RESOLUTION NO.
Resolution No. 2024-207 PAGE 1 of 6
ADMINISTRATIVE
POLICIES REVISION SUPERSEDES
SUBJECT
City of San Bernardino California Public
Records Act Policy
APPROVED BY:
City Council
EFFECTIVE DATE
October 2, 2024
ARTICLE III. PURPOSE
The purpose of this policy is to provide direction on how to receive, process, and respond to requests to inspect or receive copies of City of San Bernardino (“City”) records. All requests for City records will be handled pursuant to the provisions of the California Public Records Act (“PRA”).
ARTICLE IV. DEFINITIONS
Section 4.2 Definitions
A. “City personnel” shall collectively refer to all City employees, elected officials, appointed officials, consultants, as well as volunteers and other non-employees who prepare, own, use, or retain public records on behalf of the City.
B. “Public record” is defined by the PRA and includes any writing that contains information relating to the conduct of the public’s business prepared, owned, used or retained by the City regardless of physical form or characteristics, and regardless of whether created or transmitted on or by a City-owned device.
C. “PRA Coordinator” is the person or team designated by the applicable City Department Head to coordinate with the City Clerk’s Office to manage PRA requests.
D. “Writing” shall mean any 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 combination thereof, and any record thereby created, regardless of the manner in which the record has been stored.
Section 4.3 General Scope
This policy applies to all City personnel and shall be interpreted to be consistent with other City-wide policies and the law.
ARTICLE V. POLICY & PROCEDURES
Section 5.2 Policy and Procedures
The public has a fundamental right to copy and inspect public records. It is imperative for City personnel to properly gather responsive records, review the records for privileged or exempt information, and produce responsive disclosable documents in a timely manner. All City personnel are tasked with
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prioritizing PRA requests as reasonably permitted by their job duties. The PRA Coordinator is responsible for gathering responsive records and responding to the City Clerk’s Office. However, it is the responsibility of all City personnel to assist in producing responsive records.
Section 5.3 The PRA Request
A. Any member of the public may make a records request. The City cannot require the requester’s name or purpose of the request but may request the requester’s contact information in order to transmit the requested records. Anonymous requests or fictitious names are permitted. If the requester refuses to give his/her contact information, City personnel shall set a date within 10 calendar days for the requester to check on the status of the request.
B. Any request (verbal or written) to review a record qualifies as a PRA request. The requester is not required to cite the PRA or file a written request with the City Clerk’s office.
i. If City personnel receive a verbal request, he/she may ask (but not require) the person to put the request in writing. If the person does not put the request in writing, City personnel shall document the request to the best of his/her ability following the procedure outlined below.
a. Whether the request is made in person or via the phone, city personnel shall note the date and time of the request.
b. City personnel shall identify the requester by asking for their name and contact information.
c. City personnel shall ask the requester to provide a clear and specific description of the records they are seeking and document the information received.
d. Once this information is compiled, city personnel shall create a formal record by emailing the following information to the City Clerk. i. Date and time of the request
ii. Description of the records requested
iii. The method of contact (in person, phone, etc.)
ii. Contact Information
v. Any additional remarks or context provided by the requester ii. While any records request may qualify as a PRA request, the request may be made pursuant to a different body of law with unique requirements. Note that the requester could have a statutory right to the records that is outside the PRA (i.e., an employee’s request to review his/her personnel file, a request for a Statement of Economic Interest (FPPC Form 700), a request for copies of certified payroll records; etc.).
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C. Once the City receives a PRA request, City personnel shall stamp the PRA request with the date received. The date received is the date the City learns of the PRA request (i.e., opens the email or opens the mail). If a PRA request is received by a department, it will immediately be forwarded to the City Clerk Department for processing. City Clerk Staff shall mark the PRA request with the appropriate reference number.
D. All PRA requests shall be forwarded to the department’s PRA Coordinator. i. The City Clerk or their designee will be responsible for requests involving the Mayor and City Council, department heads, media, or emails. ii. The City’s Public Information Officer will be notified of any requests involving the media.
iii. Any PRA request involving members of the City Council should also be forwarded to the City Attorney and City Manager.
iv. Upon notification to the City Clerk’s office, requests for private personnel records may be provided directly to the City Attorney’s office liaison for review before release
E. If the request does not reasonably identify a City record, the PRA Coordinator shall make every effort to assist the requester in making a focused and effective request. The PRA Coordinator shall document their efforts to provide the City Clerk’s office with information to:
i. Assist the member of the public to identify records and information that are responsive to the request or to the purpose of the request, if stated. ii. Describe the information technology and physical location in which the records exist.
iii. Provide suggestions for overcoming any practical basis for denying access to the records or information sought.
F. Modified requests should be documented in response letters to the requester, per Section
3.3.B.
Section 5.4 Gathering Responsive Records
A. The City Clerk or their designee will notify the Department PRA Coordinator when a request is received. The PRA coordinator shall immediately notify City personnel most likely to have responsive records (i.e., requests for planning documents should go to Planning Staff/Planners).
i. It is the responsibility of all City personnel to assist in gathering responsive records.
After learning of a relevant PRA request, City personnel shall produce responsive records to the PRA Coordinator as expeditiously as possible. ii. When determining whether a record is responsive, City personnel shall consider if a reasonable person would interpret the request to include a particular document.
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iii. City personnel shall gather responsive records held on private devices or accounts in accordance with the following procedure:
a. In the event that the City receives a PRA request that either explicitly seeks documents on private devices or accounts or can be reasonably interpreted as such, the PRA Coordinator shall promptly communicate the request to the relevant City personnel who may reasonably be in possession of responsive records. Such City personnel shall conduct a reasonable search for any responsive records they may hold on personal devices or accounts. b. City personnel shall then provide responsive public records to the PRA Coordinator. These records are still subject to review and redactions for PRA exemptions before production by the City Clerk or their designee. City personnel shall provide responsive public records regardless of the potential exemptions.
c. Purely personal records need not be provided to the PRA Coordinator. In the event that City personnel makes a decision to withhold any responsive records that do not qualify as public records, he/she shall submit a statement with facts sufficient to show the record is not related to City business. The City Clerk or their designee after consultation with the City Attorney shall determine whether the statement has sufficient facts. d. If a search of a private device or account is reasonably responsive to the PRA request, City personnel shall document his/her search, even if no records were found. City personnel shall document:
(i) Search terms used;
(ii) Date of search(es);
(iii) Locations searched;
(iv) Whether responsive records were found; and
(v) Description of records found, if any.
e. City personnel shall complete and submit an affidavit/declaration on a form approved by the PRA Coordinator that contains all of the information set forth in subsections (A)(iii)(c)-(d) above, as well as an attestation declaring that the information provided on the form by City personnel is true and correct. (See Section 3.6 below)
f. The City Clerk or their designee, in consultation with the City Attorney shall determine whether a particular record, or any portion of that record, is exempt from disclosure, per the California Public Records Act.
B. The PRA Coordinator shall gather all responsive records, including privileged documents.
These unredacted documents shall be retained for at least two years after the date of final production.
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C. City personnel shall not create a record in response to a PRA request that does not otherwise exist, without supervisor approval. The City Attorney shall be consulted in these instances.
i. PRA requests that seek documents yet to be created (i.e., future City Council agendas) should be denied, as no record exists.
Section 5.5 Response Timelines
A. The City is required to respond to the requester promptly, but at least within ten (10) calendar days after receipt of the request. If the tenth day falls on a weekend or a holiday, the due date is the next business day. For example, if the City receives a request on February 1, then the tenth day is February 11. If February 11 is a Saturday, then the response is due on Monday, February 13.
B. Note, the City is not required to produce documents within 10 calendar days, but the City Clerk’s Office must respond to the requester in writing with most applicable option below:
i. Inform the requester that the City has no responsive records. ii. Produce non-exempt, responsive records, noting any redactions or withheld records and citing the appropriate exemptions. See Section 3.5 below. iii. Inform the requester that the City has responsive records and set a reasonable date in the future for production. The documents may be produced at one time or on a rolling basis. Consult your supervisor about the timing of the production depending on the complexity of the response.
a. If the records need to be produced on a rolling basis, establish a production schedule and share the schedule with the requester.
b. Every effort shall be made to produce at least one responsive record to the requester within 10 calendar days.
iv. Inform the requester that the City is taking an extension of 14 calendar days to determine whether it has responsive records. The City does not need to request the extension, but may take the extension as matter of right. a. This extension must be made pursuant to Government Code section 7922.535, subdivision (a), citing one or more of the following reasons:
(i) 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.
(ii) The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records that are demanded in a single request.
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(iii) 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. (iv) The need to compile data, to write programming language or a computer program, or to construct a computer report to extract data. b. After the 14-day deadline, the City must respond pursuant to Sections
3.4.B.i-iii above.
Section 5.6 Producing the records
A. The City Clerk or their designee may email responsive records to the requester or use file sharing to produce the records. The requester shall not be charged for the production of electronic records pursuant to this subdivision (A).
B. When producing hard copies, the City may charge fees in accordance with the City’s most recently adopted Comprehensive Fee Schedule.
i. City personnel shall receive payment before making a significant number of copies.
City personnel shall estimate the charge for the copies and inform the requester that the City will refund any overages.
ii. City staff may not charge the requester for the time collecting or processing the records and may only charge for the direct cost of duplicating the records. a. Exceptions may be made when the request requires data compilation, extraction, or programming or the City would be required to produce a copy of an electronic record and the record is one that is produced only at otherwise regularly scheduled intervals. Consult with the City Attorney in these instances.
Section 5.7 Affidavits
A. When a request asks for text, voicemail, phone call, or email records, City Staff will provide the applicable staff member or members of the legislative body with an Affidavit/Declaration of Records approved by the City Clerk and City Attorney. The applicable member is responsible for completing the Affidavits/Declarations within ten days of receiving notification from the City Clerk Department and returning it to the City Clerk Staff.
B. The City’s Information Technology department will be responsible for searching City systems for responsive emails. Staff are responsible for searching their City-issued and personal devices and/or accounts for any other applicable records.
Section 5.8 Exemptions
A. City personnel shall only redact the specific portion of the record that is exempt.
Redactions should not only black out the information but also delete any embedded hyperlinks.
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B. Information contained in a record that is non-responsive to the PRA request shall not be redacted. Only information that is subject to an exemption may be redacted.
C. Responsive records shall be reviewed by the City Clerk’s Office to assess whether: 1.) the responsive records are public record and 2.) an exemption applies. Non-public records may be records that are primarily personal, containing no more than incidental mentions of agency business. Non-public records are not subject to the PRA and are not required to be disclosed for a PRA request. The City Clerk or their designee may seek guidance from the City Attorney’s Office regarding complex or sensitive public record requests.
D. Common exemptions:
i. The “Catch-All” Exemption. Information or documents may be withheld if the City can demonstrate that, on the facts of the particular case, the public interest served by non-disclosure clearly outweighs the public interest served by disclosure. (Gov.
Code, § 7922.000 .)
a. If the City applies this exemption, the response letter must list the name and title of the person responsible for claim of exemption. ii. Personnel, Medical or Similar Files (Gov. Code, § 7927.700) iii. Public Employee home addresses, home telephone numbers, personal cell phone numbers, and birth dates (Gov. Code, § 7928.300)
iv. Law Enforcement Investigative Records (Gov. Code, § 7923.600-7923.625) v. Pending Litigation (Gov. Code, § 7927.200)
vi. Voter Information (Gov. Code, § 7924.000)
vii. Tax Payer Information (Gov. Code, § 7924.315)
viii. Law Enforcement Personnel Records (Penal Code §832.7) ix. Attorney-Client Privileged Communications or Attorney Work Product. (Evid.
Code, § 954 et seq.; Code Civ. Proc., § 2018.030)
x. Trade Secrets (Civ Code, § 3426.1(d))
Section 5.9 Violations
Violation of this policy may result in disciplinary action, up to and including termination of employment, in accordance with the City of San Bernardino’s personnel rules.