California Freedom of Information Act
What is the California Freedom of Information Act?
The Freedom of Information Act (FOIA) provides that any person has the right to request access to state agency records or information except to the extent to which the records are restricted from disclosure by any exemptions contained in the Act. California's version of this Act is the state's Public Record Act (CPRA). The statutes of the Act are contained between Sections 6250 and 6276.48 of the California Government Code. The California Public Records Act is a collection of statutes designed to ensure that the public has access to the public records of California's governmental organizations.
The California Public Records Act defines public records as any writing containing information pertaining to the conduct of the people's business that is created, owned, utilized, or preserved by any state or municipal agency, regardless of physical form or characteristics. The CPRA was passed by the state legislature and signed by Governor Ronald Regan in 1968. The Act has undergone several modifications to date. Some of the significant modifications include the following:
- The Sunshine Amendment Act: Also called Proposition 59, the Sunshine Amendment Act added Article I, Section 3(b) to the state constitution on November 2, 2004. The Amendment added that the public has a right to knowledge about how its government does business, and as such, public bodies' meetings and the writings of public officials and agencies must be made available for public examination.
- Public Record Request Cost Payment amendment: In 2013, the California legislature approved the proposal to incorporate the Public Records Act into the state Constitution and clarified that local governments must comply with requests for publicly available documents. The proposal required local governments to pay the full costs of the requests made. In 2014, the proposed Amendment was approved and passed with a 61.8% vote.
- SB 1421: SB 1421, which took effect in 2019, states that public records will not be restricted from public access if they pertain to an incident in which a law enforcement officer fired a firearm at an individual, an incident in which law enforcement's use of force resulted in death or serious bodily injury, an incident in which a law enforcement officer committed a sexual offense against a resident, or sustained findings of police dishonesty. SB 1421 establishes short time frames for withholding such records during a criminal investigation or enforcement procedure.
The State of California deems the enactment of the CPRA as recognition that the public's right of access to information related to the conduct of the people's business is a necessary and fundamental right of every resident of the state.
What is Covered Under the California Freedom of Information Act?
Per Section 6252(f) of the California Government Code, the California Public Record Act (CPRA) applies to every state office, officer, division, department, bureau, board, commission, or other state agency or body, except the courts and the state Legislature. Note that the records of the Legislature are subject to the Legislative Open Records Act. The CPRA is also applicable to:
- Municipal corporations
- Political subdivisions
- School districts
- Boards, commissions, or agencies thereof
- Local public agencies
- Nonprofit entities that are legislative bodies of a local agency under Section 54952(c) and (d) of the Government Code.
Private entities or corporations that fulfill the following conditions are also subject to the CPRA:
- If the entity is created by an elected legislative body to exercise authority that the elected governing body may lawfully delegate
- If they receive funds from a local agency and have at least one member of the local agency's legislative body appointed to the private entity's governing body as a full voting member of its board.
All records of the agencies listed above are subject to the CPRA and therefore accessible to the public. Per Section 6252(e) of the California Government Code, public records are defined in California to include any writing containing information pertaining to the conduct of the public's business prepared, used, owned, or retained by a state or local agency regardless of physical characteristics or forms. Under Section 6252(g) of the CPRA, "writing" refers to any:
- Transmitting by facsimile or electronic mail
- Any other means of recording upon any tangible thing of any kind of representation or communication, including letters, words, pictures, symbols or sounds, or a combination thereof, and any record thereby created, irrespective of how the record is stored.
According to Section 6253.9 of the CPRA, public agencies with information that constitutes identifiable public records, not exempt from disclosure, that are available in electronic formats must make such information available in electronic formats when requested. However, Section 6253.9 does not require the release of records in electronic format where such an action would jeopardize the integrity or security of the original record or of any proprietary software in which it is maintained.
Californians' access to public records includes both the right to inspect public records and obtain exact copies of the records unless making exact copies is impracticable. Telephone records and emails are generally open to the public unless there are compelling reasons to conceal them. Text messages pertaining to official agency business also fall within the scope of "writing" under the CPRA.
What Records are Exempt from the Freedom of Information Act in California?
Certain information must remain withheld from public inspection to safeguard individual privacy and enable local governments to negotiate successfully and seek confidential legal counsel. Per Section 6254 of the Government Code, records exempt from public disclosure under the California Public Record Act include:
- Preliminary drafts, notes, or inter- or intra-agency memos: Preliminary drafts, notes, or inter- or intra-agency that are not retained in the ordinary course of events by the public agency, if the public interest in retaining such records clearly exceeds the public interest in disclosure. While the exemption protects "pre-decisional writings including advisory views, suggestions, and policy considerations" from disclosure, it does not apply to severable factual evidence included in deliberative memos.
- Litigation Records: Records relevant to current litigation in which the public agency is a party or claims filed according to the Government Claims Act are excluded from disclosure until the pending lawsuit or claim is completely adjudicated or otherwise resolved. This exemption does not apply to records established before litigation and relevant to it but rather to records made for the suit. Several documents excluded from disclosure under this exemption are also exempt from disclosure as attorney-client confidential information or attorney work product.
- Personnel Records: Section 6254(c) of the Government Code exempts from public disclosure, personnel, medical, or similar files that would constitute an unnecessary invasion of personal privacy.
- Criminal Investigations: Section 6254(f) of the Government Code exempts from disclosure records of complaints to investigations conducted by, records of intelligence information or security procedures of law enforcement agencies. Specified information from arrest records and police reports is disclosable.
- Real Estate Appraisals: No government agency is required to disclose the contents of real estate appraisals, engineering or feasibility estimates, and evaluations prepared for or by the state or local agency in connection with the acquisition of property or with prospective public supply and construction contracts until the entire property or contract agreement has been obtained.
- Taxpayer Information: Government Code Section 6254(i) exempts from disclosure information required from any taxpayer in connection with the collection of local taxes received in confidence, and disclosure to other persons would result in an undue competitive disadvantage to the person providing the information.
- Library Circulation Records: Government Code Section 6254(j) exempts library circulation records maintained for the purpose of identifying the borrower of items accessible in libraries, as well as library and museum resources created or purchased for the sole purpose of reference or exhibition. The exemption in this section does not apply to records of borrowers' penalties. Under some situations, libraries may be mandated to make such records accessible to law enforcement officers.
- Privileged Records: Under Section 6254(k) of the Public Records Act, any document protected by another law is excluded from disclosure.
- Security Assessment: Government Code Section 6254(aa) protects a document prepared by or for a state or local agency that assesses the agency's vulnerability to a terrorist attack or other criminal attack intended to disrupt the agency's operations and is intended for distribution or consideration in a closed session.
- Election Records: Per Section 6253.5 of the Government Code, referendum, initiative, and recall petitions are not allowed to be disclosed except as to specified individuals, including the petition's proponents, under specific circumstances. However, the CPRA permits the disclosure of voter registration records for election, scholarly, political, journalistic, or governmental purposes.
- Public Utility Records: Under the CPRA, the name, credit history, utility usage data, residential address, or phone number of utility customers of local agencies are not required to be disclosed except in certain specified circumstances outlined in CORA statutes, such as an authorized request for release by an agent or family member of the person to whom the information pertains, or when the public interest in nondisclosure is clearly outweighed by the public interest in disclosure.
- Public Officials' Address and Phone Numbers: No person may knowingly post on the Internet the telephone number or home address of any elected or appointed official, or of the official's residing spouse or child, with the intent of causing imminent great bodily harm to that individual or threatening to cause imminent great physical harm to that individual.
The California legislature also authorizes nondisclosure of a record when an agency can prove that the public interest served by nondisclosure far outweighs the public interest served by its disclosure.
How Do I File a California Freedom of Information Act Request?
You may start with an informal request when filing a request to obtain a public record under the CPRA in California. The request may be made over the telephone. However, you must first decide which agency maintains that record before filing a request. Visit the website of the agency to access the applicable contact number. The agency may also provide a contact form on its website for requesters to complete a CPRA request. Many other agencies also provide links on their websites for requesters to download CPRA request applications forms which may be completed and mailed to the agencies' mail addresses.
The State Bar of California
ATTN: Public Records Request
10th Floor, 180 Howard Street
San Francisco, CA 94105
Alternatively, you may also complete a written form and submit it by electronic mail or mail to the relevant address.
Also, to file a CPRA with the state Office of the Attorney General (OAG), you may download and complete a fillable form on the Office of Attorney General OAG website and mail it to the address on the form. You can also complete an online CPRA request on the OAG website.
If you make an informal request over the telephone and the information officer is not able to grant your request over the phone, the officer will typically provide the necessary steps for making a formal request in writing. According to Section 6253.1 of the Government Code, while making a formal request, you should address the letter to the agency and include the following information as appropriate:
- Your first and last names, mailing address, email address, and telephone number (you have the right to make an anonymous request, but providing these details might make it easier to communicate your request with the information officer)
- A precise description of the record(s) you want, or, if you are unsure how to describe the records you seek, a statement of your reason for obtaining information and a request that the agency help you in identifying relevant records;
- Date limits for the search required.
- If you believe that the record will be difficult to locate, consider providing clues that may aid the agency in the search.
- A statement that if sections of records are exempt, the relevant nonexempt sections of the records must nevertheless be disclosed.
- Restriction on pre-authorized costs or a request for a cost waiver, together with your justification for the waiver request.
You may request either to inspect the records or to have copies produced. Viewing records at the agency's office will usually be faster. It can allow you to narrow down the list of documents you want copies of and minimize your copying costs.
What is the Cost of a Freedom of Information Act Request in California?
Pursuant to Section 6253.9 of the California Government Code, unless permitted by legislation, a government agency may charge you only the "direct cost" of copying records. For documents, the term "direct cost" refers to the cost of photocopying (approximately 10 to 25 cents per page). In the case of electronic data, "direct cost" may refer to the cost of generating an electronic copy of the record (the cost of the CD/DVD used, as well as the cost of constructing the record, programming, and computer services if this is required).
A statutory charge may be more than the direct cost of duplicating a record but cannot exceed the cost of providing the copy. Although the CPRA has no charge waiver provision, agencies may waive or lower costs at their discretion. For instance, copies of public records are charged at 10 cents per page by the State Bar of California. The first 10 pages are provided for free. Additionally, the State Bar may charge for mailing, document certification, data extraction to create the record, and other related expenses.
How Long Does it Take to Respond to a Freedom of Information Act Request in California?
Agencies are expected to ensure that records are promptly accessible to requesters. After submitting your request to inspect records, you will be granted immediate access to those documents within the agency's record inspection hours. If you request copies, the agency must respond within 10 days, except under unusual circumstances, when it may grant itself a 14-day extension.
Unusual circumstances which may result in a delay include when the agency is required to:
- Locate and collect records from outside the office processing the request, such as from regional offices, or field facilities
- Locate and process a large number of records in a single request
- Consult with other agencies or another division of the same agency with a substantial interest in the determination of the request
- Compile data, write a programming language or computer program, or develop a computer report to extract data.
If an agency does not reply to your CPRA request, you make several steps to remedy the situation. Firstly, you may contact the agency to verify if the denial is based on an exemption. Ask if the agency will waive the exemption as exemptions can be permissive and are not always mandatory. You may request that the nonexempt sections of the record be released with the exempt portions redacted.
Also, you may contact the agency to verify if they have any process in place to appeal denials. Some agencies have formal procedures for administrative appeals and administrative review of denials. It is recommended that you consider this option before pursuing court action.
If the agency does not have a formal administrative appeal process or your request is denied after administrative review, you may pursue court review of the denial under Sections 6258 - 6260 of the California Government Code.