By Albert Ibrahim, Partner at Case, Ibrahim & Clauss, LLP
The California Legislature enacted the Public Records Act (PRA), Government Code § 6250, declaring that “the Legislature, mindful of the right of individuals to privacy, finds and declares that access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.” The PRA is the California version of the Federal law known as the Freedom of Information Act.
A PRA request can be used by contractors or subcontractors to obtain documents without having to file suit or issue a subpoena for production of records. This allows for the discovery of communications between the players (e.g., Owner and GC, Owner and Design Team) that would not normally be shared with contractors or subcontractors. As an example, this process has been used successfully to discover the timing of payments made by public agencies to their prime contractors as a means to determine whether the prime contractor has failed to comply with “prompt payment” statutes in California. Many other examples can be cited for a successful PRA re- quest that helped resolve a dispute before litigation, since the documents that were thought to be unavailable were in fact public records subject to discovery under the PRA.
Under the PRA, public records are open to inspection during the office hours of the state or local agency and every person has a right to inspect any public record with some exceptions generally not applicable to construction disputes.
Upon written request, each state or local agency, must make the records promptly available to any person upon payment of fees covering direct costs of duplication, or a statutory fee if applicable. Upon request, an exact copy must be provided unless impracticable to do so.
The PRA does not allow an agency to delay or obstruct the inspection or copying of public records but can request a time extension to provide the records of up to 14 days.
As to electronically stored information, any agency that has information that constitutes an identifiable public record not exempt from disclosure pursuant to this chapter that is in an electronic format has to make that information available in an electronic format when requested by any person.
If the public entity refuses to produce its records or unnecessarily delays their production, court proceedings for injunctive or declarative relief or writ of mandate can be instituted in any court to enforce the right to inspect or to receive a copy of any public records. These proceedings are expedited to ensure the process occurs quickly and that the records are produced promptly. What’s more, since the public entity must produce all records in response to a PRA request, failure to do so is a breach of their duty under the PRA. This then requires the court to award court costs and reasonable attorneys’ fees to the PRA plaintiff should the plaintiff prevail in litigation which must be paid by the public agency. In these cases, discovery has also been permitted to test whether the public entity has in fact has produced all responsive documents.