California

Fees
Online
Software
Special cases
Resources

For years, reporters seeking databases in California have run into problems with agencies providing computer printouts over electronic data. In 2001, the law was altered to require agencies to make electronic information available to requesters. Other barriers to accessing databases in California have been and continue to be high costs for acquiring data and the state’s strict privacy laws that make getting information on individuals difficult.

The law. The California Public Records Act applies to any "writing containing information relating to the conduct of the public’s business . . . regardless of physical form or characteristics." It defines writing to include "magnetic or paper tapes, . . . magnetic or punched cards, discs, drums and other documents." Cal. Gov’t Code § 6252. The fact that public records may be stored in a computer does not effect their status as public records. Cal. Gov’t Code § 6254.9(d). Section 6253.9, which became effective Jan. 1, 2001, requires public agencies that have information which constitutes an identifiable public record from disclosure that is in an electronic format to make that information available in an electronic format when requested unless it is otherwise exempt from disclosure. This statute supersedes portions of an earlier statute (Section 6253(b)) that allowed public agencies to determine the form in which computer data would be made available.

The requester can choose the format if it is one that has been used by the agency to create copies for its own use or for provision to other agencies. Cal. Gov’t Code § 6253.9(a)(2). Otherwise, the agency shall make the information available in any electronic format in which it holds the information. Cal. Gov’t Code § 6253.9(a)(1). However, § 6253.9 does not require release of records in electronic format where "release would jeopardize or compromise the security of integrity of the original record or any proprietary software in which it is maintained." Cal. Gov’t Code § 6253.9(f).

While the requester can try to persuade the public agency to do a customized search, there is no provision requiring the agency to provide electronic information other than in a format in which it normally keeps the information or in a format that has been used by the agency to create copies for its own use or for use by other agencies. Cal. Gov’t Code § 6253.9(a). Moreover, an agency is not required to reconstruct a record in an electronic format if the agency no longer has the record available in an electronic format. Cal. Gov’t Code § 6253.9(c). However, an agency arguably cannot deny access to public information because the request would require it to "compile data, write programming language or a computer program, or to construct a computer report to extract data." These are legitimate reasons for allowing the agency to extend the time necessary to comply with a Public Records Act request, but not for denying access altogether. See Cal. Gov’t Code § 6253(c)(4).

Cases & opinions. Judicial records are not subject to the Public Records Act, but a computerized list of prospective jurors and their addresses is public. However, confidential questionnaires completed by prospective jurors and used by the court to compile a master list are not public for privacy reasons. "Confidential" information, such as occupation, former felonies and former jury service, had to be deleted before providing the data in printed form or on computer tape. Pantos v. San Francisco, 198 Cal. Rptr. 489 (Cal. Ct. App. 1984).

The "Gang Reporting, Evaluation and Tracking" (GREAT) system contains intelligence information and security procedures incorporated into the gang reporting, evaluation, and tracking system by law enforcement agencies. The records are not subject to public disclosure under the Public Records Act. (Att’y Gen. Op. No. 95-607, Sept. 13, 1996)

Fees. The act allows fees only for "direct costs" of copying a record unless another statute specifically allows search fees or higher copying fees. Cal. Gov’t Code § 6257. No fee or other charge may be imposed as a condition of accessing information available by way of the computer network over the Internet. Cal. Gov’t Code § 10248. In a case involving a commercial requester, a statutory fee was upheld as reasonable even though the agency made a profit from copying computer tapes. Shippen v. Dept. of Motor Vehicles, 208 Cal. Rptr. 13 (Ct. App. 1984).
A public agency may charge a fee for a copy of a public record in an amount that is either (1) based upon and limited to the "direct costs of duplication" or (2) authorized and determined under some other statute. North County Parents Organization v. Department of Education, 23 Cal.App.4th 144, 147-148 (1994).

When the electronic record is in a format that has been used by an agency to create copies for its own use or for provision to other agencies, an agency may charge only the direct cost of duplication, which is the direct cost of producing the record in the electronic format. Cal. Gov’t Code § 6253.9(a)(2). When, however, the record is one that is produced only at otherwise regularly scheduled intervals or when the request would require data compilation, extraction, or programming, an agency may charge for the cost of producing a copy of the record, including the cost of constructing the record and the cost of programming and computer services necessary to produce a copy of the record. Cal. Gov’t Code § 6253.9(b).

A county board of supervisors may charge fees for copying public records in excess of the amount mandated by the California Public Records Act. An opinion by the state’s attorney general contrasts the fee mandate in the CPRA, which allows only for direct cost of duplication, with a competing government code, § 54985, which states that a "county board of supervisors shall have the authority to increase or decrease the fee or charge, that is otherwise authorized to be levied by another provision of law." The fee must be an amount "reasonably necessary to recover the costs" of the copy.

"In charging a fee to cover its costs," the opinion said, "a county board of supervisors could conceivably benefit those being charged since ‘an inability to charge fees in a sufficient amount to cover costs would likely produce inadequate staffing.’" Fees that largely exceed the direct cost of copying are not unusual in California, said Tom Newton of the California Newspaper Publishers Association, noting that in some areas people are charged as much as $20 for a police report. Calif. Atty. Gen. Op. 01-605, Nov. 1, 2002).

Software. A statute exempts from disclosure computer software developed by a state or local agency. Software includes "computer mapping systems, computer programs, and computer graphics systems." The statute says information is not software merely because it is stored in a computer. State agencies may sell, lease, or license the software for commercial or noncommercial uses. Computer software, defined as "computer mapping systems, computer programs and computer graphics systems," developed by a state or local agency is not itself a public record under the CPRA. Cal. Gov’t Code § 6254.9.

Online. All state statutes, the constitution and current legislative information are available in electronic form through the Internet. Cal. Gov’t Code § 10248.

The department of real estate is required to disclose information on its licensees, including real estate brokers, on the Internet. Cal. Gov’t Code § 11018.5. Lobbying and political contribution reports required by the Political Reform Act of 1974 may now be filed electronically. Cal. Gov’t Code §84602.

Additionally, the Legislative Counsel is required to make available via the Internet its calendar, hearing schedules, a list of matters pending on the floor of both houses, a list of legislative committees and their members, as well as all bill information for the current legislative session, including the text of all versions of any bill, the bill’s history and status, analysis of legislative committees, all vote information, and any veto message. Cal. Gov’t Code § 10248. No state or local agency shall post the home address or telephone number of any elected or appointed official on the Internet without first obtaining the written permission of that individual. Cal. Gov’t Code § 6254.21.

Special cases. Voter records — media exemption under the election code, section 2194. Voter registration card information: "Shall be confidential and shall not appear on any computer terminal, list, affidavit, duplicate affidavit, or other medium routinely available to the public at the county elections official’s office. (2) Shall be provided with respect to any voter, subject to the provisions of Section 2188, to any candidate for federal, state, or local office, to any committee for or against any initiative or referendum measure for which legal publication is made, and to any person for election, scholarly, journalistic, or political purposes, or for governmental purposes, as determined by the Secretary of State."

Vital Records. On Sept. 25, 2002, Gov. Gray Davis signed a bill limiting access to indices of vital records such as births, deaths and marriages. He said the move will protect the public from "identity theft," but an open-records advocate calls the measure "a terrible precedent." As a result, the state limited access to vital records data such as births, deaths and marriages and created a tiered system for who can access which level of detail. The indices are exempt from disclosure under the CPRA. Under the new law, members of the public and media may "view" an edited version of the records, but only after certifying under penalty of perjury that they will not to use the information viewed to commit a crime. Vital records would still be available to government and law enforcement agencies, but these agencies would be prohibited from selling or releasing these indices, except as authorized by law. Cal. Health and Safety Code § 102230-102232.

Home Addresses in DMV, voter registration, gun license, public housing, local agency utility and public employee records are exempt, as are addresses of certain crime victims. (§§ 6254(f),(u), 6254.1, 6254.3, 6254.4, 6254.16, 6254.21)

Police Incident Reports, Rap Sheets and Arrest Records are exempt (Penal Code §§ 11075, 11105, 11105.1), but information in the "police blotter" (time and circumstances of calls to police; name and details of arrests, warrants, charges, hearing dates; etc.) must be disclosed unless disclosure would endanger an investigation or the life of an investigator.

Resources. California First Amendment Coalition; California Newspaper Publishers Association