HomeMy WebLinkAbout102-Handbook.pdf
CITY OF SARATOGA
PUBLIC RECORDS ACT
HANDBOOK
MAY 2009
Prepared by Saratoga City Attorney’s Office and City Manager’s Office
Richard S. Taylor
Jonathan Wittwer
Isaac Bowers
Curtis Boone
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TABLE OF CONTENTS
Introduction ……………………………………………………………………………………. 1
I. The Public’s Access to Records ……………………………………………. 2
II. Records Exempt from Disclosure ……………………………………………. 3
III. Responding to a Public Records Act Request ……………………………. 6
IV. Procedures For Locating and Reviewing Records ……………………………11
Attachments
Attachment 1. How to Process a Public Records Act Request (quick reference)
Attachment 2. Frequently Asked Questions about the Public Records Act
Attachment 3. Sample Public Records Act Request Form
Attachment 4. Sample Initial Response
Attachment 5. Sample “Streamlined” Response
Attachment 6. Sample Final Response
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INTRODUCTION
What is considered a public record, and what is the City’s obligation to release such
records to the public? Most records retained and used by Council, Commissioners and staff in
day-to-day City operations are public records. However, some public records may be exempt (for
example, those containing confidential or privileged information). The legal standards for
responding to records requests are found in the California Public Records Act (“PRA” or “Act”)
(Government Code section 6250 et seq.),1 which is now a part of the California constitution
This handbook provides a general overview of the Act.2 It seeks to answer some of the
general policy questions that arise regarding the disclosure of public records and information
contained in those records. However, the discussion is not exhaustive. The League of California
Cities provides an excellent and more detailed discussion in The People’s Business: A Guide to
the California Public Records Act.3 This handbook is also not a substitute for the law itself and
does not impose any additional obligations or duties on the City or on City officials.4 To ensure
that the City fully complies with the Public Records Act, City officials should consult with the
City Attorney when specific questions arise.
The organization of this Handbook reflects its intended use as a practical guide for
Saratoga staff, Council members, and Commissioners. Parts I and II of the Handbook provide a
brief overview of the purposes of the Act, of the definition of a public record subject to the Act,
and of records that are exempt from disclosure. Parts III and IV then provide a detailed guide to
the process by which the City responds to a Public Records Act request, locates the requested
records and provides those records to the requester. In addition, the Handbook contains six
attachments:
1. A step-by-step reference for processing a Public Records Act Request;
2. A list of frequently asked questions about the Public Records Act;
3. A form for processing a Public Records Act request;
1 All subsequent statutory references are to the Public Records Act unless otherwise noted.
2 As with all good municipal work, this handbook is based to a large extent on the work of others. Particularly
helpful were: The People’s Business: A Guide to the California Public Records Act, published by The League of
California Cities; the California First Amendment Coalition’s Open Government Summary by James Chadwick; The
California State University Records Access Manual, prepared by the Office of General Counsel of the California
State University; and Public Records by Vera M. Todorov.
3 Available at http://www.cacities.org/index.jsp?zone=locc&previewStory=26921.
4 This manual uses the term “City officials” to refer to City Council members, Commissioners and staff.
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4. A form for providing an initial response to a Public Records Act request;
5. A form for providing a “streamlined” response to a Public Records Act request; and
6. A form for transmitting records in response to a Public Records Act request.
This Handbook has been prepared as a tool to promote and strengthen civic engagement in
the City of Saratoga. The City conducts the people’s business, and that business runs best when
the people have access to the information necessary for them to be informed of and influence the
affairs of their City government.
I. The Public’s Access to Records
The purpose of the Public Records Act is to promote “access to information concerning the
conduct of the people’s business [which is] a fundamental and necessary right of every person in
this state.”5 In 2004, California voters amended the California Constitution to protect the public’s
right of access to government records and government meetings.6 The amendment does not go
beyond those rights already present in the Public Records Act, but gives greater emphasis to the
public’s right to access government information. The Constitution makes clear a point suggested
by earlier judicial opinions: the public’s right of access must be broadly construed, and all
exceptions narrowly construed.
Public records subject to disclosure are defined 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.”7 The term “writing” is
further broadly defined to include:
“…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 created,
regardless of the manner in which the record has been stored.”8
5 Government Code § 6250.
6 Art. I, Section 3(b)(1) of the California Constitution provides as follows: “The people have the right of access to
information concerning the conduct of the people’s business, and, therefore, the meeting of public bodies and the
writings of public officials and agencies shall be open to public scrutiny.”
7 Government Code § 6252(e).
8 Government Code § 6252(g).
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The Act defines “public records” so broadly, without limitation on the physical form or
characteristics of the record, because the Act is designed to protect the public’s need to be
informed about the actions of government. The courts have explained that “secrecy is antithetical
to a democratic system of government.”9
All records maintained by the City are potentially subject to disclosure under the Act,
including both electronic and hard copy, unless they fall into a clearly authorized exception.
Nevertheless, the mere fact that a record is in the possession of a City Department does not make
it a “public record” under the law. A bona fide “public record” must relate to the public’s
business. Thus, purely personal communications addressed to City employees are not public
records so long as they have absolutely no relation to the employee’s work responsibilities or
assignments. As stated in California State University v. Superior Court, 90 Cal. App. 4th 810,
824 (2001):
“The mere custody of a writing by a public agency does not make it a public record, but
if a record is kept by an officer because it is necessary or convenient to the discharge of
his official duty, it is a public record. . . . This definition is intended to cover every
conceivable kind of record that is involved in the governmental process and will pertain
to any new form of record-keeping instrument as it is developed. Only purely personal
information unrelated to ‘the conduct of the public’s business’ could be considered
exempt from this definition, i.e., the shopping list phoned from home, the letter to a
public officer from a friend which is totally void of reference to governmental
activities.”10
Commonly requested documents that are public records subject to disclosure include: City
Council agendas; minutes of City Council meetings; staff reports; agreements; ordinances;
resolutions; grant deeds; maps from City planning documents; photographs; e-mails between
City officials, applicants, and other members of the public; invoices from contractors; and
payroll records.
II. Records Exempt from Disclosure
The Act provides that all public records are generally subject to disclosure. There are two
primary circumstances in which records are not to be disclosed: (1) The Act or other law
specifically provides that the particular type of record is expressly exempt from disclosure
9 Poway Unified School District v. Superior Court (Copley Press) 62 Cal.App.4th 1496 (1998) (internal citations omitted).
10 Braun v. City of Taft, 154 Cal.App.3d 332, 340 (1984) (emphasis added, internal citations omitted).
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(Government Code sections 6254 – 6254.26); or, (2) the record, although not expressly exempt,
should not be disclosed because on balance “the public interest served by not disclosing the
record clearly outweighs the public interest served by disclosure of the record” (Government
Code § 6255).
A. Express Exemptions
Government Code sections 6254-6254.26 list many of the statutory exemptions to the general
rule regarding disclosure of public records. For the City’s purposes, the most significant of these
exemptions are the following:
1. Litigation records related to ongoing and pending litigation.
2. Personnel, medical or similar files where disclosure would be an unwarranted
invasion of personal privacy.
3. Confidential information required of a taxpayer in connection with payment of any
tax to the City.
4. Preliminary drafts, notes, or memoranda not retained by the City in the ordinary
course of business if the public interest clearly supports non-disclosure.
5. Personal financial information required of an applicant seeking a license, certificate,
or permit.
6. The contents of real estate appraisals or engineering or feasibility estimates and
evaluations made for or by the City in connection with the acquisition of property and
construction contracts, until all of the property has been acquired or all of the
contracts have been consummated.
7. Records protected from disclosure by federal or state law other than the Public
Records Act. (For the most part the City has few of these records but if a record
contains what appears to be sensitive information the limitations referenced in
Government Code sections 6275 through 6276.48 should be reviewed in consultation
with the City Attorney.)
The application of an exemption to a particular record in a particular set of circumstances
may not be clear in some cases. If questions arise, City officials should consult the City
Attorney’s office for advice. Close cases require a review of the underlying facts and
circumstances in view of the relevant court decisions and recognition that exemptions from the
Act are to be construed narrowly. Please contact the City Attorney’s office in sufficient time so
that an adequate response may be made within the deadlines established by the Act.
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B. The General Exemption
The Public Records Act recognizes that in some cases a record may not be appropriate for
disclosure even though it is not among the types of exempt records described above. The Act
establishes a “catch-all” exemption in section 6255. In order to determine whether the “catch-all”
exemption applies to a particular record, the City must consider:
1. The public interest served by disclosure;
2. The public interest that would be served by withholding the record; and
3. Whether the public interest in not disclosing clearly outweighs the interest in
disclosure.
For example, the “catch-all” exemption was applied in City of San Jose v. Superior Court
(1999) 74 Cal.App.4th 1008. There, the court held that the public interest in the disclosure of the
names, addresses, and telephone numbers of persons who had made complaints about airport
noise was clearly outweighed by the public interest in protecting the complainants’ privacy and
in preventing a chilling effect on complaints.
It is essential to carefully consider these factors because, in contrast to most legal
proceedings, the City will bear the burden of proving the legitimacy of the decision if it is
challenged. It should also be noted that the motive of the requester is generally irrelevant when
balancing the interest of the public served by withholding an otherwise disclosable record.
Examples of records that the courts have found to fall within the “catch-all” exemption are:
1. A request for five years’ worth of information from Governor George Deukmejian’s
appointment calendars because the court found such a massive scrutiny would
interfere with the governor’s deliberative processes and deter members of the public
from conferring with him without bestowing any overriding benefit on the public.11
2. A request for obtaining auditors’ procedural manuals was properly denied because the
public interest in preventing regulated businesses from circumventing effective
compliance investigations by obtaining the manuals prior to audit outweighed any
public interest in disclosure.12
Examples of the records or reasons where the courts have rejected the “catch-all” exemption
are:
11 Times Mirror Co. v. Superior Court, 53 Cal. 3d 1325 (1991).
12 Eskaton Monterey Hospital v. Myers, 134 Cal.App.3d 788 (1982).
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1. Records documenting a private company’s financial information were found subject
to disclosure because the public interest in monitoring that city’s contracting for
services and regulation of contractors’ fees charged to residents outweighed a city’s
interest encouraging contractors to submit financial information justifying the need
for rate increases.13
2. The public interest in confirming facts surrounding questioned personnel practices
outweighed a city’s interest in not discouraging individuals from applying for
municipal employment, where information sought (e.g., salary, dates of employment)
is not a matter of personal privacy.14
The application of these exemptions to a particular set of circumstances may not be clear,
particularly if it is one that has not been encountered previously. In such cases, City staff should
consult the City Attorney’s office.
Finally, it is important to note that even if a record contains information that is exempt from
disclosure, the City must make available “any reasonably segregable portion of a record” after
deleting (redacting, typically by whiting out) the non-disclosable information.15 Records cannot
be withheld simply because an easily segregable portion contains information that is exempt
from disclosure. The City is required to disclose public records that also contain information that
is not disclosable but can easily be redacted (e.g., purely personal information like social security
numbers, third party proprietary or trademark information, or other exempt information).
Consultation with the City Attorney is advised prior to disclosure of records involving a mixture
of disclosable and non-disclosable information.
III. Responding to a Public Records Act Request
Democratic government requires an informed public. The City of Saratoga’s business is the
people’s business, and the people have a right to access information that will allow them to be
informed on or influence the affairs of their City government. Accordingly, the City’s general
policy is that public records are to be made available for review on request whenever tenable in
light of the specific records requested and available staff time. As stated in Government Code
section 6253(a): “Public records are open to inspection at all times during the office hours of the
… local agency and every person has a right to inspect any public record….” This part of the
13 San Gabriel Tribune v. Superior Court, 143 Cal.App.3d 762, 775 (1983).
14 Braun v. City of Taft, 154 Cal. App. 3d 332 (1984).
15 Government Code § 6253(a)
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Handbook describes how to identify a request, work with members of the public making
requests, respond formally to a request, and locate and review records responsive to the request.
A. Identifying a Public Records Act Request
A public records request is any request to inspect or copy public records. The request can
come from any person or from an organization such as the news media, a business entity, or
association. It can be made orally (e.g., by phone call or request at a department counter) or
through a formal written request (e.g., by a letter addressed to a City department). All requests to
review City records should be treated seriously and responsibly. No such request, regardless of
how vague or unusual, should be dismissed out of hand. As part of Saratoga’s emphasis on
quality customer service, it is a good practice to construe less formal requests for records as a
formal request under the Public Records Act. A formal written request is not required, although
the City may provide an oral requestor with a written confirmation of the request.
At times the City may receive requests for information rather than specific records. As a
general matter, the Public Records Act does not require the City to prepare new records in
response to requests for information (for example, if the City received a request for the number
and type of code enforcement complaints filed each month and did not have a record or records
containing that information it would not be required to compile the information; instead it could
invite the requestor to review non-confidential code enforcement records in order to compile the
information). Nonetheless, if the information can be provided without undue burden on staff
resources, the City’s customer service philosophy is to provide information when it is feasible to
do so. Staff should consult with the Department Director if they receive a request for information
where there are no responsive records but it may be feasible to assemble the information
requested.
The Public Records Act is similar to a separate law governing the disclosure of records held
by the Federal government. That law is known as the Freedom of Information Act (“FOIA”).
That law does not apply to the City. If the City receives a records request based on FOIA it
should treat the request as being made under the Public Records Act and proceed as it would
with any other records request.
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B. Fielding a Public Records Act Request from a Member of the Public
The City must always facilitate, not frustrate, the production of relevant information to the
public to the extent reasonable under the circumstances. If the records requested are clear from
the request and are made available, or if the requested records are protected by one of the
specific exceptions in the law, further dialogue with the requesting party is not required.16 If,
however, a request is unclear, the person handling the request should work with the requester to
help clarify the request.
The Act requires public agencies to assist members of the public in making “a focused and
effective request that reasonably identifies an identifiable record or records.”17 This means in
some instances that staff must engage in a dialogue with a requesting party to assist in record
identification, describe the information technology and physical location, and/or provide
suggestions to overcome any practical basis for denying access to records or information. Staff
should think in practical terms of ways to help people refine requests based on how the City’s
files are organized.
For example, consider a request for all records pertaining to a particular City intersection.
Instead of saying the request is too vague, the person handling the request should work with the
requester to narrow the request. By learning if the requestor is interested in a particular time
frame or subject matter related to the intersection (e.g., when the crosswalk was last repainted,
why a signal was located at that intersection, or even a land use approval at the intersection),
City officials will be able to provide a meaningful response without an unreasonable search of all
City records.
A request form should be filled out by either the requestor or staff when a request is received
for all but the most routine requests that are immediately fulfilled (e.g., no form is needed if a
requestor asks for a copy of the agenda and a copy is immediately provided). Staff should
indicate on the request form when the records have been provided. A sample request form is
provided as Attachment 3.
The Act includes specific provisions governing electronic records. If a request seeks records
in a specific format – e.g., hard copy or electronic format – they must be produced in that format,
16 Government Code § 6253.1(d).
17 Government Code § 6253.1(a).
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so long as they were created in that format originally.18 It is not necessary to reconstruct records
that were once electronic back into that format, if they have been changed.19 It is not necessary to
produce records in electronic format if it would jeopardize the security or integrity of the original
record or any proprietary software in which it is maintained.20 It is appropriate to offer to
produce records in an electronic format, but it is not permissible to make them available only in
electronic format.21 Members of the public are entitled to copies of records in electronic form,
although the City should take care in providing records that are subject to manipulation in their
original electronic form.22 For example, City staff should consider providing records that contain
the City of Saratoga’s logo in PDF format, since that is less easily manipulated than word
processing documents.
C. Responding to a Request
The law provides for the immediate review of public records that are clearly not exempt from
disclosure. For simple requests and when staff are available to allow immediate review, persons
requesting records in person should be given the records or granted the opportunity to review the
records at the time the request is made. For example, a request for the agenda of an upcoming
City Council meeting should be immediately fulfilled by giving the agenda to the requestor or
allowing the requester to review it. For more complex requests (e.g. for review of files that could
contain records not subject to disclosure or that will require extensive searching of the City’s
files) immediate review will generally not be feasible. In these cases, the requester should be
informed that the City will send a letter when it has ascertained whether it has responsive
records.
The City must respond in writing within ten days to every request that is not immediately
fulfilled. The response must state whether records will or will not be disclosed and the reasons
for the City’s determination.23 If records are available for disclosure, the response must estimate
18 Government Code § 6253.9(a)(2).
19 Government Code § 6253.9(c).
20 Government Code § 6253.9(f).
21 Government Code § 6253.9(d), (e).
22 Government Code § 6253.9(f) provides that “[n]othing in this section shall be construed to require the public
agency to release an electronic record in the electronic form in which it is held by the agency if its release would
jeopardize or compromise the security or integrity of the original record or of any proprietary software in which it is
maintained.”
23 Government Code § 6253 (c).
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when the records will be available for inspection or when the copies of the record will be
available. It is not necessary to provide the actual records within the ten-day initial response
time.24 However, records must be made available within a reasonable amount of time based on
their volume and complexity. If responsive records exist but are not available for disclosure due
to an exemption, the written response must indicate the reasons why the records may not be
disclosed. (In addition, if the request is denied under the “catch-all” exemption, it must set forth
the names and titles or positions of each person responsible for the denial.25) The reasons for not
disclosing records should be stated clearly and should be reviewed in advance by the City
Attorney. In some cases there may be requests for which there are some records to be disclosed
and others that are not subject to disclosure; in those cases the letter to the requestor should
explain the situation consistent with the guidelines above.
The City may, when appropriate, respond to a Public Records Act request within ten days by
stating that no records exist that respond to the request and therefore none can be produced.
However, this response is permissible only if the City has first made a reasonable effort to obtain
additional clarifying information from the requester that will help identify the record(s) sought,
and, where appropriate, conducted a reasonable search.26
The ten day response deadline is an outer limit. Staff should strive to respond in a shorter
time period whenever possible. For simple requests, staff can respond in a streamlined fashion
within the ten days by stating in the response that the requested records are available for review
or, if the requester sought copies, by including the requested records. A sample streamlined
response is provided as Attachment 5.
In unusual circumstances,27 the ten-day time limit for the City’s initial response may be
extended by written notice for up to 14 more days by setting forth the reasons why an extension
is required and the date on which the response will be provided. The written response must also
contain an estimated date on which the records will be made available.28
24 Government Code § 6253 (c).
25 Government Code § 6253(d).
26 Government Code § 6253.1(b).
27 “Unusual circumstances” means the need: (1) to search for and collect records from distant locations; (2) to search
for, collect and appropriately examine a voluminous amount of records; (3) for consultation with another agency
also having substantial interest in the matter; or (4) to compile data, to write programming language or a computer
program, or to construct a computer report to extract data. Government Code § 6253(c).
28 Id.
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Once staff has identified and collected the responsive records a requester has the option of
reviewing the City’s original files, of requesting copies, or both. There is no charge for the
inspection of original files. A staff person should be present in the room to respond to additional
requests and to make sure no records are removed.
D. Charges for Copies of Public Records
Public records are generally open to inspection at all times during the City’s normal business
hours. A charge is imposed by the City’s fee schedule for the cost of copying the records.29
Records are not required to be copied until appropriate costs have been paid by the requester.
The City’s direct cost of duplicating unusual records – e.g., blueprints, computer disks, DVDs,
electronic back-up tapes – are calculated on a case-by-case basis. Note that some statutes
establish specific charges for specific types of records,30 which supersede the City’s established
charge.
The requester must bear any added cost of producing electronic records if (1) the request
calls for producing the record at a time different than the time the record would ordinarily be
produced (e.g. a copy of the check register for a period other than the one typically prepared for
the City Council); or (2) the request requires data compilation, extraction, or programming.31
These additional costs cover the cost to construct a record and the cost of programming and
computer services necessary to produce a copy of the record.32
If a request for the compilation of electronic records seems vague, complex or burdensome,
staff may wish to consult with the City Attorney on how best to comply with the request or ask
the requester for clarification. If it is unclear how to format a response or if it will create undue
programming, consult the City Attorney.
IV. Procedures for Locating and Reviewing Records
The City Clerk is the custodian of records and is generally responsible for responding to
29 Government Code § 6253(b).
30 Id. For example, costs for copying California Conflict of Interest Form 700s are set by statute at $0.10 per page.
31 Government Code § 6253.9(b).
32 Id.
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Public Record Act requests. In addition, each City Department should have a Department
Coordinator to act as a primary contact point for the City Clerk. It is the responsibility of every
City staff person to maintain their files (both paper and electronic) so they can review them and
respond to requests from the Department Coordinator or City Clerk.
The staff person who receives a request is responsible for accepting it and sending it on to the
Department Coordinator and City Clerk for response. If the Department Coordinator is not
available, every staff person should be prepared to take oral or written requests from members of
the public. As noted above, in the most routine circumstances this will mean immediately
providing the requester with a copy of the requested record. For more complex requests, it will
entail filling out a request form (the staff person can request a member of the public to fill out the
request form if they are present but cannot require it), attaching any accompanying written
request from the member of the public, and letting the member of the public know that they will
receive a letter when the City ascertains if it has any responsive records. (As described above,
City staff may also need to help a member of the public clarify a vague request.) If a request is
submitted to a staff person other than the Department Coordinator, that staffer should inform the
requestor that he or she will be working with the City Clerk or Department Coordinator in the
future. The request form and any attached written request should be sent to both the Department
Coordinator and the City Clerk.
After receiving a request, the City Clerk and the Department Coordinator should confer on
how to respond. In some cases, they may want to contact the requester in order to further refine
or clarify the request. They should think about the City’s filing system and determine what
records will need to be reviewed, keeping in mind that “records” also includes those that are only
in electronic form such as e-mail. This may be straightforward in some cases (e.g. a specific
Planning Department application file) and more complicated in others (e.g. a request regarding
City correspondence concerning a particular street). In some cases, every City Department,
Council member and Commissioner may need to review their files looking for possible
responsive records.
The City Clerk should contact the Department Coordinator for any other City Departments
that might have records responsive to the request. Each City Department should assemble any
responsive records they possess and give them to the City Clerk. The City Clerk should review
the records and decide if it is necessary to contact the City Attorney. For example, the City
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Attorney should be contacted about requests for public records that appear to be related to
pending or current litigation, personnel records or other potentially confidential or exempt
information. City Attorney review will be necessary if it appears that any of the records are
exempt from disclosure in whole or in part. Following City Attorney review, the City Clerk or
Department Coordinator will respond to the requester.
CONCLUSION
The City conducts the people’s business. That business runs best when the people have
access to the information necessary for them to be informed of and influence the affairs of their
City government. A public records request can come from any person or from an organization
such as the news media, a business entity, or association. It can be made orally or through a
formal written request. It may be vague or unusual. It may demand time and creative thinking.
Regardless, no request should be dismissed out of hand. As the California Legislature stated in
the first section of the Public Records Act, “access to information concerning the conduct of the
people’s business is a fundamental and necessary right of every person in this state.”33
//
33 Government Code § 6250.
1
ATTACHMENT 1
HOW TO PROCESS A PUBLIC RECORDS REQUEST
All employees need to be prepared to receive requests for public records. This document will
outline the basic steps of receiving a request; for detailed information, please see the City of
Saratoga Public Records Act Handbook.
General Instructions and Information
Three key points to remember as you receive a request:
· Use common sense and courtesy.
· Understand that members of the public are unlikely to know exactly where to find the
documents they are interested in.
· Never ask why the records are being requested, unless doing so is necessary to clarify a
vague or unclear request.
Public records requests can come in many forms. A request may…
· Be formal or informal,
· Come from an individual, organization, business, association, or the news media,
· Seek either to review or to copy records.
What is a public record?
· Most City documents are public records.
· Generally, only documents wholly unrelated to City business are deemed “non-public.”
· Both paper and electronic files are considered public record.
What are the responsibilities of the City and its employees?
· The City must release all relevant, non-exempt records that exist at the time the request is
made.
· All City employees are expected to maintain their files in a manner that makes it possible
for them to respond to requests from their Department Coordinators in a timely fashion.
· If a requester refuses to fill out a request form, City staff should complete it themselves.
The City is not required to…
· Create new records, answer questionnaires, or summarize available information.
· Provide records that come into existence after the date of the request.
· Provide access to records that fall under one of the categorical exemptions or the general
exemption. The City Attorney’s Office should be consulted whenever exemptions are
being considered.
· Waste excessive staff time searching for records that respond to a vaguely worded
request. All requests should be clearly worded so as to assist staff in identifying
responsive records.
To respond to a request for public records, please turn to page 2.
2
Step 1: Receive the Request
If you receive a request for public records, refer the requester to the Department Coordinator; if
the Department Coordinator is not available, consult the following table:
If the request is… Example Do this…
routine Council agenda
or minutes
Provide the record immediately. No
form is required.
for a document that is readily
available and clearly non-exempt,
when staff are free to assist
Municipal Code
Have the requester fill out a request
form, or complete it yourself. Provide
supervised access immediately.
vague or unclear “I want records
of contractors.”
Help the requester clarify and focus his
or her request. If necessary, you may
ask why the record is being requested.
Requests should be specific so that staff
time is not wasted digging through
records. Proceed to step 2.
more involved, or requires research Staff emails on
a specific topic. Proceed to step 2.
associated with existing or pending
litigation, or is a subpoena or court
order
Forward the request to the City
Clerk, who must consult with
the City Attorney’s Office.
for a record that does not exist
A list of all
black oak trees
in the City.
The City is not required to
create new records to respond
to a public records request.*
*Err on the side of caution. Make sure to forward a filled-out request form to the City Clerk and
your Department Coordinator, unless you are 100% certain the requested records do not exist.
Step 2: Accept and Forward the Request
Have the requester complete the request form, or complete it yourself. (See Attachment 3 for a
sample request form.) After receiving the filled-out form, or filling the form out yourself,
provide the requester with the following information:
· He or she will receive notification from the City within 10 calendar days as to the status
of his or her request;
· This notification will include information on whether any requested records are exempt,
and will provide a date and time when the records will initially be available for review;
· He or she will be working with the Department Coordinator and/or the City Clerk in the
future.
Forward the filled-out request form to both your Department Coordinator and the City
Clerk. If you are your Department Coordinator, continue to step 3. If you are not your
Department Coordinator, you will potentially need to look through your own files for responsive
documents. Be ready to respond to records-related communication from your Coordinator.
3
Step 3: Prepare a Response
The City is required by law to respond to each request within 10 calendar days.
· Records do not need to be actually released within this time, but should not be
unreasonably delayed.
· Under unusual circumstances, the 10-day notification period may be extended for up to
14 days; however, the City must notify the requester of the delay, and provide a reason
for the delay and a date when a full response will be made. Consult with the City
Attorney’s Office.
· The response must list any exempt documents, and any fee for copying requested records.
In order to prepare this response, responsive records must be identified and collected.
· Department Coordinators are responsible for searching through their department’s files.
· The City Clerk will coordinate between departments and collect records from each
department.
· To facilitate public access, it is imperative that Department Coordinators provide
documents to the City Clerk in a timely manner.
Coordinators will need to strategize with the City Clerk to determine how to respond to each
request. In order to respond to a request, the City must consider:
· The nature of any requested records that are electronic;
· Whether any of the requested records are exempt; and
· Whether any fees should be assessed.
3a. Electronic Documents
Special rules apply to certain electronic documents. Consult the following table:
If the request asks for… Then…
a record in electronic rather than paper format
The City must provide the record in whatever
electronic format the City stores it in.
If the City uses a particular format for creating
copies of the record for its own use, that same
format must be used in making a copy
available to a member of the public.
a record that was once electronic, but has since
been changed
The City is not required to reconstruct the
record back into electronic format. For
example, a database of information that was
used to generate a paper report does not need
to be provided as electronic data. The existing
printed report will be a sufficient record.
a record that, when provided in electronic
format, would endanger the security or
integrity of the original record or of any
proprietary software in which it is maintained
The City is not required to provide such a
record in electronic format. The City Clerk
should consult with the City Attorney’s Office.
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3b. Exemptions
Certain records are exempt from disclosure. A particular record may be…
· Categorically exempt, due to specific provisions in the Public Records Act or another
law.
· Generally exempt, because of some public interest in nondisclosure.
The City Clerk should review the responsive documents and determine whether any of them are
exempt. Consult the following table for a basic listing of exemptions:
Categorical Exemptions The General Exemption
There are many categorical exemptions. The most
significant for the City are:
1. Litigation records related to ongoing and pending
litigation.
2. Personnel, medical or similar files where disclosure
would be an unwarranted invasion of personal privacy.
3. Confidential information required of a taxpayer in
connection with payment of any tax to the City.
4. Preliminary drafts, notes, or memoranda not
retained by the City in the ordinary course of business if
the public interest clearly supports non-disclosure.
5. Personal financial information required of an
applicant seeking a license, certificate, or permit.
6. The contents of real estate appraisals or
engineering or feasibility estimates and evaluations
made for or by the City in connection with the acquisition
of property and construction contracts, until all of the
property has been acquired or all of the contracts have
been consummated.
7. Records protected from disclosure by federal or
state law other than the Public Records Act. For the
most part the City has few of these records but if a record
contains what appears to be sensitive information, consult
with the City Attorney.
The general exemption provides a
“catch-all” exemption for certain
records that are not categorically
exempt. The general exemption…
· Is meant to protect the public
interest.
· Is not meant to hide government
incompetence or wrongdoing.
· Should be used with care. The
City will bear the burden of proof
if the exemption is challenged.
To withhold records under the
general exemption, the City must
consider…
· The public interest served by
disclosing the record.
· The public interest served by
withholding the record.
· Whether the public interest in
withholding the record outweighs
the benefits of disclosure.
For example, in 1999 the Santa Clara
County Superior Court ruled that the
City of San Jose was not required to
release the names and contact
information of people who
complained about airport noise, as
this could discourage such
complaints.
ALWAYS consult with the City Attorney’s Office before refusing a request
due to exempt status.
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3c. Fees
The City may assess a fee to cover the direct cost of duplicating records. The City Clerk is
responsible for determining fees and providing an estimate of the total cost in the response letter.
Fees will vary depending on the record, the nature and extent of the request, and the actual cost
of reproducing records.
If the request is… Then…
for printed copies of records readily available
to be printed or photocopied Refer to the City’s fee schedule.
for a DVD, CD, or other audio/visual record Refer to the City’s fee schedule.
to inspect original files There is no fee. The City cannot charge for
inspecting original files.
for an electronic record Refer to the City’s fee schedule.
for an electronic record which is only
produced at regularly scheduled intervals, or
which requires data compilation, extraction,
or programming to produce
The City may charge the costs of programming
and computer services necessary to produce a
copy of the record.
unusual (e.g., blueprints, electronic back-up
tapes) The fee is calculated on a case-by-case basis.
large or cumbersome
The City may ask the requester to mark the pages
he or she would like copied, deliver the marked
pages to a copying service, and charge the cost to
the requester.
OR
The requester may arrange to have a private
copying service perform the duplication at City
Hall at his or her expense.
Once documents have been collected from appropriate departments, exemptions and fees have
been considered, and the City Attorney consulted if necessary, the City Clerk will send the
response letter to the requester.
Step 4: Provide Copies or Access to Records
The City must provide access or copies within a reasonable period of time.
· The requester will need to be present at City Hall to inspect original records or to pay for
and receive copies.
· When a requester asks to inspect an original record, staff should be present in the room to
respond to additional requests and to ensure that no records are damaged or removed.
Once the requester has inspected the records or received copies, the request can be considered
fulfilled.
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ATTACHMENT 2
FREQUENTLY ASKED QUESTIONS
(For more information please refer to the City of Saratoga Public Records Act Handbook.)
1. Does the City have to create records that do not otherwise exist in response to a
Public Records Act request?
No. The Act requires only disclosure of records that are already in existence. However, care
should be exercised in construing a request too narrowly. As part of Saratoga’s emphasis on
quality customer service, it is a good practice to construe less formal requests for records or
information as a formal request under the Public Records Act. The Public Records Act also
requires public agencies to assist members of the public in making “a focused and effective
request that reasonably identifies an identifiable record or records.” The City must always
facilitate, not frustrate, the production of relevant information to the public to the extent
reasonable under the circumstances. In some instances, staff will have to offer to engage in a
dialogue with a requesting party to assist in record identification, describe the information
technology and physical location, and/or provide suggestions to overcome any practical basis for
denying access to records or information. For example, if records exist in electronic form but
have never been printed out in hardcopy form, the City must provide the records.
2. What if records contain a mix of disclosable and non-disclosable information?
The City must make available “any reasonably segregable portion of a record” after deleting
(redacting) the non-disclosable information.1 Records cannot be withheld simply because an
easily segregable portion contains information that is exempt from disclosure. The City is
required to disclose public records that also contain information that is not disclosable but can
easily be redacted (e.g., purely personal information like social security numbers, third party
proprietary or trademark information, or other exempt information). Consultation with the City
Attorney is advised prior to disclosure of records involving a mixture of disclosable and non-
disclosable information.
1 Government Code § 6253(a)
2
3. Does a Public Records Act request have to be in writing?
No. A public agency must comply with an oral request for records, although it is probably a good
idea for purposes of clarity to either request that it be put into writing, or that a request form be
completed by staff, or that a statement be made in the written response as to what the request is
understood to be. (See the City of Saratoga Public Records Act Handbook.)
4. Are records created in confidence subject to production under the Public Records
Act?
Records protected by a recognized legal privilege (e.g. attorney/client communication) do not
lose that protection because they are in the possession of the City.
Many records created with an expectation between the parties that they will be held in
confidence, or marked “confidential,” are not protected by any recognized legal privilege,
however, and must be produced in response to a Public Records Act request. Examples include
letters from the public and contractor bids after the contract has been awarded.
5. Are agreements to settle a lawsuit or claim subject to the Public Records Act?
Yes, after the lawsuit has been dismissed. The “pending litigation” exemption does not apply
because dismissal ends the lawsuit. The terms of a settlement agreement, including the amount of
money, if any, paid to the claimant, are subject to disclosure after the lawsuit has been finally
resolved. However, drafts of the settlement agreement are not disclosable. Records subject to
attorney-client privilege are also non-disclosable.
6. Does the “pending litigation” exemption apply to all records the City legitimately
anticipates will be involved in future litigation?
No. The exemption applies only where litigation, or a formal claim, is on file. It applies only to
records specifically prepared by the City for use in litigation, which the City reasonably has an
interest in keeping to itself, and only until the litigation has been finally adjudicated or otherwise
3
dismissed/resolved.2 The Act provides a separate exemption for records that are legally
privileged, such as those prepared by (or for) an attorney in anticipation of future litigation.3 But
neither the pending litigation exemption nor the legal privilege exemption protects records
simply because they might be relevant to pending or future litigation.
7. Should a request that references the federal Freedom of Information Act (FOIA), or
some other disclosure law, be treated as a request under the Public Records Act?
Yes. The City’s policy is to be responsive to all reasonable requests for information regardless of
their format. The written response should notify the requester that the other statute does not
apply but that, as a courtesy, the City is treating the request as having been made under the
California Public Records Act.
8. How extensive a search must be made to locate records in response to a Public
Records Act request?
The City has an obligation to make a reasonable search for all records in its possession. What is
reasonable under any particular set of circumstances may vary, and consultation with the City
Attorney in response to a specific request is encouraged. In addition, the City has an obligation to
assist members of the public in making public records requests. Specifically, to the extent
reasonable, the City must: (1) assist a member of the public to identify records and information
that are responsive to his/her request or to the purpose of the request, if it has been identified; (2)
describe the information technology and physical location in which the records exist; and (3)
provide suggestions for overcoming any practical basis for denying access to the records or
information sought.4
9. At what point does contract bid information submitted by a bidder become subject
to a Public Records Act request?
Contract bid information submitted by bidders becomes public after the bid is awarded.
2 Board of Trustees of the California State University v. Copley Press 132 Cal. App. 4th 889, 897-98 (2005).
3 Gov’t. Code § 6254(k).
4 Government Code § 6253.1
4
10. Should the City inform individuals or organizations if a request is made for records
pertaining to them?
Yes. The Public Records Act does not impose such a requirement. However, as a matter of
policy the City prefers to inform individuals and organizations of a request pertaining to them if
it is possible to do so without undue time or expense. Consultation with the City Attorney in such
matters is encouraged.
11. Are telephone records of public officials subject to the Public Records Act?
This question provides an example of how complex questions of disclosure can be under the
Public Records Act. In a case called Rogers v. Superior Court (Los Angeles County) 19
Cal.App.4th 469 (1993), a reporter asked the City of Burbank to disclose the full phone numbers
of all phone calls made and received by City officials on phones paid for by the city. The court
analyzed this request under the “catchall” exemption of Section 6255. The requester’s public
interest was in if City official’s decisions were being unduly influenced by particular individuals
or interest groups. The City cited as contrary public interests the deliberative process privilege
and the privacy interests of the City officials and the third parties whose numbers would be
disclosed.
The court’s decision was based solely on the grounds of the deliberative process privilege. It held
that “the wholesale production of all City-reimbursed telephone records over a one-year period”
violated the deliberative process privilege because disclosure of the records would disclose the
identity of persons with whom the government officials had consulted and thereby disclose their
mental processes and interfere with the flow of information to them. However, the court also
noted “that the public interest in disclosure might be weighed more heavily where certain
specific information contained in a limited number of records is sought in a focused and limited
request.”
So while a very broad request for telephone records might not be permitted, a more focused one
might be. Again, however, a court would weigh (and City staff should weigh with the assistance
5
of the City Attorney) the public interest in a narrower request against factors like the deliberative
process privilege and the constitutional right to privacy.
12. Is the City required to produce records pertaining to uncashed warrants or checks
in response to a Public Records Act request?
Yes, although the warrant or check numbers may be redacted to prevent counterfeiting, as well
as purely personal, private information such as Social Security Numbers.
13. Are all personnel records subject to the Public Records Act?
Not every record, but in many instances, yes. The Act does contain an exception for personnel
records but there is a public right to know basic information such as who the City employs/hires
and on what terms. Appointment letters, employment contracts, employee qualifications (e.g.,
resumes, employment applications), general non-personal employee benefits information, and
salary information are all subject to disclosure. Purely personal information contained in those
records – e.g., social security numbers, individual taxes/withholding, individual selection of
benefits, personal retirement plan information, home/personal address and telephone numbers –
is exempt and should be redacted.5 Performance evaluations are not subject to disclosure. 6
14. Are private building plans subject to disclosure?
Architectural plans are copyrighted pursuant to Federal copyright law, and the compulsory filing
of them pursuant to an ordinance does not give others the right to copy them. See Smith v. Paul,
174 Cal. App. 2d 744, 751 (1959). The provisions of Cal. Health & Safety Code §§ 19850 et seq.
require a city building department to maintain the building plans for every building in the city,
with certain exceptions (including single family dwellings) and states that they are open for
inspection as a public record. However, copying of the plans is prohibited unless written
permission is requested and obtained from the professional who prepared them and from the
5 Govt. Code § 6254(c) and § 6255; see also Braun v. City of Taft, 154 Cal. App. 3d 332 (1984).
6 Versaci v. Superior Court, 127 Cal. App. 4th 805 (2005).
6
current owner of the building. Further, the person requesting the plans must file an affidavit
containing certain specified statements. See Cal. Health & Safety Code § 19851(c).
15. May I ask why a person is asking for the information contained in their request?
No. As a general rule, City staff should never ask why records are being requested. An exception
to this general rule is that City staff should ask why records are being requested if that
information is necessary to identify any responsive records because a request is vague or unclear.
ATTACHMENT 3
SAMPLE PUBLIC RECORDS ACT REQUEST FORM
***************For Official Use Only***************
Request Accepted By: Records Produced By:
___________________________ _________________________
Print Name
___________________________ _________________________
Title
___________________________ _________________________
Date
The following information is OPTIONAL but may assist in complying with your request.
_______________________________
(Date/Time)
_______________________________ _____________________________
(Name) (Phone)
_________________________________________________________________
(Mailing Address or E-mail Address)
RECORDS BEING REQUESTED:
(For each record, describe type, date, subject, title, etc. Please be very specific.)
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
Your Request will be processed in compliance with the Public Records Act (Government Code Sections 6250 et seq.)
Mail (to above address): _______ Pickup: ______ Cost: _______
CITY OF SARATOGA
REQUEST FOR PUBLIC
RECORDS
ATTACHMENT 4
SAMPLE INITIAL RESPONSE
[CITY OF SARATOGA LETERHEAD]
[DATE]
John Q. Public
1234 Main Street
Saratoga, CA 95070
Re: Public Records Act Request of [DATE]
Dear Mr. Public:
The City of Saratoga (“City”) has received your request for public records dated
[DATE]. A copy of the request is attached. We have concluded that the City possesses
certain identifiable records that fall within the scope of your request. The City is in the
process of reviewing those records to determine whether any are exempt from disclosure
pursuant to the Public Records Act or other laws. We expect that review to be completed
by [DATE]. When the review is completed we will notify you that the disclosable records
are available for your review. You may review records at the City offices and you may
request that we provide copies. A fee applies for the cost of duplication as set forth in the
attached fee schedule. We will inform you of the estimated cost of copies when our
review is complete.
Please do not hesitate to call me if you would like to discuss this matter further.
Very truly yours,
[Name]
[Title]
Enclosures
- Records Request of [DATE]
- City of Saratoga Record Duplication Fee Schedule
ATTACHMENT 5
SAMPLE STREAMLINED RESPONSE
[CITY OF SARATOGA LETERHEAD]
[DATE]
John Q. Public
1234 Main Street
Saratoga, CA 95070
Re: Public Records Act Request of [DATE]
Dear Mr. Public:
The City of Saratoga has completed the timely review of its records required by
Government Code section 6253(c) in response to your Public Records Act request of
[DATE]. A copy of your request is attached. The City has determined that it possesses
the records you requested and that none are exempt from disclosure. These records will
be available for your inspection during normal business hours at the Saratoga City Hall
starting [DATE]. [Or: As you requested, copies of these records have been made and are
enclosed with this response. The cost for copies is $___ based on the enclosed fee
schedule. Please remit payment to: XXX.]
Please do not hesitate to call me if you would like to discuss this matter further.
Very truly yours,
[Name]
[Title]
Enclosures
- Records Request of [DATE]
- City of Saratoga Record Duplication Fee Schedule
ATTACHMENT 6
SAMPLE FINAL RESPONSE [CITY OF SARATOGA LETERHEAD] [DATE]
John Q. Public
1234 Main Street
Saratoga, CA 95070
Re: Public Records Act Request of [DATE]
Dear Mr. Public:
The City of Saratoga has completed its review of the records you requested on
[DATE] and has determined it possesses certain identifiable records that fall within the
scope of your request. We estimate the records will be available for your inspection
during normal business hours at the office of the City Clerk at Saratoga City Hall at the
address above starting [DATE]. If you wish to have copies of these records made, the
cost of duplication in accordance with the City fee schedule must be paid in advance. We
estimate the cost of copies will be [ESTIMATED COST]. If you would like copies,
please provide us with a check in that amount and we will provide the copies in the
manner you request.
[If applicable: You requested certain records which are statutorily exempt from
disclosure including intra-agency memoranda that are not retained by the City in the
ordinary course of business are exempt from disclosure under Government Code section
6254(a). These records will not be included in the records provided for your review.]
[If applicable: The City has determined that certain records you requested are
exempt under the Government Code section 6255 because the public interest served by
not disclosing the records clearly outweighs the public interest served by disclosure of the
records. [STATEMENT DEMONSTRATING THE PUBLIC INTEREST IN NON-
DISCLOSURE CLEARLY OUTWEIGHS THE PUBLIC INTEREST IN
DISCLOSURE.] The following persons are responsible for this determination: [NAMES
WITH TITLES OR POSITIONS]. These records will not be included in the records
provided for your review.]
Please do not hesitate to call me if you would like to discuss this matter further.
Very truly yours,
[NAME]
[Title]
P:\SARATOGA\City Documents\Saratoga Public Records Handbook FINAL DRAFT (06-09-09).doc