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HomeMy WebLinkAboutMINUTES - 09142004 - C127 ..._... _........ ......... ......... ......... ......... .... ..............__._...... ......... ......... ......... ......... ......... ......... ..........._... _. . _....... ......... ......... ......... ......... ............................... TO: BOARD OF SUPERVISORS „> <. Contrd •f• � f FROM: JOHN SWEETEN, County'Administrator Costa DATE: SEPTEMBER 9, 2004 County 14 SUBJECT: PROCESSING OF PU13LlC RECORDS REQUESTS E 1, SPECIFIC REQUEST(S)OR RECOMMENDATtON(S)&BACKGROUND AND JUSTIFICATION RECOMMENDED ACTIONS: 1. ACCEPT report from the County Administrator on strategies to improve the timeliness of the County's responses to requests for public records. 2. RECEIVE copy of memorandum to all County departments regarding the processing of public records,prepared by the County Counsel. BACKGROUND: On Sunday, July 25, 2004, the Contra Costa Times ran a story on the experiences of their staffs attempts to receive copies of public records from various public agencies. The records they sought are required by state law to be available to the public for review during normal business hours. The Contra Costa Times article reported that Contra Costa County took 19 days to respond to the request for a copy of a Form 700 and the County Administrator's contract. On August 10, 2004,the Board of Supervisors directed the County Administrator to assess the length of time it takes the county to respond to a request for public records by a member of the public and to report back to the Board its findings as well as any recommendations on how the process can be CONTINUED ON ATTACHMENT: [] YES SIGNATURE: r 94 [ ECOMMENDATION OF COUNTY ADMINISTRATOR []RECOMM N ATION OF BOARD COMMITTEE -APPROVE OTHER SIGNATURE(S): ACTION OF ?4�ON ,, APPROVED AS RECOMMENDED OTHER 0 VOTE OF SUPERVISORS: I HEREBY CERTIFY THAT THIS IS A TRUE AND / CORRECT COPY OF AN ACTION TAKEN AND V UNANIMOUS(ABSENT 12y ENTERED ON THE MINUTES OF THE BOARD OF AYES: NOES: SUPERVISORS ON THE DATE SHOWN. ABSENT: ABSTAIN: ATTESTED: SEPTEMBER 14,2004 Contact: JUNE ENEA(925)3354077 JOHN SWEETEN,CLERK OF THE BOARD OF SUPERVISORS AND COUNTY ADMINISTRATOR cc: CHIEF CLERK OF THE BOARD COUNTY COUNSEL 14 r By: '- ��_ amity Processing of Public Records Requests Page 2 September 9, 2004 expedited. The Board also directed the County Counsel to prepare a summary of an individual's rights to public records with regards to the Fair Political Practice and Public Records acts for distribution to all county employees who handle requests for public records from the public. This report is responsive to those directives. County Administrator's Findings and Recommendations. The report by the Contra Costa Times highlighted one of the challenges faced daily by the Clerk of the Board of Supervisors, which is the custodian of the official records of the Board of Supervisors. Each day,the seven-member office processes hundreds of new documents, maintains and researches scores of historical documents, and provides myriad other services on behalf of the Board of Supervisors. The Clerk's Office is a research center for both County staff and the general public for documents dating back one hundred years or more. We estimate that the Clerk's Office responds to an average of 65 requests for public records each month, many of which require extensive research. In studying the County's policies and procedures for responding to requests for public records,the County Administrator reviewed the Clerk of the Board's response to the request for Form 700s and contracts of certain County officials that were the subject of the July 25 Contra Costa Times article. The Contra Costa Times article stated that the County took 99 days to respond to its request for copies of Farm 700s and the County Administrator's contract. Upon review(copy attached), we found that the County's actual response time was faster than reported by the Contra Costa Times. Nevertheless,we think we can improve our response time by implementing the following strategies: • Staff will strive to fill requests made in person while the person waits. • If a request cannot be filled while a person waits in the office or within 24 hours, staff will provide a time and/or cost estimate within 24 hours. • When possible, requests for public documents will be filled via electronic mail. The Clerk's Office can scan documents, when practical, and send them out electronically to respond faster. • Voluminous requests will be overseen and monitored by the Chief Clerk. If a voluminous request can be filled in parts, staff will attempt to fill the request in segments and maintain frequent contact with the requester on the progress of filling the request. • Share copies of frequently requested documents such as the Form 700s for the Board of Supervisors members will be maintained for provision on demand. • Searchable databases have been developed to help staff more quickly identify and retrieve documents related to claims, legal documents, and Form 700s. ■ The Clerk's Office will maintain a chronological file on public records requests and responses for ongoing evaluation. • The Clerk's Office will continue to adhere to County policies and procedures with respect to processing requests for public records. Guidance from the County Counsel. In response to the Board's second directive, the County Counsel prepared the attached internal memorandum to guide department heads and their staff regarding access to public records and the processing of public records requests. Processing of Public Records Requests Page 3 September 9, 2004 Findings on the Requests for Public Records that Were the Subject of the Contra Costa Times July 25, 2004 Article The requester from the Times made three separate requests to three different staff members for public records, not one. The first request was deferred by the requester until a later date. The second and third requests were ultimately satisfied in 15 and 12 calendar days, respectively, including several days during which staff was awaiting instructions from the requester. Although the actual response time was shorter than reported by the Times, we think we can improve our response time to such requests. In our review, we found that staff was very conscientious about responding to the requests, frequently checking back and following up with the requester to report progress or clarify the requests. First Request. The first request was received between April 5 and 8 via telephone for copies of all Form 700s filed for 2003. The law requires public agencies to provide assistance by helping the requester to identify records and information relevant to the request suggesting ways to overcome any practical basis for denying access to the request. In this case, most of the requested documents were not in the County's possession as the filing date for 2003 Form 700s was April 30. It was to assist the requester that staff asked the purpose of the request, to help determine if the documents currently in the County's possession would satisfy what the requester wanted. After learning that the most of the Form 700s were not yet in the County's possession, the requester agreed to call back in a couple of weeks. Second Rectuest. The second request was received in person on April 14 for copies of all Form 700s filed for 2003 and the contract for County Administrator John Sweeten. As of that date,this request comprised approximately 1100 distinct documents, separately filed. The Better Government Ordinance requires that a request must be satisfied by the close of the next business day after the request is made, unless the County advises the requester in writing that the request will be answered by a specific future date, which can be up to 24 days under extenuating circumstances. In this case, within 24 hours(on April 1'5) a time and cost estimate was made available to the requester for pickup (only a phone number was provided to staff). The requester did not pick up the estimate until April 21, even though staff followed up with a phone call to her on April 19. In a second follow-up phone call to the requester on or about April 21,the requester narrowed her request to the contracts for County Administrator John Sweeten, Health Services Director William Walker, and Sheriff Warren Rupf, and the 2003 Form 700s only for the Board of Supervisors. On April 26, staff notified the requester that the revised request was ready for pickup or mailing. These documents were picked up by the requester on April 29— 15 calendar days or 11 workdays from the original request, including 1 workday for the estimate and 4 workdays during which staff was awaiting instructions from the requester on whether to proceed with the request. Third Request. The third request was received in person on April 16 for the contracts of County Administrator John Sweeten, Health Services Director William Walker, the five members of the Board of Supervisors, and the 2003 Form 700s for the Martinez Unified School District. On April 26, staff notified the requester that the requested documents were ready for pickup or mailing except the Form 700s which were not yet in the possession of the County and were not due until April 30. The requester requested to be notified when all of the documents were ready for pickup. On April 28, staff notified the requester that all of the documents were ready for pickup or mailing— 12 calendar days or 8 workdays from the original request, including 2 days delay at the instruction of the requester. It should also be noted that most of the requested documents were not in the possession of the County until April 28, 12 days from the request date. ......... ......... ......... ......... ......... 1.111 _ .. ...... .... .. ......... ......... ......... ......... ......... ......... ......... _... _.. 1111.. ._. ......... ......... ......... ......... . ...................................................... Office of the County Counsel Contra Costa County 651 Pile Street, 9th Floor Phone: (925)335-1800 Martinez, CA 94553 Fax: (925)646-1078 { Date: August 31, 2004 } T©: All County Department Heads ,c _. 1 From: Silvano B. Marchesi, County Counsel �. ._ By: Esther Milbury, Deputy County Counsel Re: PROCESSING OF PUBLIC RECORDS REQUESTS The purpose of this memorandum is to provide guidance to County Departments regarding access to public records and the processing of public records requests. In general, the inspection and copying of County documents is governed by the California Public Records Act(Gov. Code, § 6250 et seq.) and the Better Government Ordinance(Ord. Code § 25-4 et sett.).' Government Code section 6252, subdivision(e)defines a public record as: Any writing containing information relating to the conduct of the public's business,prepared,owned, used, or retained by any state or local agency regardless of physical form or characteristics. PROCESSING A REQUEST The following are guidelines for processing a public records request. WHO may make a request? est? Any INDIVIDUAL person or BUSINESS ENTITY may matte a request to inspect or obtain a copy of a public record. (Gov. Code, §§ 6252, subd. (c), 6253) Journalists or members of the news media do not have any greater or lesser rights than members of the public. (San Gabriel Tribune v. Superior Court(1983) 143 Cal.App.3d 762, 744.) The agency processing the request MAY NOT REQUIRE the individual making the request to produce IDENTIFICATION. Nothing in the California Public Records Act(CPRA) or . Better Government Ordinance precludes an anonymous request. The only time the CPRA requires identification is when a requester is seeking information about pesticides or seeking the address(es)of 1District Attorney and Sheriff Records are exempt from Better Government Ordinance Public Record requirements. (Ord.Code§25-4.404(4)(1).) t All County Department Heads August 31,2004 Pae 2 persons arrested or crime victims. (Gov. Code, §§ 6254.2, 6254, subd.(f).) WHAT mgy be Muested? Generally ALL RECORDS are subject to disclosure unless a specific statutory EXEMPTION applies. (See below for a discussion of the different types of public records that are exempt from disclosure.) Persons requesting public records do not need to state a reason to justify access to public records. Further, CPRA does not require that the requester submit a written request. (Las Angeles Times v. Alameda Corridor Transportation Authority(2001) 88 Cal.App.4th 1381.) However, if the requestor is willing, a written request can assist County staff by clearly specifying the documents requested. Public records that are Dept in electronic format are to be made available in electronic format when requested and must be made available in any electronic format in which the agency holds the information. (Gov. Code, § 62:53.9, subd. (a).) Records may not be provided only in electronic form. (Gov. Code, § 6253.9, subd. (e).) WHEN and WHERE mgy public records be INSPECTED? Records may be inspected at an agency during its REGULAR OFFICE HOURS. (Gov. Code § 6253, subd. (a).) A person need not give notice in order to inspect public records at an agency's office during normal working hours. The TIME in which an ggency agencymust res and to-a re west for a COPY of a public record. Generally, an agency must make the record available PROMPTLY when the request for a copy of a public record reasonably describes an identifiable record(s),the agency is able to easily determine that the record is not exempt from disclosure and the requestor has paid the fees covering the direct casts of duplication. (Gov. Code, § 6253, subd. (b).) Linder the Better Government Ordinance, a request must be satisfied by the close of the next business day after the request is made, unless a department head or his/her designee advises the requester in writing that the request will be answered by a specific future date. (Ord. Code § 26- 4.604.) The agency may obtain a ten day extension to respond to the request due to the voluminous nature of the information requested,or if the documents are located in a remote storage facility, or if there is a need to consult with legal counsel regarding the nature of the documents requested. (Gov. Code, § 6253, subd. (c).) Linder the Better Government Ordinance the requestor should be notified in writing of the ten day extension within three business days of the request. (Ord. All County Department Heads August 31, 2004 P2Le 3 Code § 26-4.604.) Further,in unusual circumstances the time to respond to a records request may be extended by the department head or his/her designee up to an additional FOURTEEN(14)DAYS. (Gov. Code, § 6253, subd. (c).) Notice by the department head or his/her designee shall be given in writing to the requestor and shall set forth the reasons for the extension and the date upon which a determination is expected to dispatch. (Ibid.) "Unusual circumstances"means the following: (1) The need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request. (2)The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records that are demanded in a single request. (3)The need for consultation, which shall be conducted with all practicable speed,with another agency having substantial interest in the determination of the request or among two or more.components of the agency having substantial subject matter interest therein. (4) The need to compile date, to write programming language or a computer program, or to construct a computer report to extract data. (Ibid.) What FEES (if anycan be charged toracess the request? A FEE OF TEN(10)CENTS PER PAGE may be charged for documents assembled and copied pursuant to the request of the requester,plus any postage costs. (Ord. Code § 25-4.610(d).) INS'PECTIO'N of public record is FREE. (Ord. Code §25-4.610(a).) NO FEE shall be charged for a copy of a document that is routinely produced in multiple copies for distribution,such as meeting agendas and related materials, that are twenty(20)or fewer pages in length per document. (Ord'. Code § 25-4.610(b).) However, a FEE OF ONE (1) CENT PER PACE may be charged when the document exceeds twenty(20)pages. (Ord. Code § 25- 4.610(c).) AGENCY'S (JB QATM TO ASSIST`RE�LTESTOR. Pursuant to Government Code section 6253.1, subdivision(a), the agency must provide assistance by helping the requestor to identify records and information relevant to the request and by ......... ......... ......... ......... ......... ......... ......... ......... ......... ...--_._. ..... ....... ..........__._....... ......... ......... ......... ......... ......... ......... ........ ......... ..._.... ......... ......... All County Department Heads August 31, 2004 Pa e 4 suggesting ways to overcome any practical basis for denying access by doing all of the following, to the extent reasonable under the circumstances: (1)Assist the member of the public to identify records and information that are responsive to the request or to the purpose of the request, if stated. (2).Describe the information technology and physical location in which the records exist. (3)Provide suggestions for overcoming any practical basis for denying access to the records or information sought. However,the agency is not be required to do the above, if the agency is unable to identify the requested information after making a reasonable effort to elicit additional clarifying information from the requester OR the agency makes the records available OR the agency determines that the request should be denied and bases that determination solely on an exemption listed in Section 6254. (Gov. Code, § 6253.1, subds. (b), (c)& (d).) RECORD'S THAT ARE EXEMPT FROM DISCLOSURE Generally,the CPRA and other laws and statutes give government agencies a variety of exemptions which they may utilize as a basis for withholding records from disclosure. An agency may withhold the records,but can allow greater access if it wishes. (Gov. Code, §6253, subd. (e).) Under CPRA a record may be withheld whenever the public interest in non-disclosure clearly outweighs the public interest in disclosure. (Gov. Code, § 6255, subd. (a).) ,NOTE: The Better Government Ordinance has waived this provision regarding non-disclosure of records. (Ord. Code 25- 4.608(b).) PLEASE NOTE: Departments are not required to provide a list of each record withheld, but must cite the particular statute that allows the exemption. (Haynie v. Superior Court of Los Angeles (2001)26 Cal.4th 1061.) Following is a PARTIAL listing of records that are EXEMPT from public disclosure. Government Code section 6254 and other statutes and laws provide for additional documents that are exempt from public disclosure. If there is a question about whether a document is exempt from disclosure, the department should contact County Counsel. 1. PRELIMINARY DRAFTS, NOTES, OR INTERAGENCY OR.INTRA-AGENCY MEMORANDA that are not retained by the agency in the ordinary course of business or not normally kept on file. (Gov. Code, § 6254, subd. (a), Ord. Code § 25.404(a).) All County Department Heads August 31, 2004 Pae 5 2. Records pertaining to PENDING AND PROPOSED LITIGATION, except claims against public entities and public employers, until the pending litigation or claim has been finally adjudicated or otherwise settled. (Gov. Code, § 6254, subd. (b).) 3. PERSONNEL, MEDICAL, or similar files,the disclosure of which would constitute an unwarranted invasion of personal privacy. (Gov. Code, § 5254, subd. (c).) However, statistical non- identifying employee data,professional biographies,job descriptions, salary and benefit amounts, memoranda of understanding,records of certain confirmed misconduct and records of disciplinary appeals are NOT EXEMPT from disclosure..(Ord. Code 25-4.402(c).) 4. INVESTIGATORY or security files compiled for correctional or LAW ENFORCEMENT, with some exceptions. (Gov. Code, § 6254, subd. (f); Ord. Code 25-4.402(d).) 5. TEST QUESTIONS, SCORING KEYS, or other EXAMINATION DATA used to administer an employment or academic examination. (Gov. Code, § 5254, subd. (g).) 6. CONFIDENTIAL LEGAL ADVICE and LEGAL RECORDS(Gov. Code, § 5254, subd. (b); Evid. Code, § 950 et seq.) 7. Records the disclosure of which is exempted or PROHIBITED BY STATE OR FEDERAL LAW. (Gov. Code, § 6254, subd. (k)) Agency's REFUSAL TO DISCLOSE a record because it is exempt. Any refusal to disclose a public record must be justified IN WRITING and must cite the CPRA section or other statutory authority that allows the exemption. (Gov. Code, §5255, subd. (b); Ord. Code § 25-4.508.) Exempt information shall be REDACTED or deleted so that the non-exempt portion of the requested record may be released. (Gov. Code, § 6253, subd. (a); Ord. Code § 25- 4.506.) WAIVER of Exemption. "Selective" or"favored" access is prohibited; once a record is disclosed to one requester, the record is public for all. (Gov. Code, § 6254.5.) However, this waiver of exemption does not occur when an otherwise exempt record is disclosed pursuant to other'legal proceedings or as otherwise required by law. (Gov. Code, § 5254.5, subd. (b).) PLEASE NOTE: Departments should request advice from County Counsel if there is an uncertainty as to whether a document may be withheld from public disclosure or some other question about responding to a request for public records. This can be done by calling (925)335-1800 and ...................................................................................................................................1.1111.1.1111, . .......................................................................................... All County Department Heads August 31, 2004 P! e 6, asking to speak to the attorney who handles Public Record Act requests. Pending a response from County Counsel, the Department must provide a status letter to the requester in a timely manner as required by the Better Government Ordinance. (Ord. Code § 25-4.604.) If a person is denied access to a public record and prevails in a lawsuit to obtain access to the record(s), the County could be held liable for court costs and attorneys fees. (Gov. Code, § 6259, subd. (d).) EMM: mm cc: Federal Glover, Chair, District V, Board of Supervisors John M. Gioia, District 1,Board of Supervisors Gayle B.Uilkema, District 11,Board of Supervisors Millie Greenberg, District III, Board of Supervisors Mark DeSaulnier, District IV,Board of Supervisors John Sweeten, Clerk of the Board of Supervisors Julie Enea, Senior Deputy County Administrator Jane Pennington, Chief Deputy Clerk, Board of Supervisors HAMemosTublic Records Act.wpd