportation Authority (2001) 88 Cal. App. 4th 1381, 1392. It is best to submit a request in writing, to have a record of your request in the event of a dispute over the agency's response.
Specificity of the Request. A public records request must reasonably describe an identifiable record or records and must be focused, specific, and reasonably clear, so that the agency can determine which records are being requested. Rogers v. Superior Court (1993) 19 Cal. App. 4th 469, 481; California First Amendment Coalition v. Superior Court (1998) 67 Cal. App. 4th 159, 166.
Content of the Request. A requesting party has a right to inspect disclosable records, or to copy records, or both. Gov. Code §7922.525, 7922.530. A request should specify whether it is for inspection, copying, or both. No "magic words" are required to make a record request, only that the described record or records are being sought. If a requesting party cites to the federal Freedom of Information Act rather than the CPRA, the agency is still required to respond pursuant to the CPRA. A requesting party is not required to explain the purpose of the request or how he or she intends to use the record. Gov. Code §7921.300.
Sample CPRA Request Letters . For some sample CPRA request letters, see the Resources page of this guide.
Timing of the Response. The CPRA requires the agency to respond to a request for records within 10 days from receipt of the request. Gov. Code §7922.535. This 10 day response is not a deadline for providing access to the records, but the deadline for the agency to notify the requesting party about its determination of whether it has the requested records, and if they will be disclosed. The agency can extend the 10-day response period for an additional 14 days if there is a need for more time to search and collect the records from separate facilities, to search for voluminous records, to consult with another interested agency or department, or to compile electronic records. Gov. Code §7922.535(b). The CPRA does not provide a precise deadline for providing access to records. It states that the agency shall make the records "promptly available." Gov. Code §7922.530(a).
Assisting the Requester. The CPRA requires agencies to assist a person making a request if they are having trouble with making a specific and effective request. This assistance includes helping the person identify records that would satisfy the purpose of the request; describing the agency's records, record keeping technology and locations of records; providing an index of records; and other suggestions for overcoming barriers to obtaining the records. Gov. Code §7922.600.
Withholding or Redacting Records . If an agency denies a request for records or provides records in a redacted form (that is, blacking out part of a record) the agency must state the legal basis under the CPRA for withholding the blacked out information. Gov. Code §7922.000.
Fees for Providing Records . Agencies cannot charge a fee for inspecting records, but when copies are requested the agency can charge the "direct cost of duplication" or a statutory fee for the copies, which the agency can require in advance or providing copies. Gov. Code §7922.530(a). Most agencies have an established fee for copies of records, for example, the City of San Diego charges 25 cents per page for copies of records.
Remedies for Violation of the CPRA . The CPRA provides for a special process for challenging an agency's response to a record request. The Act provides that any person may petition the superior court to enforce the CPRA. Gov. Code §7923.100. The action must be filed in the superior court in the county where the requested records are maintained. Gov. Code §7923.100. The requesting party has the burden of proving that the agency violated the Act, and the agency is entitled to a presumption that it acted reasonably and in good faith in responding the the request. ACLU of N. Cal. v. Superior Court (2011) 202 Cal. App. 4th 55, 85.
Attorneys Fees and Costs in CPRA Litigation. The party that wins a CPRA lawsuit may be awarded attorneys fees and costs, however, when the public agency wins the lawsuit, it will only be awarded its fees and costs if the plaintiff's case was clearly frivolous. Gov. Code §7923.115.
