TO: RULES AND OPEN
GOVERNMENT COMMITTEE
FROM: Matt Loesch
SUBJECT: Public Records Appeal –
Michael Wagner
DATE: March 16, 2025
Approved Date:
3/21/25
RECOMMENDATION
Consider the Public Records Act appeal from Michael Wagner of the decision to withhold responsive records under California Government Code Sections 7922.000 and 7923.600.
BACKGROUND
On November 18, 2024, the City received a Public Records Act request from the Requester, in which he asked for: “…the controlled substance logbook for FY 2023 - 2024.” Animal Care & Services identified responsive records in hardcopy, resulting in approximately 500 pages of responsive records. If these records were not exempt, the City would have been entitled to recover, in part the cost to duplicate the records under the Open Government and Ethics Resolution No. 77135 § 4.3.4.1.D.
Following a series of exchanges with the requestor regarding duplication cost and production, the City had an opportunity to more closely review the records and responded to Mr. Wagner on December 13, 2024 notifying him that the records were in fact exempt under California Government Code § 7922.000, as the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record. On December 16, 2024, the requester appealed the December 13, 2024 response.
The Public Records Act generally requires disclosure of public records unless exempt from disclosure by express provisions of law. Government Code Section 7923.600(a) provides in relevant part:
RULES AGENDA: 3/26/25
ITEM: C1
RULES AND OPEN GOVERNMENT COMMITTEE
March 16, 2025
Subject: Public Records Appeal – Michael Wagner
“…this division does not require the disclosure of records of…any investigatory or security files compiled by any other state or local agency for correctional, law enforcement, or licensing purposes.” (emphasis added)
ANALYSIS
The Controlled Substances Act is a federal law that regulates the dispensing and administering controlled substances through, in part, registration with the Drug Enforcement Agency (DEA). The California Veterinary Medical Board (Board) enforces this federal registration requirement through its authority under state law to license veterinarians. DEA registration holders are subject to record keeping and reporting requirements and the Board has specific authority to enforce state pharmacy laws1.
State pharmacy law2 incorporates federal law enforcement through the Controlled Substances Act .
The Controlled Substances Act requires records be kept for at least 2 years from the date of each inventory or record3 or 3 years from the date of the animal’s last visit4, whichever is greater. Such controlled substance logbooks must be available for inspection and copying by authorized DEA or Board personnel. Veterinary clinics and hospitals are required to implement tight security measures to ensure the safety and proper use of controlled substances. Access to the log must be restricted only to authorized personnel, free from tampering and kept current and secure.
Since the Controlled Substance Act specifically confers the DEA and Board access because of their regulatory oversight, it is considered a record compiled by the City to comply with licensing requirements under state and federal law. Separately, while the general practice of how the City could improve on the protocols for maintaining the log has been the subject of a City audit, specific log information has not been published.
Separate from the specific exemption, the public interest in withholding these records outweighs the public interest in disclosure because the City’s audit report is already available to the public and adequately addresses the public interest regarding City practice and improvements.
For the reasons stated above, the Administration recommends upholding the decision to withhold the responsive records.
1 California Business & Professionals Code Section 4170(c) 2 California Business & Professionals Code Section 4052 requires registration with the DEA and Section 4066 requires conformity with 21 CFR 1301.28
3 21 C.F.R. §1304.04(a)
4 21 C.C.R. §2032.3(b)
RULES AND OPEN GOVERNMENT COMMITTEE
March 16, 2025
Subject: Public Records Appeal – Michael Wagner
COORDINATION
This memorandum was coordinated with the City Attorney’s Office. /s/
MATT LOESCH
Director of Public Works
The principal author of this memorandum is Heather Kameda, Senior Office Specialist, Public Records Coordinator. For questions, please contact [email protected].