Submittals & Check Prints Public Records?

[Scott]

Are submittals & check prints public records?

[Warren Smith]

I've heard varying opinions on this.

Tentative maps are indeed public records, since they are approved at a public hearing.

Once a subdivision map is submitted for review, it seems to be a work product in progress, not a fully public document until submitted for approval by the local agency. Even then, it isn't until it is approved and filed with the County Recorder that it becomes a public document.

The exception appears to be in a situation where a subpoena duces tecum (produce the documents) is issued for litigation purposes. This would have to be pursuant to proper vetting by opposing counsel for evidentiary purposes. The only time I have dealt with this was after the final map had been filed, and an issue arose about applying certain conditions of approval.

[Scott]

Thanks Warren.

Record of Survey submittals and check prints in particular.

[Warren Smith]

Ah - pursuant to the PLSA, not the SMA.

My sense is that it involves a record of a survey performed, and misspellings and suggestions to add notes relating to boundary establishment are part of the examination for compliance with minimum standards. Check prints are based on the submittal of a draft document. If a Public Records Act request is made, it may have a reasonable basis for non compliance until finalized. There may be a statute in the Code of Civil Procedure relating to this, but I have not had to field such a request to date.

There is a provision in 8762 (d)(2) which obligates the surveyor performing field work to provide specific details of a survey in progress to the County Surveyor when informed that another survey is being performed at [or near] the location in question. This is more along the lines of the discovery of tagged monuments found with no filed map (yet).

[LS_8750]

See link below for Government Code definition of "Public Records":

https://leginfo.legislature.ca.gov/face ... m=7920.530

The government in my experience produces whatever they have in their file when I submit a PRA request.
It seems that attorneys sometimes tend to get a few extra docs when they submit the PRA request.

[DWoolley]

Are submittals & check prints public records?

Yes.

I/we have went around and around with agencies that think they can withhold land surveying documents. If some agency ne'er-do-well tries to deny the requester land surveying records go straight to the city attorney. Do not waste your time listening to a public works person tell you how the law works, it is annoying. We have had one city attorney try to flop around - the second request straighten it out.

Also, do not fall for timelines that fall outside of the statutory requirements or the nonsense concerning outlandish copying costs. If anyone asks you why you want the records, tell them to pound sand.

DWoolley

[Sample first paragraph for a formal request and other citations on cost and time. Do not send it as an email. Write a formal letter and submit it with an email - more professional, less donk.]

Pursuant to the State of California Public Records Act, California Government Code §§ 6250-6276.48, I hereby request the following records be produced by the City of XXXX (“You”) to the XXXXX (“XXXX” or “we”) within the timeframes provided by statute:

1. [requested records. The more specific the better]
2. [additional request]

[A and B were specific to my request]

C. Exempt Portion of Document.

An exempt part of any document does not justify withholding the whole document. California Government Code § 6253(a) (stating that any non-exempt (public) part of a record must be made available after any exempt information has been redacted).

D. Copying Fees for Record Production.

Pursuant to California Government Code § 6253(b):

“Except with respect to public records exempt from disclosure by express provisions of law, each state or local agency, upon a request for a copy of records that reasonably describes an identifiable record or records, shall make the records promptly available to any person upon payment of fees covering direct costs of duplication, or a statutory fee if applicable.” [emphasis added]

The California Public Records Act provisions allowing an agency to charge a fee covering “direct cost of duplication” only allows the agency to recover costs of copying documents. North County Parents Organization for Children with Special Needs v. Department of Education (1994) 23 Cal. App. 4th 144, 146. “Direct costs” do not include additional tasks necessarily associated with the retrieval, inspection and handling of the file from which the copy is extracted. Id. See also 55 Cal. Jur. 3d, Records and Recording Laws § 12 (2015) stating:

“The amount chargeable by the department for furnishing the copies is the cost of copying them, and any “indirect” costs charged by the department are excluded.” [emphasis added]

Additionally, even if You have a resolution regarding general copy charges at a higher rate, only direct costs of duplication are allowed in the case of a public records request (as opposed to other copying charges) pursuant to California Government Code § 6253(b).

“The preemption doctrine prohibits a city or county from making ordinances and regulations in conflict with general state laws.”

45 Cal. Jur. 3d Municipalities § 244 (citing Harrahill v. City of Monrovia (2002) 104 Cal. App. 4th 761). See also California Const. Art. 11, § 7. These charges are typically $.10 per copy.

E. Statutory Time Frames for Production.

Responsive documents will be due ten (10) days from receipt of this request pursuant to California Government Code § 6253 and California Labor Code § 1776. If, for any reason, You choose to deny this request, please state the reason for the denial within five (5) business days and provide XXXXX the name of the person with whom we may file an appeal.

If You have any questions about these requests or your responsibility to respond, I urge You to speak with your legal counsel for clarification. Additionally, please feel free to email me at XXXXXXX regarding this process. If possible, I ask that You email me rather than calling so that I can keep track of all correspondence for each request.

To reduce the usage of paper, I prefer that You provide the documents in electronic full size formats, preferably PDF files wherever possible. If possible, please email the files to XXXXXXX@XXXXX.com.

[Ric7308]

Are submittals & check prints public records?

Yes.

I/we have went around and around with agencies that think they can withhold land surveying documents. If some agency ne'er-do-well tries to deny the requester land surveying records go straight to the city attorney. Do not waste your time listening to a public works person tell you how the law works, it is annoying. We have had one city attorney try to flop around - the second request straighten it out.

Also, do not fall for timelines that fall outside of the statutory requirements or the nonsense concerning outlandish copying costs. If anyone asks you why you want the records, tell them to pound sand.

DWoolley

Maybe it was just you being general in your response (which I understand), but why would anyone be making a PRA to a City for a Record of Survey when a city does not possess the authority to require an RS or review an RS or even have a non-filed one in their possession?

Generally speaking, I agree with Dave, any documents pursuant to an RS or CR submitted to a county is subject to release as a public record. Would be interesting to see if a county counsel has ever disagreed with that and been proven correct.

[DWoolley]

Maybe it was just you being general in your response (which I understand), but why would anyone be making a PRA to a City for a Record of Survey when a city does not possess the authority to require an RS or review an RS or even have a non-filed one in their possession?

Generally speaking, I agree with Dave, any documents pursuant to an RS or CR submitted to a county is subject to release as a public record. Would be interesting to see if a county counsel has ever disagreed with that and been proven correct.

Ric7308:

Correct, a land surveyor wouldn't request a record of survey or corner record from a city. I grabbed a body of the first letter I found.

Same/similar letter has went through several counties, most notably San Francisco. That was a bit of a dogfight that rolled out into the streets. The City/County hired outside counsel to fight it. They kicked a bit, but ultimately it was little more than posturing and a delaying tactic.

Also, I recommend you do not send the first request letter with all of the citations concerning time and costs. First paragraph and specific request is usually sufficient. Most folks will simply comply with the request. The first letter being to legalish may prompt sending it to counsel for fear of incorrectly responding and this may drag out the request.

If someone runs into a real problem getting documents, email me and I will try to provide you with the required correspondence with citations.

Keep in mind, getting building plans is a different animal.

DWoolley

[David Kendall]

If someone runs into a real problem getting documents, email me and I will try to provide you with the required correspondence with citations.

Thank you for the information. This is very helpful! I have been previously stonewalled trying to acquire survey records needed to establish ROW boundaries from our illustrious State of California DOT, even after filing the PRA request. Have you had any luck with them?

The part you mentioned about requesting specific records seems to be critical.

The response I received was "your request is overbroad" <click> then I never heard from them again, even when I tried to email more specific data regarding my particular area of interest.

I never tried the same request a second time, it was for a record of survey boundary so I filed the map with a note describing my efforts and moved on