Public Records Act FAQs
To make an on-line Public Records Act Request, please go to: www.energy.ca.gov/public_records/
What is this guide all about?
This guide is designed to provide helpful information to a party wishing to request records from the Energy Commission. It is provided for information only and is not intended to provide legal advice or to address every situation that may arise. Please seek the advice of a qualified attorney for answers to specific legal questions. The information in this guide is current through the date of publication, June 28, 2005.
Where can I find the rules that apply to requests for Energy Commission records?
The rules governing requests for Energy Commission records are located at Title 20, California Code of Regulations, sections 2501 through 2511, and in the California Public Records Act, California Government Code, beginning with section 6250. Copies of Title 20 can be obtained from the Energy Commission's Publication Unit by calling (916) 654-5200 or from the Energy Commission's website at www.energy.ca.gov/reports/title20/. The California Government Code can be accessed online at www.leginfo.ca.gov.
What is the process for inspecting and copying records?
Commission records, for the most part, are open and available to the public under the California Public Records Act (PRA).
To begin this process submit an oral or written request to the Office of Chief Counsel. The Chief Counsel is the head lawyer of the Energy Commission. The request needs to specify in sufficient detail the requested record so that the record can be identified and located by an Energy Commission employee.
Under Public Resources Code section 6253.1, the Energy Commission will help you in making a focused and effective request. What this means is that even if you are unsure of what exactly you are trying to locate, the Commission will help you refine your search.
The Energy Commission typically has 10 days to respond to your request. In this response the Energy Commission will inform you whether the records you requested are available for inspection and copying.
How can I inspect and/or copy records?
There are two options:
- You may inspect records at the Commission's office Monday through Friday, typically from 8am until 5pm. You will be provided with an area to inspect the records. The records may be inspected and copied only at the Commission's office.
- If you are unable to make it to Sacramento, copies of disclosable records can be mailed for a nominal fee that will cover the cost of copying and shipping. The Energy Commission will mail the records at a price of $.10 per page plus the price of postage.
Are all Energy Commission records available for inspection and copying?
No. Some records at the Energy Commission are exempt from disclosure.
Which Energy Commission records are exempt?
Exempt records fall within one of several exemptions in the Public Records Act. Records are commonly made exempt by state law. An example of an exemption under state law is one for trade secrets. If a person gives the Energy Commission information deemed to be trade secret that information will typically be kept confidential and cannot be accessed by members of the public.
Other examples of these exemptions include preliminary drafts and notes, pending litigation, an employee's medical files, exemptions allowed under federal law, and information on the location of Native American sacred places. (See California Government Code Section 6254, et seq. for a more complete list of exempt records)
In addition, those who submit records can apply to have those records marked as exempt by the Executive Director. In this application, the disclosing party will argue that it is reasonable for their record to be granted exempt status. If the Executive Director agrees and finds it reasonable to classify the records as confidential, the records will be exempt from disclosure.
Typically, disclosing parties that are unsure of whether they have material that will be exempt use this application method. It is a type of double assurance to a disclosing party that their records will be exempt from disclosure.
How does the Energy Commission determine which records are exempt?
Records become exempt in three ways at the Energy Commission:
- The PRA promotes disclosure of public records, but a law may make a certain type of record exempt from disclosure. If the California legislature passes a law that exempts certain types of records from disclosure (like the trade secrets example above), then the Energy Commission will treat those types of records as exempt from disclosure. (See California Government Code Section 6254, et seq.)
- Records that fall within the Public Interest Exemption (PIE). PIE is a statute that allows the Energy Commission to withhold a record that otherwise would be disclosed. In order for the Energy Commission to withhold a record using the PIE, the Energy Commission must demonstrate that the public's interest in nondisclosure clearly outweighs the public's interest in disclosure (See California Government Code Section 6255.).
- The application process discussed above. Third parties may apply to the Energy Commission and request the records they disclosed be exempt from disclosure.
How does a third party apply to the Executive Director to get his records exempt from disclosure?
Sometimes when a third party discloses a record to the Energy Commission, this third party is unsure as to if their document will be exempt from disclosure by operation of law. That is to say, they are unsure if their record will be exempt through an exemption in the PRA, or if the Energy Commission would find it exempt through the PIE balancing test.
In response to this uncertainty, the Energy Commission has developed a procedure by which a third party may apply to the Executive Director to have his record "stamped" as being exempt from disclosure.
In order for a record to be stamped as exempt in this way, the disclosing party must convince the Executive Director that the PRA or some other provision of law authorizes the Energy Commission to treat the record as exempt.
What difference does this "stamp" make?
If a request to inspect or copy a stamped record is denied by Chief Counsel, the Energy Commission has an internal appeal procedure by which the requesting party may appeal the decision. This process is described in greater detail below.
Conversely, no internal review process exists for records that do not have this stamp.
Is there any way that I may access a record that has this confidential "stamp"?
Access to these records is unlikely but not impossible.
To begin this process you would petition the Chief Counsel. In this petition you would need to make your case for why you should have access to the confidential record.
The Chief Counsel will respond in writing as to whether your request will be accepted or denied. If your request is denied, the Chief Counsel will outline the reasons for its denial.
Is this decision final?
Energy Commission regulations allow you to request that the full Commission review the Chief Counsel's decision on the 'stamped' record. This request must be made within 14 days of the denial of your request.
The Commission will either agree with the decision of Chief Counsel and withhold the record, or the Commission will disagree and allow for the record to be disclosed.
Is there an internal review process for disclosure decisions on records without the "stamp?"
No. If you request a record and the Chief Counsel denies your request for reason of exemption by statute (PRA, PIE), that decision is final. There is no way to appeal it within the Energy Commission.
May I use the courts to compel disclosure of records?
There is always the option of pursuing legal remedies to obtain the requested records.
For further assistance in pursuing this method of disclosure, it is best to contact an attorney.
A word of caution about these suits with the courts: Courts have the power to award the Energy Commission its cost of going to court if the Court finds your legal action regarding disclosure to be clearly frivolous.
However, if you are successful in your legal action and the court does compel disclosure, you will likely be able to recover your legal fees from the Commission.
I am still confused. What are the basic scenarios of PRA requests?
When you request to inspect or copy a document, one of three things will happen:
Disclosure.In this scenario, the Chief Counsel will respond to your request and disclose the record you have requested.
Non-Disclosure.If this is the case, the Chief Counsel will respond that the document is exempt from disclosure for one of the three reasons discussed above: PRA, PIE or the "stamp."
Insufficient Request.If your request is not clear and focused such that an Energy Commission employee will not be able to locate it, Chief Counsel will respond to you indicating this deficiency in your request. In this case, following 6253.1, the Energy Commission will work with you in clarifying your request.
What if I still have questions about the Public Records Act?
The Public Adviser can assist you with questions concerning the PRA.NOTICE: Distributed by the Public Adviser's Office. This is for informational purposes only. It is designed to assist you in understanding the process. It is, therefore, general in nature and does not discuss all exceptions and variations.
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