LAWS TO HELP GATHER INFORMATION AND CHALLENGE PROPOSED RULES AND REGULATIONS
The California Public Records ActThe California Public Records Act (CPRA) is the law that allows the public and journalists to access government records. The law covers all state and local agencies with the exception of the state Legislature, private non-profit corporations and entities, federal entities and courts (with the exception of itemized statements of total expenditures and disbursements). It does not cover federal agencies; the Freedom of Information Act covers records held by the federal government. The CPRA presumes that all records held by the government are accessible to the public unless expressly made exempt from disclosure. Thus, members of the public have the right to (1) inspect records free of charge and (2) obtain copies of records upon payment for directs costs of duplication or a statutory fee. However, there are records that are exempt from disclosure, but to ensure maximum access to records, agencies and the courts must apply these exemptions narrowly. Once a member of the public makes a request to an agency, the agency must either produce the records within a reasonable amount of time or justify its decision to withhold the record. The CPRA also allows a member of the public to sue an agency in order to enforce the law and provides that a prevailing plaintiff can recover attorney fees and costs of bringing a suit.
What Agencies Are Governed by the Act?
State Agency – includes every state office, officer, department, division bureau, board, and commission or other state body or agency, except those agencies provided for in Article IV or VI of the California Constitution. Those exempted include the state Legislature and the courts. Courts and court administrative bodies are not subject to the CPRA. §6252(f) Pursuant to §6261 an itemized statement of total expenditures and disbursement of any agency provided for in Article VI of the California Constitution shall be open for inspection. Local Agency – includes a county; city, whether general law or chartered; city and county; school district; municipal corporation; political subdivision; or any board, commission or agency thereof; other local public agency; or entities that are legislative bodies of a local agency pursuant to §54952(c) and (d) (i.e. a committee that governs a private corporation that receives funds from a local agency). §6252(a) In addition, if a legislative body is subject to the Brown Act, it is subject to the CPRA. Thus the CPRA also applies to certain private, non-profit entities that perform governmental functions.
What Right Does the Act Create for Members of the Public?
The CPRA creates a right to see public records. Public records are open to inspection at all times during the office hours of the state or local agency and every person has a right to inspect any public record (with exceptions). §6253
What Are Public Records?
Public records 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 or local agency regardless of physical form or characteristics.” §6252(e)
Writing – includes “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.” §6252(g) Electronic records are included, such as computer date, however software may be exempt. §6252(f)
Containing information relating to the conduct of the public’s business – is intended to cover every conceivable kind of record that is involved in the governmental process. Only purely personal information unrelated to the conduct of the public’s business could be considered exempt from this definition.
Prepared, owned, used or retained by state or local agency – means that the records do not necessarily have to be in the actual custody of the public agency if they are prepared, owned, or used by the agency.
Regardless of physical form or characteristics – means that information retained in an electronic format must be made available in any electronic form in which the agency keeps the information. However, an agency is not required to reconstruct a record in electronic format if the agency no longer has the record available in electronic format. §6253.9
What Records Are Exempt from Disclosure?
The CPRA provides many exemptions and incorporates many other exemptions provided by other laws. The burden is on the agency wishing to deny access to provide the legal basis for its position by showing that the records are covered by a specific exemption or that is is determined the public interest would be better served by non-disclosure. However, even if there is an applicable exemption or a potential justification for non-disclosure, the exemptions created by the CPRA itself are discretionary, not mandatory.
a. Preliminary drafts, notes or memos not normally retained in the ordinary course of business are exempt, provided that the public interest in withholding them outweighs the public interest in disclosure. §6254(a)
In order for an agency to withhold records under the exemption, the agency must show the following:
The requested records are notes, drafts, or memoranda;
The record is one that the agency would not normally retain in the ordinary course of business; and
The public’s interest in disclosing the record clearly outweighs the public interest in making the record public.
Drafts are not exempt if they are final reports. To be exempt the draft must be pre-decisional in that it helped reach a determination.
Drafts are not exempt if they are normally kept on file.
If a draft or memo contains recommendations AND facts; the facts must be disclosed. Statements as to what can, should or must be done about a given state of affairs in terms of government action may be withheld under the exemption. (CBE v DFA, 171 Cal. App. 3d 704 (1985)).
b. Records pertaining to pending litigation and/ or attorney-client privilege. §6254 (b),(k)
Note – records protected by the attorney-client privilege or attorney work-product doctrine remain exempt from disclosure even after litigation is resolved.
The following are types of records that may involve the litigation or attorney-client and work product exemptions:
Correspondence from parties who have sued the government
c. Personnel, medical and similar records §6254(c)
The invasion of an individual’s privacy must be balanced against the public’s need for the information. If the balancing test indicates that the privacy interest outweighs the public interest in disclosure, disclosure of the record by the government would appear to constitute an unwarranted invasion of privacy.
d. Law enforcement and licensing agency records of complaints, and investigative or security files. §6254(f)
e. Public interest test §6255
Public agencies can withhold records when “on the facts of the particular case, the public interest served by non-disclosure clearly outweighs the public interest served by disclosure of the record.”
This provision is contemplated on a case-by-case balancing process, with the burden of proof on the proponent of non-disclosure to demonstrate a clear overbalance on the side of confidentiality. (Michaelis, Montanari & Johnson v. Superior Court, 38 Cal. 4th 1065, 1071 (2006)).
This catch-all exemption has become known as a broad categorical exemption known as the “deliberative process privilege.” This privilege may allow non-disclosure of records that would reveal the deliberations of agency officials, or information relied upon by government officials in their decision-making process. The goal is to avoid undermining an agency’s ability to perform its functions. (Times Mirror Co. v. Superior Court, 53 Cal. 3d 1325, 1342 (1991).
a. Investigative records and the like §6254(f)
The following is a brief list of some of the specific records exempt from disclosure:
Law enforcement information, such as citizen complaints, personnel records such as personal data, medical history, employee advancement, appraisal or discipline or any other information that would constitute an unwarranted invasion of privacy if disclosed;
Certain Department of Motor Vehicle Records
Contents of appraisals;
Certain tax information;
Family and welfare matters;
Certain state investigations and audits;
Medical and health information; and
Confidential submissions to the government.
How Do I Get Access to Records?
Access to records may be through physical inspection of the records at the agency’s office or through written request for copies of records. In either case, a request must be made that identifies the records needed.
Making a Request
A written request is not required. Making a request in writing will however provide you with a record of your request if your request is complicated or you anticipate there will be trouble receiving the records you requested. Also, if you make a request in writing, the agency is required to provide a written response.
You are not required to provide your name or address.
You are not required to state the purpose of you request.
If possible, describe the type of records the agency keeps that would contain the information you want, not just the information you are seeking. The request must “reasonably describe an identifiable record or records.” §6253(b)
Know ahead of time what exemptions may apply. Although you are not required to provide the purpose of your request, in some circumstances the agency may deny your request on the grounds that the disclosure of the information is against the public interest. You may be required to explain how the public will benefit from disclosure of the records you request.
Records must be available for inspection during the regular office hours of the agency. Agencies may have procedures that must be followed, but such procedures can’t limit hours during which records are available. An agency staff does not have to disrupt operations to allow immediate access, but a decision whether to grant access must be prompt. The agency must provide assistance by helping to identify records and information relevant to the request. §6253(d-e); §6253.4(b)
Fees for inspection or “processing” are prohibited. §6253
The agency must respond to a request for a copy of a public record within 10 days. The time for responding can be extended by the agency for an additional 14 days in “unusual circumstances.”
Unusual circumstances – refers to the need to (1) search for and collect requested records from field facilities that are in a separate office than the office processing the request; (2) search for, collect and appropriately examine a voluminous amount of distinct records demanded in a single request; (3) consult another agency having substantial subject matter interest therein; (4) compile data, to write programming language or a computer program, or to construct a computer report.
You are entitled to an exact copy unless it is impracticable to provide one.
Public agencies may charge a fee “covering direct costs of duplication,” (or a statutory fee). You are required to pay these costs in order to obtain copies, usually 10 to 25 cents per page.
Fees for obtaining an electronic copy vary. They are limited to the direct cost of providing a copy in an electronic format.
The California Administrative Procedure ActThe California Administrative Procedure Act (CAPA) governs the adoption, amendment and repeal of regulations by California state agencies. State agencies, with few exceptions, are required to adopt regulations following the procedures established in the APA and the regulations must also be adopted in compliance with regulations adopted by the Office of Administrative Law (OAL) pursuant to California Code of Regulations, Title 1, §§1-280. The CAPA does not apply to regulations issued by the federal government, or by local agencies such as cities, counties and local districts. A state agency cannot enforce any regulation under CAPA unless it has first been adopted as a regulation and field with the California Secretary of state. Regulation – means every rule, regulation, order, or standard of general application or the amendment, supplement, or revision of any rule, regulation, order, or standard adopted by any state agency to implement, interpret, or make specific the law enforced or administered by it, or to govern its procedure. Mandatory Requirements for Adopting Regulations Generally there must be (1) Public notice (2) Opportunity to be heard by the public (3) Filing with the Secretary of State and (4) Publication in the Administrative Code.
In order for an agency to adopt a non-emergency regulation, amend and/or repeal a regulation, the agency making the decision must be in substantial compliance with the following procedural requirements:
- Pre-notice Public Involvement – When there is a complex proposed regulation that can’t easily be discussed during the 45 day comment period then agencies should involve parties who would be subject to the proposed regulations before publication of such regulation.
- Submission of Proposed Action and Accompanying Documents – State agencies are required to submit to the Office of Administrative Law (OAL) (a) a copy of the proposed regulation. And (b) an “initial statement of reasons” for proposing the regulations. The documents submitted to OAL must be made available to the public upon request. For anyone considering challenging a proposed regulation you should first obtain such documents submitted to OAL by the particular agency that proposed the regulation.
- Notice of Proposed Action and Accompanying Documents – Notice must be submitted to the OAL along with proposed regulation. Notice is Published and Distributed – On the next Friday after the OAL receives the notice of proposed action, if the notice and supporting documentation are in order, the OAL will publish the notice in the weekly Regulatory Notice Register.
- Hearing – There is no requirement for the agency to hold a hearing on the proposed regulations unless an “interested person” – one who will be directly affected by the regulation – submits a request for a hearing in writing to the agency no later than 15 days prior to the close of the written comment period.
- Modification of the Regulation or the Record – If the agency makes substantial changes in the regulation it must start the entire process anew, submitting a new notice of proposed action. However, the agency is not required to restart the process if it makes certain lesser changes.
- Submission of the Adopted Regulation to OAL – After adopting the regulation at an appropriate proceeding, the agency must submit the adopted regulation to OAL.
- Review by the Office of Administrative Law – After receiving a proposed regulation from a state agency, the OAL reviews it within 30 working days for necessity, authority, clarity, consistency, reference and non-duplication. If the proposed regulation fails to meet the standards of the CAPA, OAL will return it to the agency, along with the rulemaking file and a notice of deficiency.
- Filing with Secretary of State – If the OAL approves a regulation received from an agency, it transmits it within 30 working days to the Secretary of State for filing. An adopted regulation filed with the Secretary of State goes into effect 30 days after filing unless a statute provides for a different effective date, or the agency requests a different effective date. The filing of an adopted regulation was duly adopted in conformity with the procedures required by the CAPA.
In order for an agency to adopt an emergency regulation on much shorter notice, with much less procedure, there must be a finding by the agency that the adoption of a regulation is necessary to address an emergency. An emergency is defined as “a situation that calls for immediate action to avoid serious harm to the public peace, health, safety, or general welfare.”
Challenging Emergency Regulations
As discussed above, emergency regulations are adopted under an abbreviated process. Whether an emergency justifying the issuance of emergency regulations exists is primarily a matter for agency discretion, but courts are not conclusively bound by the agency’s determination that an emergency exists. (Poschman v. Dumke (1973), 31 Cal.App.3d 932.) The agency’s findings of facts concerning the existence of a genuine emergency, required by §11346.1(b) must be sufficient to provide a basis for judicial review (Id.), and the factual situation they describe must constitute an emergency within the provisions of § 11346.1.
Challenging Regulations Adopted Under the APA
Any interested person may challenge the validity of a regulation or order of repeal of a regulation by bringing a declaratory relief action. The regulation or order of repeal may be declared to be invalid for a substantial failure to comply with this CAPA, or, in the case of an emergency regulation or order of repeal, upon the ground that the facts recited in the finding of emergency prepared pursuant to subdiv. (b) of §11346.1 do not constitute an emergency within the provisions of §11346.1. In addition, a regulation or order of repeal may be declared invalid if:
1. The agency’s determination that the regulation is reasonably necessary to effectuate the purpose of the statute, court decision, or other provision of law that is being implemented, interpreted, or made specific by the regulation is not supported by substantial evidence.
2. The agency declaration pursuant to §11346.5(a)(8) is in conflict with substantial evidence in the record.
Challenges Based on Procedural Violations
A judicial challenge may be brought for a substantial failure to comply with the APA. If a rule constitutes a ‘regulation’ within the meaning of the APA (other than an ‘emergency regulation,’ which may not remain in effect more than 120 days) it may not be adopted, amended, or repealed except in conformity with ‘basic minimum procedural requirements’ (Gov.Code, § 11346, subd. (a)) that are exacting.
Challenges Based on Lack of Substantial Evidence to Support Critical Findings
To be valid, regulations must be reasonably necessary to carry out the statutory purpose (Slocum v. State Bd. of Equalization (2005 134 Cal.App.4th 969), or the purpose of a “court decision or other provision of law that is being implemented, interpreted or made specific by the regulation…” (§ 11350(b)(1).) If the agency’s determination of necessity is not supported by substantial evidence in the record, the court should vacate the regulation. (Id.)
If the declaration of the agency that the proposed regulation will not have a significant, statewide adverse economic impact directly affecting business, required by § 11346.5(a)(8), is in conflict with substantial evidence in the record, the regulation may be challenged.
Regulations which conflict with statutes are void. (American Airlines, Inc. v. Los Angeles County (1976) 65 Cal.App.3d 325)
Regulations which are outside the scope of authority delegated by the legislature are invalid. (Slocum v. State Bd. of Equalization (2005) 134 Cal.App.4th 969).