By; Abigail Ellerman, Associate, Richards, Watson & Gershon.
The California Public Records Act (“CPRA”) does not impose an obligation on a public agency to preserve records it withholds as exempt beyond their otherwise applicable retention period merely because the agency’s justification for withholding may later be challenged in court.
In Gilroy v. Superior Court, the Law Foundation of Silicon Valley submitted a series of CPRA requests to the City of Gilroy after receiving complaints about the destruction of personal property during homeless encampment cleanups. A 2018 request sought “any and all public records constituting, reflecting or relating to the Zero Tolerance Policy regarding the homeless and Quality of Life violations between January 1, 2015 through the present.” The City produced some records but withheld others, asserting various CPRA exemptions. In 2019, the Law Foundation submitted an additional request seeking police department body-worn camera (“bodycam”) recordings. The City denied that request, asserting that the bodycam footage was exempt from disclosure.
The Law Foundation objected and filed a petition for writ of mandate and claims for equitable relief, alleging that the City failed to conduct an adequate search, improperly withheld records, and, with respect to the 2019 request, destroyed responsive records while CPRA requests were pending. The trial court granted partial declaratory relief with respect to the 2018 request, but found no other responsive, nonexempt records to produce. The trial court found no CPRA violations as to the 2019 request and concluded that the CPRA does not impose a record-retention requirement.
The Supreme Court rejected the Law Foundation's argument that the CPRA imposes a retention requirement for records withheld as exempt. The Court held that the CPRA omits any retention obligation, and that its legislative history and the presence of express retention requirements in other statutes demonstrates that no such requirement was intended.
The Court further explained that an agency is not required to preserve withheld records for the purpose of allowing a court to later conduct an independent review of the exemption claim. The Court found no indication that the Legislature intended the CPRA to function as a de facto litigation hold on all withheld documents. It also noted that existing statutes already prohibit public agencies from destroying records in anticipation of litigation. In practical terms, the decision clarifies that once a public entity determines a record is exempt from disclosure under the CPRA, it has no implied duty to retain the record beyond its otherwise applicable retention period merely because a requester might later challenge the withholding in court.
The Supreme Court also held that declaratory relief is available under the CPRA even when the agency has disclosed all responsive, nonexempt records if it would resolve and ongoing dispute regarding the parties’ rights and obligations that is likely to recur and affect future records requests.
While this decision confirms that the CPRA does not impose record-retention requirements, it serves as an important reminder that agencies should carefully follow their own retention policies.
If you have any questions about the CPRA, please contact Abigail Ellerman or your RWG attorney.
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