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HomeMy WebLinkAbout2024 Clerk PRA PaP Policy and Procedure Subject: Responding to Requests for Public Records (All Departments excepting Police) Contents Public Record – Definition ................................................................................................................................ 2 Handling Requests (input) ................................................................................................................................ 2 Who’s Responsible for What? ...................................................................................................................... 3 Attorney’s Office ...................................................................................................................................... 3 Police Department ................................................................................................................................... 3 Clerk’s Office ............................................................................................................................................ 3 Department - General .............................................................................................................................. 4 Identifying Records ...................................................................................................................................... 4 Any and All… ................................................................................................................................................. 4 Record Request Response ................................................................................................................................ 5 Response Timing .......................................................................................................................................... 5 Determination (10-days): ......................................................................................................................... 5 Extension (14 days): ................................................................................................................................. 5 Estimated Response Timing: .................................................................................................................... 5 Touch it Once Principle: ........................................................................................................................... 5 Exemptions, Exceptions, Redactions and Withholding ................................................................................ 6 Copying Records/Costs ................................................................................................................................. 9 Destruction of Records ..................................................................................................................................... 9 Additional Resources:..................................................................................................................................... 10 CHECKLIST for Clerk’s Office ........................................................................................................................... 11 PRR Input: ................................................................................................................................................... 11 PRR Determination & Updates ................................................................................................................... 11 PRR Final Response .................................................................................................................................... 11 Public Records Requests Procedures – updated August 2024 Page | 2 Public Record – Definition The California Public Records Act (the “Act”), Government Code, section 7920.530 (a), defines “public records” 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.” 7920.545 – “As used in this division, ‘writing’ means 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.” Therefore, emails, Social Media posts, text messages, etc., all apply. However, the Act does not require us to create a new record that does not already exist. Handling Requests (input) Public records in the custody of the City of San Luis Obispo must be made available for inspection during normal business hours. Whenever possible, records that are immediately available to staff should be supplied to the requestor unless they, whole or in-part, are subject to withholding under the Act. (Staff that interact with the public should be trained on what records their department handles that are typically available/not available to the public). Every record that is requested doesn’t necessarily need to be recorded under the formal process detailed in this document. Handling a basic request in a timely manner will help minimize the need for utilizing this formal process and save time for all involved. Another great tool is to determine what documents are frequently requested and make them routinely available via the internet. The process in this document should be followed when:  Staff are unsure IF the requested document is subject to withholding under the Act or if portions of the record should be redacted for reasons allowed under the Act.  The requestor specifically states, verbally or in writing, that they are requesting the record as a Public Records (Act) request or a “FOIA” (Freedom of Information Act) request. (Note that FOIA is the Federal Act and that the California Act is more stringent. We are required to follow California law.)  The request is for a large volume or broad array of documents possibly involving multiple departments.  The requestor specifically states or implicitly implies that it is for legal reasons, or staff otherwise feel that we should have a record of our action in fulfilling the request. Written requests are strongly encouraged. We have a form for making a public records request to facilitate the process by helping to correctly identify the specific records needed. But requests may be made by any method of communication, including via voice over the phone. Additionally, anyone can make a request (§ 7922.525) and they don’t have to identify themselves, nor do they have to identify why they are seeking the record(s). When requests are made orally, best practices are to confirm the request in writing to ensure it has been correctly understood. If not possible because of circumstances or refusal by the requester, notes describing the interaction should be kept for the record of the request. Public Records Requests Procedures – updated August 2024 Page | 3 Who’s Responsible for What? Attorney’s Office  Requests that are initiated in the Attorney’s Office may reside entirely within their domain at their discretion. However, a communication to the City Clerk’s office to add the item to the log should be provided. Otherwise, general requests may be forwarded to the Clerk’s office for handling.  Email Records: When a request requires email communication records, the Attorney’s Office handles the search and provides responsive records, regardless of the department otherwise responsible for records within the request.  Exemptions, Exceptions, Redactions and Withholding: The Attorney’s Office is the definitive source for if/when a record may not be produced in part or wholly (see the “Exemptions, Exceptions, Redactions, Withholding” section for some common examples.)  Subpoena for Records: While similar to a PRA in resulting documents, these are handled entirely by the Attorney’s Office. Departments providing documents for a Subpoena for Records should only provide them to the Attorney’s Office, not the City Clerk’s Office. Should a department office other than the Attorney receive a Subpoena for Records, it should immediately be provided to the Attorney’s Office. Note that response times are dictated by the Court, not the Public Records Act. Police Department  Requests that are initiated at the Police Department may reside entirely within their domain at their discretion. However, a communication to the City Clerk’s office to add the item to the log should be provided. Otherwise, general requests or requests involving non-PD records, should be forwarded to the Clerk’s office for handling at least in-part. Clerk’s Office  The City Clerk’s office maintains a centralized Records Request Tracking log and corresponding public archive for the fulfilled requests. Typically, requests come directly to the Clerk’s office but at times they may be made to any Department. Except for Attorney’s Office and the Police Department, all requests received by any City department should be routed to the Clerk’s office. The Clerk’s office will then manage the retrieval of records, any necessary review by the Attorney’s office, and communication with the requester.  The Clerk’s office also maintains a list of each department’s identified records custodian and staff backup. Requests from the Clerk’s office will be sent to the records custodian, with a copy to the back- up and the Department Director (unless otherwise requested by the Director). This is to ensure that the request is handled in a timely manner as well as alerting management as the task adds to staff workload.  Upon receipt of a request, the Clerk’s office logs the request, sets up the request archive, and promptly forwards the request to the appropriate department records custodians. (Final requested records are kept in a Laserfiche archive and are generally emailed to the Clerk from the department. However, for ease of gathering documents when there are large file sizes or a large volume of responsive records, the Clerk’s office may set up a transfer location in SharePoint. These should be deleted once the files are transferred to the LF archive.  Subpoena for Records are forwarded to the Attorney’s Office and logged as a Legal Document Served, rather than a Public Records Request. Public Records Requests Procedures – updated August 2024 Page | 4 Department - General  Receipt of Request from Citizen: Department Staff who have identified a citizen request as being more than a simple ask for a routine record (see “Handling Requests” above) should either: o Preferred Option: Gather the needed information: Name or description of records desired, Contact Name (if) requester is willing to provide, contact info (email preferred, phone), and send this to the City Clerk’s office using the team email address: cityclerk@slocity.org o Direct the requester to the City Clerk and/or the PRR form on the website. Prior to directing the requester to the City Clerk it is important to ascertain if they need assistance in identifying records (name/type). This is assuming that they have come to your department for records that you are responsible for and are therefore best able to assist in identifying responsive record types that the city may possess. (See Identifying Records)  Receipt of Request from the City Clerk’s Office: Upon receipt of a Public Records Request from the City Clerk’s office, the Department Records Custodian should determine which department staff are responsible for gathering the responsive records, forwarding the request to them immediately, and serve as the information conduit between the Department and the Clerk’s Office: o Manage the “determination” response (see response timing). o Coordinate with the Clerk’s office if a temporary location is needed to place responsive records. o Provide final communications to the Clerk’s office when the Department’s search is completed (all functional divisions of the department have responded with records or have noted that they don’t have responsive records). Identifying Records Requests should provide specific information about the records being sought. When a record cannot be identified by name, staff should assist the requester to be as specific as possible in describing the record based on the desired content. If known, requesters should indicate the office/Department that created and maintains the records. The public doesn’t necessarily know what records we maintain, how they are kept, or what terms are used to refer to them. GC § 7922.600 requires that when a request is not sufficiently specific, staff is required by the Act to assist the requester in identifying what records the City holds that are responsive to their needs. Any and All… Whenever a request requires “any and all” files the Clerk’s office should attempt to assist the requester in narrowing their request (help to identify what files we have that may be responsive to their needs). While potentially quite time consuming, these requests are allowed. Staff researching responsive files will need to look beyond just where they believe the files should be as “any and all” implies the records desired may not just be well defined responsive records. Staff responsible for searching these requests should include: Network Drives, “C” Drives of staff computers that may have worked on the files, SharePoint Libraries, including Teams chats and “One Drive” locations, Energov, Oracle, GIS, any non-listed software and database files, as well as any unique physical files. This type of search may reveal multiple copies of what seem to be the same record. But these copies may have been modified slightly and most likely will have differing metadata associated with the record. The metadata is also disclosable under the Act and therefore these “copies” are considered separate responsive documents to the request for “any and all” requests. Public Records Requests Procedures – updated August 2024 Page | 5 Record Request Response Response Timing As stated in the PRA, § 7922.500 - Nothing in this division shall be construed to permit an agency to delay or obstruct the inspection or copying of public records. Determination (10-days): § 7922.535: Despite day-to-day workload, we are required to respond within 10-calendar days, letting the requester know if we have or don’t have the records. Ideally, if we do have the records, we produce the records in the 10-day determination time window (see Touch-it- Once Principle). If a complete retrieval/review of the records is not possible within this time constraint, we must provide an estimate on when we expect the records will be made available. Extension (14 days): The PRA allows for an extension of the Determination only. This is commonly misunderstood to allow putting off the Determination for any reason (such as – staff time/work-load issues) which is not correct. The Act (§ 7922.535 (c)) only allows this extension for “unusual circumstances” (detailed below). If an extension is to be granted, staff needs to identify which of the reasons apply and that reason must be conveyed to the requester within the 10-day Determination timeframe. (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 data, to write programming language or a computer program, or to construct a computer report to extract data. Estimated Response Timing: If the request seeks disclosable records that are voluminous or not readily available for production, the Act requires that the City provide a written response that “shall state the estimated date and time when the records will be made available.” Further, it requires that the records are made “promptly” available within a reasonably defined time frame. The Act does not require a department to suspend normal operations to comply with the request, does not require that the documents actually be produced within 10 days, and does not give a specific or definitive time frame for producing the requested records. An acceptable strategy to employ when a large volume of responsive records have been identified as possibly responsive and need to be reviewed prior to release, is to supply a starting date estimate, stating that rolling responses will be supplied. When each “batch” of records are supplied on the given date, an estimate for the next “batch” production is required. Repeat as necessary until complete. Touch it Once Principle: The core concept of this principle is to take immediate action upon encountering a task, aiming to complete it (if possible) in that instance. This principle promotes a more streamlined approach to handling tasks, potentially saving time and energy in the long run. Applying this concept to relatively simple records requests by supplying the requested documents withing the 10-day Public Records Requests Procedures – updated August 2024 Page | 6 period not only may save time for department staff who are keepers of the particular requested records but will save time for the Clerk’s office as there will be less management needed for the request. Exemptions, Exceptions, Redactions and Withholding Below are listed some of the most requested SLO City records which are in part or whole, not releasable. This does not constitute all the exemptions specified by law and staff should consult with the City Attorney’s office prior to withholding/redacting documents based on an asserted exemption or when there is any question whether a document should be disclosed. City Clerk staff may want to review the Municipal Clerk’s Handbook (2023 edition) beginning pg. 167. Note that any reasonably segregable portion of a record shall be provided to any requesting party after the removal of the information in the record that is exempt from disclosure by law. In other words, just because a record has sections that are being redacted doesn’t justify withholding the record outright. Architect and Engineer Plans:  Departments likely to have record type: CDD (and Fire sometimes)  Statutes: Civil Code Section 980 covers the copyright protection of these plans and; Health & Safety. Code, § 19851 allows for on-site inspection of the record only. o There is an exception to this exemption which applies to reduced plans that have been previously released for use by local agency decision-making bodies as part of the agenda materials for a public meeting (ex; Architectural Review Committee, Planning Commission, City Council).  Process: Plans submitted to the City by a third party and stamped by an Architect or Engineer are copyright protected and therefore not releasable under the Act. However, they may be reviewed in- person. Additionally, a request may be made by the City for written permission from the professional who holds the copyright, to provide a copy to the requester. Generally, this is coordinated by CDD staff who have the proper release forms. Restrictions to further copying of the supplied plans apply. Arrest and Criminal Investigation Records:  Departments likely to have record type: Police, (Note that this is being placed in this document as an fyi to non-PD staff who may occasionally field questions or receive requests for this type of information. There are numerous considerations which PD are trained to handle.)  Statutes: § GC 7923.600-.625 – With exceptions, this division does not require the disclosure of records of complaint records, investigations conducted by, or records of intelligence information or security procedures of… any … local agency for … law enforcement… purposes.  Process: Submit requests of this nature to the Police Records Department. In most cases they will supply the requester with their complete response and provide a copy of the response to the City Clerk’s office rather than the Clerk’s office submitting the response. Attorney-Client correspondence and Pending Litigation:  Departments likely to have record type: All  Statute: § 7927.500 The Act exempts from disclosure “preliminary drafts, notes, or interagency or intra-agency memoranda that are not retained by the public agency in the ordinary course of business, if the public interest in withholding those records clearly outweighs the public interest in disclosure.”  Process: A determination will have to be made by staff, likely with assistance from the City Attorney. Public Records Requests Procedures – updated August 2024 Page | 7 o Confidential attorney-client correspondence; notes and other work product prepared by legal counsel; materials constituting trade secrets of licentiates or applicants or contained in contract proposals; personal information, such as date of birth, social security number, and criminal history; and records that may be subject to other legal privilege (e.g., medical records prepared by a physician) [Government code Section 6254(k)].  Emails are the most likely record type that a department might have related to a given request. The Attorney’s office is responsible for searching our email database so in most cases department staff won’t have to worry about this. But if the department has saved emails outside of the email client, be sure to verify that they are not subject to this exemption.  Records pertaining to pending litigation to which the City is a party or claims made pursuant to Division 3.6 of the Government Code (commencing with Section 810) until the pending litigation or claim has been finally adjudicated or otherwise settled [Government Code Section 6254(b)]. Contracts & RFP (Requests for Proposals):  Departments likely to have record type: Finance  Statutes: § GC 7930.250 – Trade secrets are governed by a wide array of codes. Certain contracts that the City has entered in to, or documents submitted in response to an RFP may contain information noted as “proprietary” or “confidential.”  Process: Any potentially responsive records for this should be reviewed by the City Attorney. Our common practice for RFP documents is to contact the submitter and allow them to provide a redacted copy with an explanation on what and why redactions were made. This is handled by the Attorney’s office. Preliminary Drafts and Similar Materials:  Departments likely to have record type: All  Statute: § 7927.500 The Act exempts from disclosure “preliminary drafts, notes, or interagency or intra-agency memoranda that are not retained by the public agency in the ordinary course of business, if the public interest in withholding those records clearly outweighs the public interest in disclosure.”  Process: A determination will have to be made by staff, or perhaps with assistance from the Attorney’s Office, if the record can be withheld or should be released. The key phrase is, “not retained… in the ordinary course of business…” (See examples below which assume no other exemptions or exceptions apply). o Okay to Withold example: A City Council Agenda Report is in the process of being created but has not been fully vetted or presented to City Council. This is a true draft. The final version will be released when it is published in the agenda packet. o Can’t Withold example: A preliminary version (or multiple versions) of a document, perhaps a City Council Agenda Report, were saved during the creation process and may contain comments or track/changes that were not included in the final version. Staff held these either to refer to later in the project, as examples for other similar projects, or simply left them in the project folder as they moved on to other tasks following finalizing the agenda report. As this is the “ordinary course of business” they must be released. This sort of file hoarding is discouraged in the City’s Records Policy. Public Records Requests Procedures – updated August 2024 Page | 8 Medical Records:  Departments likely to have record type: Fire, Police  Statute: HIPAA (The Health Insurance Portability and Accountability Act of 1996) generally prohibits health care providers and businesses, called “covered entities,” from disclosing protected information to anyone other than a patient and the patient’s authorized representatives without their consent.  Process: These records are not releasable under the PRA. However, they may be released as Medical Records with the proper identification and proper HIPAA release forms. If we receive a PRA request for this information and subsequently identify responsive records, the requester must provide the required HIPAA release forms first. o No Release Form:  Health information must be redacted prior to release. If staff are unsure what to redact, consult with the Attorney’s Office. To avoid the possibility of unauthorized staff access to the records, additional copies should not be made without consultation of the Attorney’s Office. o Proper Release Forms Provided:  To release/provide these records staff should not create additional copies in city files. The department that holds the records should directly provide the records to the requesting party (the patient or their authorized representative) rather than sending them to the City Clerk to avoid the possibility of unauthorized staff access to the records.  Never post these files to a publicly accessible location.  Best practice is to provide them as hard copy either in-person or via USPS to minimize the chances of unauthorized access by third parties. If the requester agrees to receive the records via email, they may be provided in this manner but must be accompanied by the disclaimer language below. Do not copy or blind-copy anybody on the email other than the designated individual named on the HIPAA release form.  Email Disclaimer: Your request was submitted as a Public Records Act (PRA) request. However, you have requested medical records or other records which contain private medical information, and which are not disclosable as a public record under the PRA. This request is not being treated as a Public Records Request, but as a request for medical information within the City’s possession pursuant to a valid release. Neither your request nor the responsive records will be publicly posted under the City’s standard PRA response procedures. The information contained in this e-mail message is intended only for the CONFIDENTIAL use of the designated addressee named above. The information transmitted is subject to the HIPAA Privacy Rule. Recipients should not file copies of this email with publicly accessible records. If you are not the designated addressee named above or the authorized agent responsible for delivering it to the designated addressee, you received this document through inadvertent error and any further review, dissemination, distribution or copying of this communication by you or anyone else is strictly prohibited. IF YOU RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY BY TELEPHONING THE SENDER NAMED ABOVE. Thank you.  Records disclosed in response to a PRA request are posted to a publicly accessible drive, which is why requests for medical records are not handled as PRA requests. In some cases, the request itself will contain confidential medical information (e.g., “seeking records of SLO Fire Department’s treatment of Jane Doe’s diabetic emergency on date), so the requests are also not publicly posted. Public Records Requests Procedures – updated August 2024 Page | 9 Personnel and Personal Records:  Departments likely to have record type: All  Statutes: § GC 7927.700 - Personnel or similar personal records are exempt from disclosure only if disclosure would constitute an unwarranted invasion of privacy. The California Supreme Court has determined that the names and salaries of public employees, including peace officers who earn $100,000 or more per year, are subject to public disclosure under the PRA. GC 7928.400, 53262(b) - Likewise, employment contracts with public officials or employees are not exempt from production. § GC 7922.000 - Questions often arise on whether a city must disclose personal information obtained from citizens in the course of regulatory activities. Examples include addresses and telephone numbers of permit parkers and tenants in rent-controlled units. The public agency bears the burden of proving the release of this information constitutes an unwarranted invasion of privacy and disclosure serves no valid purpose. § GC 7927.410 – Allows for exempting data regarding utility customers. § GC 7928.215 – Allows for the exemption of posting information about public officials on the internet.  Process: As this type of record may very likely be disclosable, seek assistance from the City Attorney. Copying Records/Costs Whenever possible we should supply the requested records electronically in pdf format by posting them to the public archive for public records request. Posting publicly makes it easily accessible to others requesting the same records.  If the request is for a specific electronic format, we must release it in that format if it is a format that we use.  Generally, we can’t charge for these electronic “copies.” However, there are exceptions for conversion of outdated platform file types. See §7922.570 - 7922.585 for the complete code.  If paper copies are requested, the current City Master Fee Schedule should be consulted for costs noted in the “General Government Fees” section. Note that copies of campaign statements, contributions and expenditure reports, or statements of disclosure of financial interest (Form 700) is ten cents ($0.10) per page GC § 81008(a). However, these are generally all posted on the City Clerk’s elections webpage under “Campaign Disclosure Statements.”  The requester should be informed in advance of making the copies, what the cost will be and that copies should only be released with payment. o Our informal process for providing physical copies is to provide them at no charge if the total is less than $5.00, as the staff costs to process the payment overall will exceed the copy cost reimbursement.  Copies (conversion to digital) of microfilm/fiche records or oversized plans (larger than 11 x 17) will be done at “market rate” as the City does not have the necessary equipment to make these copies. Destruction of Records Destruction of records are guided by the City’s Records policy and Retention Schedule. If a subpoena for records is received, a halt order on destruction of records that might be in process when a request is made shall be placed by the City Attorney for all records that are potentially responsive to the given request. It is best practice to also halt destruction of any potentially responsive records to a PRA request as well. Public Records Requests Procedures – updated August 2024 Page | 10 Additional Resources: The League resource is recommended to be read by all staff that have a responsibility in handling Public Records Act requests and/or work in any way with public meetings. League of California Cities, “The People’s Business, A Guide to the California Public Records Act. GC 7922 - See the State Legislature Legal Info index Public Records Requests Procedures – updated August 2024 Page | 11 CHECKLIST for Clerk’s Office PRR Input: ☐ Name (if provided) and contact information ☐ Records Required ☐ Clarifying communications to staff and/or requester if necessary ☐ Log Request (Excel) and set-up Archive (LF) ☐ Archive Request and “stamp” with identifier ☐ Identify Department(s) responsible for records and send Request to them via email ☐ Send Acknowledgement to Requester using “Records Request Acknowledgement PRRNumberName” as the naming convention ☐ Archive communications, adding chronological numbers PRR Determination & Updates ☐ Send to requester within 10 business days if request not yet complete. Use “Records Request Determination PRRNumberName” as naming convention ☐ Include estimated date of next response (not necessarily when records will be supplied) ☐ Use “Records Request Update” & Date followed by PRRNumberName as naming convention in email name for each consecutive batch of records as released PRR Final Response ☐ Use “Records Request Response PRRNumberName” as naming convention (include standard disclaimer and invitation to ask for additional records at the end). If records were withheld or redacted, the Atty office should supply language to be included for why and who reviewed the records.