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Public Records Requests and Complainant Confidentiality

POLICY #: 100-27
ISSUED: January 18, 2001
EFFECTIVE: January 18, 2001

POLICY

Key elements of the Public Records Act (Government Code, Section 6250 et seq.), and subsequent Attorney General interpretations and court decisions that apply to requests for public records from this Department include the following, cited directly from these sources:

"Any person may receive a copy of any identifiable public record or copy thereof. Upon request, an exact copy shall be provided unless impracticable to do so."

"Each agency, upon any request for a copy of records, shall determine within 10 days after the receipt of such request whether to comply with the request and shall immediately notify the person making the request of such determination and the reasons therefor.

"Except with respect to public records exempt by express provisions of law from disclosure, each state or local agency, upon any request for a copy of records, which reasonably describes an identifiable record, or information produced therefrom…. Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt by law."

Government agencies "may charge a fee for the direct cost of duplication." This direct cost of duplication includes copy machine costs and the costs of personnel time to make the copies. It "does not include ancillary tasks necessarily associated with the retrieval, inspection, and handling of the file from which the copy is extracted."

IMPLEMENTATION

To implement these elements of the Public Records Act, the Department has developed the following procedures:

General Procedures

1. In order that the requirements stated herein apply to a request for information, the request must be made in writing and be dated.

2. The request must reasonably describe an identifiable public record. If the request is too vague to describe an identifiable record, then it is possible that the request may not fall under the rubric of the Public Records Act.

3. Charges for responding to requests that qualify under the Public Records Act must be limited to the actual cost of copying, as defined in Departmental Policy #100-23 (Charge Per Copy for Standard Documents). If a request does not qualify under the Public Records Act because it does not reasonably describe an identifiable public record, then the request may instead qualify as research, for which the Department is authorized to charge up to $78 per hour. Check with your supervisor, the Director, or the Fiscal Administration Manager when in doubt.

4. Charges for responding to requests that qualify under the Public Records Act may not include ancillary charges such as fax charges, staff time to handle the file (other than direct photocopying time), or staff time spent deleting confidential portions.

5. Upon receipt of a written request for public information, the request should be forwarded to the manager/supervisor of the division to which the subject matter pertains. The Manager should determine within ten (10) days after the receipt of the request by the Department whether to comply with the request, and shall respond in writing under the Director's signature to the person making the request of such determination and the reasons therefor. That letter will include the public information requested, or will note the approximate length of time to produce the requested information and a statement of cost per page for reproduction if applicable.

6. While not specifically required by the Public Records Act, the Department will make every attempt to provide the information requested within 30 to 60 days after receipt of the request.

7. While not specifically exempt by the Public Records Act, it is this Department's policy to withhold information that would identify a complainant except by court order. The court order must specifically state that complainant-identifying information must be provided. The purpose of this policy is to preserve the integrity of the complaint process as a means to complete the Department's mission to protect the public health and safety. To release complainant information without a court order's specific request to do so may have the effect of discouraging complainants from reporting violations, for fear of recrimination, thus obstructing this Department's mission.

8. Procedure that applies to "receipts" provided to the Department pursuant to Section 8.44.020(B) of The Naturally Occurring Asbestos and Dust Protection Ordinance, No. 4548 ("Ordinance")

A. Determination of Whether Supplier of Receipts Maintains the Receipts as Confidential Trade Secret Information. When the Department is provided receipts pursuant to Ordinance section 8.44.020(B), accompanied by a written statement from the supplier identifying specific information that the supplier considers to be exempt from disclosure under the California Public Records Act ("Public Records Act"), Government Code sections 6250 et seq., and specifying the factual basis upon which the supplier considers the information to be exempt, the Department will treat the information as "confidential information" and the receipts as "confidential receipts" in the manner described in this procedure.

B. Filing and Maintenance of Confidential Receipts. The Department will file and maintain confidential receipts it receives in a manner so that the confidential receipts are segregated from other documents. A label will be placed on each file containing confidential receipts to indicate that the confidential receipts are "Confidential Records - Exempt from Public Disclosure in Whole or Part." Confidential receipts will be considered records of the Department, and not records of the El Dorado County Air Quality Managment District ("AQMD").

C. Use of Confidential Information and Confidential Receipts. The Department and the AQMD may each use confidential information or confidential receipts for the purpose of enforcing the Ordinance, and not for any improper purpose, such as to attempt to deter a customer from purchasing rock materials from the supplier of the confidential receipts. Neither the Department nor the AQMD will disclose confidential information or confidential receipts, nor will they provide copies of confidential receipts without first obliterating all confidential information, to any person other than employees of the County or the AQMD, or contractors providing professional services to the County or the AQMD, unless compelled to do so by law, or as otherwise provided by this procedure.

D. Public Records Requests. If any person, entity, or public agency should make a public records request pursuant to the Public Records Act that seeks to review the confidential receipts and/or obtain copies of the confidential receipts then: (1) the Department will advise the requestor in response to the public records request that specified information in the confidential receipts has been identified by the supplier as exempt from disclosure under the Public Records Act; (2) the Department will notify the County's Office of the County Counsel of the public records request; (3) the Department will notify the supplier of the confidential receipts that the public records request has been made; and (4) if the Department receives timely notification that the supplier asserts exemptions from disclosure in response to the particular request, and that the supplier agrees to indemnify the County from and against any attorney's fees or costs incurred by asserting the exemption, or which may be awarded against the County in any action to force disclosure, then County will assert the exemptions from disclosure identified by the supplier and will respond the public records request in a fashion that preserves the asserted exemptions and the confidentiality of the confidential information.

E. Requests by Other Public Entities. If a public entity other than the County or the AQMD should make a request that seeks to review the confidential receipts and/or obtain copies of the confidential receipts, then: (1) the Department will advise the requestor in response to the request that specified information in the confidential receipts has been identified by the supplier as not subject to disclosure because the Department has been notified by the supplier that the confidential receipts contain confidential information. (2) the Department will notify the County's Office of the County Counsel of the request; (3) the Department will notify the supplier of the confidential receipts of the request; and (4) if the Department receives timely notification that the supplier asserts privileges against disclosure in response to any particular request, and the supplier agrees to indemnify the County from any attorney's fees or costs incurred by asserting the privileges, or which may be awarded against the County in any action to force disclosure, then County will assert the privileges identified by the supplier. In the event that a court determines that the County is not required to turn over the confidential receipts to the requesting public entity, then the County shall not require that the supplier indemnify the County for the attorney's fees and costs incurred resulting from the request and court action.

F. Court Actions. In the event that a requestor of the confidential receipts files an action in a court of law seeking to review and/or copy the confidential receipts, the County will advise the court that the supplier of the confidential receipts has asserted that the confidential information in the confidential receipts is exempt from, or privileged against, disclosure and that the facts supporting the exemption or privilege are in the possession of the employer. The County will invite the supplier of the confidential receipts to intervene in the lawsuit as an interested party to defend its own interests with respect to the confidential information and confidential receipts. If the supplier fails to timely intervene, the County may abandon the claim of exemption or privilege in its discretion. If the court determines that the confidential information in the confidential receipts is not exempt from, or privileged against, disclosure, then the County will seek to have any costs (including attorneys fees) awarded in the action by the Court assessed solely against the supplier.

COMPLIANCE

Failure to comply with this policy may result in disciplinary action up to and including dismissal.