My Response to Inability to Burn CD of Emails

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CITY
OF LEMON GROVE

REQUEST
FOR PUBLIC RECORDS

Date: January 28, 2010

RE: Public Records Act Request

Dear City Clerk Garcia,

I am in receipt of your latest correspondence dated January 27, 2010 wherein
you claim:

On January 20, 2010, you inquired about the
City's response regarding certain documents only available in hard-copy. As a
result of your further inquiry the City has again attempted to record e-mails
and calendars onto a CD as you have requested. However, in light of the City's
server and voluminous amount of documents the City's staff has not have the
expertise or equipment to create the copy of the electronic records in the CD
format that you have requested.

Therefore, you may either inspect the
hardcopy of the documents at City Hall during a mutually convenient time or,
pursuant to Government Code section 6253.9, the City may seek cost estimates
for an outside provider to compile, extract or program the copy in the CD
format and upon payment for said copy and agreement the City may proceed with
this request.

According to the documentation available on
the City of Lemon Grove’s website, the City utilized the services of the Lemon
Grove School District for their IT needs. 
The school district uses Citrix and Microsoft Office for their email
server which therefore uses Outlook as the email client.  While I doubt that this is the first time the
City has been asked to supply electronic records (Union Tribune March 13, 2006),
it is the City of Lemon Grove’s responsibility to learn how to supply their
electronic records in their electronic format to the public to abide by the
CPRA.  The public is not required to pay
to educate the City on matters they are required by law to do.

In
order to help the City fulfill their obligations under the CPRA, I have
attached instructions for City staff to learn and gain experience to create the copy of the electronic
records in the CD format that I have requested.

No provision of law dictates that a city must keep data in a specific electronic format;
rather, the choice lies within the discretion of the city. But once such a
format has been selected, the material must be made available for public
inspection, and copies of the data, in the electronic format in which it is
held, must be provided upon request. Section 6253.9 asks only whether a public
agency has information constituting a public record “in an electronic
format” -- not whether a statute dictates the use of such a format.

If the request is for a copy in an electronic format that
the city has used to create copies for its own use or for providing copies to
other public agencies, the fee that may be charged is “limited to the direct
cost of producing a copy of [the] record in [the] electronic format.” (§
6253.8, subd. (a)(2); see North County Parents Organization v. Department of
Education (1994) 23 Cal.App.4th 144, 148 [“ ‘Direct cost’ does not include
the ancillary tasks necessarily associated with the retrieval, inspection and
handling of the file from which the copy is extracted”]; 85 Ops.Cal.Atty.Gen.
225, 227-229 (2002).)

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).

According to the City of Lemon Grove Fee Schedule for 2010,
the fee for copies listed as of July 1, 2009 is $3.50.  Therefore, please have your staff follow the
instructions in the attached enclosures to burn the electronic records
requested on a CD for the scheduled fee of $3.50.

Thank you for your time and attention to this matter.

Sincerely,

Enclosures: Microsoft Office Online Instructions to create, copy, or archive
email data and/or burn it to CD.

CC:      Terry
Francke, General Counsel 

            Californians Aware

            2218 Homewood Way

            Carmichael, CA 95608

Edited by sbd - 02/February/2010 at 6:45am

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sbd Members Profile Send Private Message Find Members Posts Add to Buddy List New User Joined: 02/February/2010 Location: San Diego Posts: 1	Quote Reply Topic: My Response to Inability to Burn CD of Emails Posted: 02/February/2010 at 6:40am
	CITY OF LEMON GROVE REQUEST FOR PUBLIC RECORDS Date: January 28, 2010 RE: Public Records Act Request Dear City Clerk Garcia, I am in receipt of your latest correspondence dated January 27, 2010 wherein you claim: On January 20, 2010, you inquired about the City's response regarding certain documents only available in hard-copy. As a result of your further inquiry the City has again attempted to record e-mails and calendars onto a CD as you have requested. However, in light of the City's server and voluminous amount of documents the City's staff has not have the expertise or equipment to create the copy of the electronic records in the CD format that you have requested. Therefore, you may either inspect the hardcopy of the documents at City Hall during a mutually convenient time or, pursuant to Government Code section 6253.9, the City may seek cost estimates for an outside provider to compile, extract or program the copy in the CD format and upon payment for said copy and agreement the City may proceed with this request. According to the documentation available on the City of Lemon Grove’s website, the City utilized the services of the Lemon Grove School District for their IT needs. The school district uses Citrix and Microsoft Office for their email server which therefore uses Outlook as the email client. While I doubt that this is the first time the City has been asked to supply electronic records (Union Tribune March 13, 2006), it is the City of Lemon Grove’s responsibility to learn how to supply their electronic records in their electronic format to the public to abide by the CPRA. The public is not required to pay to educate the City on matters they are required by law to do. In order to help the City fulfill their obligations under the CPRA, I have attached instructions for City staff to learn and gain experience to create the copy of the electronic records in the CD format that I have requested. No provision of law dictates that a city must keep data in a specific electronic format; rather, the choice lies within the discretion of the city. But once such a format has been selected, the material must be made available for public inspection, and copies of the data, in the electronic format in which it is held, must be provided upon request. Section 6253.9 asks only whether a public agency has information constituting a public record “in an electronic format” -- not whether a statute dictates the use of such a format. If the request is for a copy in an electronic format that the city has used to create copies for its own use or for providing copies to other public agencies, the fee that may be charged is “limited to the direct cost of producing a copy of [the] record in [the] electronic format.” (§ 6253.8, subd. (a)(2); see North County Parents Organization v. Department of Education (1994) 23 Cal.App.4th 144, 148 [“ ‘Direct cost’ does not include the ancillary tasks necessarily associated with the retrieval, inspection and handling of the file from which the copy is extracted”]; 85 Ops.Cal.Atty.Gen. 225, 227-229 (2002).) 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). According to the City of Lemon Grove Fee Schedule for 2010, the fee for copies listed as of July 1, 2009 is $3.50. Therefore, please have your staff follow the instructions in the attached enclosures to burn the electronic records requested on a CD for the scheduled fee of $3.50. Thank you for your time and attention to this matter. Sincerely, Enclosures: Microsoft Office Online Instructions to create, copy, or archive email data and/or burn it to CD. CC: Terry Francke, General Counsel Californians Aware 2218 Homewood Way Carmichael, CA 95608 Edited by sbd - 02/February/2010 at 6:45am