PUBLIC RECORDS ACT AND FEES
It looks like CalAware people are at it again. Many of you may have received a California Public Records Act request asking for the record or records which indicate what you charge for copies of crime or accident reports to those involved.
There is really only one reported case decision bearing on this point. The case is North County Parent’s Organization v. Department of Education 23 Cal.App.4th 144 (1994). In that case the Department of Education charged the plaintiffs twenty-five cents per page for copies of records produced pursuant to the Public Records Act. The plaintiff sued the Department of Education claiming that fee was excessive. The court held under Government Code Section 6253(b), agencies are only allowed to charge the “direct costs of duplication”. Those direct costs are items like Xerox paper, toner, cost of the copier etc. and do not include staff time for research and/or copying of the document. This court held that ten cents per page is a reasonable cost for agencies to charge.
This case, however, was decided in 1994 and some city attorneys and county counsels have decided to attach less significance to the ten cents per page holding of this case, because the cost of doing business has obviously increased since this case was decided. Therefore, some agencies in the state charge ten cents a page while others charge more than that based upon the city attorney’s or county counsel’s review of that agencies fee structure. You will need to check with your own municipal attorney as to how they interpret and apply this case.
This Public Records Act request targets what each agency charges for copies of crime or arrest reports to those involved. This request is related to Government Code Section 6254(f) which requires agencies to disclose certain information about reported events to the victims of an incident, their authorized representative or an insurance carrier against which a claim might be made on incidents, caused by arson, burglary, fire, explosion, larceny, robbery, car jacking, vandalism, vehicle theft, or any crime included in the victims of violent crime act. This is typically where the burglary victim will make a request for the copy of the burglary report of their house in order to prove to their insurance carrier that it was reported to the police. Agencies are similarly required to make copies of a traffic accident report available to people or entities involved in the accident pursuant to Vehicle Code Section 20012.
Most agencies charge a fee to provide copies of those reports to the individuals involved. If your agency possesses a record of how those fees were calculated by the agency, that appears to be the record that is being requested. In our opinion that would be a public record. It may be in the form of a city counsel resolution, or staff report prepared by the city attorney but it would be hard to argue that it is not a public record.
The other portion of the request deals with how an agency would charge to make a copy of a photograph, audio or video tape associated with such a report. Typically, a burglary victim or an individual involved in a traffic accident would not receive copies of the photographs or any audio or video tape associated with the report since it is only the report itself that they receive from the agency. What this request is probably targeting is what each agency would charge to make a copy of a photograph, audio tape or video tape that has already been made a public record. For instance, occasionally departments will release a booking photograph of an individual for whom they have a warrant of arrest to illicit the public’s help in finding that individual. Also, departments will release 911 audio tapes or a video surveillance tape of a crime in progress as a way to help solve the crime. When those items are released to the press, they become public record which means any local Public Records Act requestor could request their own copy of that photograph or tape.
The Public Records Act request at issue here is asking for any record or records that explain what each agency would charge to produce a copy of that photograph or that tape. If you have such a record it would most likely be public record and should be produced. If you don’t’ have such a record the Public Records Act allows each agency to say we don’t have such a record.
HOW THIS EFFECTS YOUR AGENCY
Like most of us learned in last year’s CalAware audit, it is most important that each agency decide what portion of this request is a public record or not and communicate that decision in writing to the requestor within ten calendar days of the request being made. If the agency does not respond to the requestor within ten calendar days, and inform the requestor the decision the agency has made on his or her request, the agency has violated the Act. All that is required is the agency send a letter to the requestor signed by the department head that indicates what part of the request is public record and what is not. As stated above, we think the request made in this instance is for a public record.
It is perfectly appropriate to indicate to the requestor that the records are available for pick up at the police department and to collect any fee associated with the copying of the record or records at the time of pick-up.
As always, we urge that you confer with your agency’s legal counsel before taking any action arising out of the information set forth in this memo. Should you wish to discuss this matter in greater detail, please feel free to contact Gregory Palmer or Martin J. Mayer at 714 – 446-1400 or via e-mail, gpp@jones-mayer.com, mjm@jones-mayer.com