Earlier this year, I had made a request for information from the County Counsel’s office, it took several months and every so often I would send Assistant County Counsel Dan Cederborg an email asking for an update on the status. He stopped responding, did not return my calls, etc. After awhile, I finally asked Supervisor Matt Rexroad to intercede, he made some calls and within a few days I got exactly what I was asking for.
Government code 6253(c) states, “Each agency, upon a request for a copy of records, shall, within 10 days from receipt of the request, determine whether the request, in whole or in part, seeks copies of disclosable public records in the possession of the agency and shall promptly notify the person making the request of the determination and the reasons therefor.”
It goes on to state, “In unusual circumstances, the time limit prescribed in this section may be extended by written notice by the head of the agency or his or her designee to the person making the request, setting forth the reasons for the extension and the date on which a determination is expected to be dispatched. No notice shall specify a date that would result in an extension for more than 14 days.”
The law actually gives four reasons that constitute “unusual circumstances,” that includes the need to collect the records from other facilities, need to search and examine a voluminous amount of separate and distinct letter, the need for consultation, and the need to compile data or a construct some of computer report.
Note there is no exemption in time for being busy, overwhelmed or understaffed. However, with better communication, the average requester might be willing to cooperate. Unfortunately, when the agency not only fails to respond to requests in a timely matter, but also fails to respond to emails and phone calls requesting updates, it is difficult to garner any sympathy.
In the case of the county, I had already had a request that took four months to fill and so following April 15, I waited three weeks, and on May 7, I sent an email to Mr. Cederborg asking him when I could expect the rest of the response. But he did not reply.
I waited until May 7, and send another email saying this time that I didn’t understand his lack of response and still got no response.
So on May 20, I sent an email to Supervisor Matt Rexroad. I followed it up with an appearance on May 25 before the board of Supervisors explaining what happened. Within four hours of that appearance, I received the documents I have been waiting nearly two months to receive.
That is what precipitated the Woodland Daily Democrat article. We find out, I am not alone. According to the article, “The Yolo County Counsel’s Office has become inundated with public records requests in recent months, applicants are frustrated with delayed response times, and for the first time in several years a private lawyer plans to file a motion against the county to recover attorneys fees associated with the process.”
It continues, “Whether a result of insufficient staffing due to budget cuts, or miscommunication and negligence, private citizens are getting the run-around on documents entitled to them under the Public Records Act.”
Furthermore, “Assistant County Counsel Dan Cederborg said the process has been delayed lately due to an influx of inquiries about the budget and the shooting death of Woodland farm worker Luis Gutierrez. There is not one Custodian of Records for the entire county, but the County Counsel’s Office often handles requests because other departments lack the legal background to discern public from private information.”
They tell the story of attorney Mike Jansen who spent months trying to obtain the information needed to file a claim for his client. It took him six months and three court appearances for Mr. Jansen to receive most but not all of his documents.
“The PRA does not contemplate a six-month delay,” Jansen said. “The PRA cannot allow the government to withhold just because they say this is the law. They are not the law.”
According to the Democrat, Jansen will return to court on the matter July 21 in hopes of collecting $3,000 in attorney fees under Government Code 6259 that states, “The court shall award court costs and reasonable attorney fees to the plaintiff should the plaintiff prevail in litigation filed pursuant to this section.”
The problem as was explained at the outset is that the county is not entitled to withhold documents for longer than 25 for any reason. However, the penalties for non-compliance are almost no non-existent. Under the PRA, petitioners are allowed to litigate to force an agency to comply. If the court rules in their favor, a process that often takes a long time, the agency is compelled to release the document. As we see with the case of Mr. Jansen, the only penalty is that the plaintiff can file a motion to award court costs and reasonable attorney’s fees.
But few people are going take the time and expense to do that. The Vanguard did it once, it took a year and a half to resolve, and in the end, we did not get the document. Had we gotten the document, it was already long after the issue had initially arisen.
“Court costs are the only recourse a person has if wrongfully denied public documents, but few are reimbursed for their time and effort. It may be a routine practice for lawyers, but as a journalist, filing motions against your sources can make for a strained working relationship, Woodland Record publisher Jeff McCallum said,” the Democrat reports.
Jeff McCallum runs a site in Woodland that is similar to ours. “McCallum, who has waited up to 45 days for documents, views the county’s public records process as disorganized. Requests to the city of Woodland have never been met with any delays because there is one person handling all the request and streamlining the process, McCallum said.”
“The county simply needs to put one person in charge of public records,” he said. “Then, the designated person needs to become an expert on the Public Records Act to ensure compliance.”
The Democrat continues, “David Greenwald, editor of the People’s Vanguard of Davis, said because the average person is not an expert on the law and will not seek legal action, “it almost invites a government agency to withhold documents.””
Mr. Cederborg conceded that the request took too long. “That request shouldn’t have taken as long as it did,” Cederborg conceded, adding that the request came at the same time many others were requesting information about the budget. “We consider records requests part of the business of the county but sometimes you have to prioritize. He got the response but did not get it as soon as he would have liked.”
No Mr. Cederborg has it wrong here, it is not a matter that I did not get the response as soon as I would have liked. It is a matter that I did not get the response as soon as the law requires.
The Daily Democrat also talks to Jim Ewert, counsel for the California Newspaper Publishers Association. The media are always attempting to get these kinds of public records and most of the major cases involve the California NPA. He told the Democrat, agencies don’t want to give out more information than necessary and will often defer to their lawyers. He said they are testing the waters to determine the probability of getting sued for withholding information.”
“That is unfortunately what happens nine times out of 10 — the agency will make that risk calculation of whether they are going to get sued and usually the person walks away with their tail between their legs,” Mr. Ewert said.
“Even if an agency uses legal counsel, that is in no way an excuse for a delayed response time. Not everything is instantly available in document form, but might require discovery that an agency might say is “unduly burdensome,” Ewert said.”
Mr. Ewert encouraged people seeking information to utilize the Public Records Act. “It may be a long process and to that end, be persistent,” he said. “Don’t take no for an answer and if you’re denied, ask why.”
City of Davis Ranks High in Responsiveness
For us, the key is to find the one access point that can get records in a quick and responsive manner. The biggest advice I would give both public agencies and requesters is to communicate. Often the records requester has no idea if the request is burdensome. They may have some specific in mind, but may be willing to work with the agency, if the agency communicates to find out what they need. That expedites the process and reduces the amount of work.
As critical as I have been about aspects of Davis City Government, the city clerk’s office has been the most accessible and responsive agency I have had to work with to get public records. They are prompt, if they need an extension they submit it in writing and always fill within the specified time, they will communicate if the request is vague or burdensome. The only times I have been denied information is when I have requested documents that are either exempt or questionable. The one time I litigated, it was not the city’ s choice.
Moreover, on an everyday basis, city staff is extremely helpful about getting reports and information back in a timely manner even when the request is not a formal public records act request.
I have not made as many requests of the school district, but have never had a problem getting information from them. They seem quick, professional and reliable.
The university is a mixed bag. Generally I have gotten responses in a time fashion from them. Sometimes I have had to prod them for information. Often they withhold information that they do not need to do. If it has to be vetted by their counsel, it delays the request by a large margin. One time, it took them a year to fill a request and I had to utilize counsel to write a letter to get them to release the information.
But the county has been by far the most difficult to deal with. It has gotten to the point where if I need information from the county, I usually try to get it directly from a department. The Sheriff’s Department and Captain Rich Williams is accessible and punctual, even though he vets through the County Counsel’s Office. The DA’s office on the other hand, simply forwards the request to the County Counsel and I get stuck in the feedback loop so to speak.
As someone attempting to get information in a timely matter, it is a huge problem and I do not know how to address it. Hopefully my complaint to the Board of Supervisors and the article will clean things up.
—David M. Greenwald reporting