Do You Really Need to Respond to Public Records Requests? (with F3 Law)

Gretchen Shipley (F3 Law) joined Matthew again, this time to cover a hot topic of conversation among the School PR community: Public Record Act (PRA) requests and Freedom of Information Act (FOIA) requests. You can watch the full video to learn more about various public transparency laws and how they apply to school districts. However, below we outline the questions and topics covered by Matthew and Gretchen in the recent video. 

Before we get started, a quick disclaimer: This is not legal advice. Please work with your local legal team to ensure you’re abiding by all local, state, and federal laws and jurisdictions. Additionally, please note this interview was conducted in May of 2023, and while the information provided was the best available at the time, there may have been updates to legislation or different solutions since the time of this conversation. 

“School districts are doing the public’s business. Writings are the public records and the public has the right to access them.”

—Gretchen Shipley, F3 Law

Matthew Jennings: What happens if a school district does not comply? 
Gretchen Shipley: They are public records, they belong to the public, if you withhold them someone can bring a legal challenge saying you're out of compliance. It also could result in a court order saying you need to supply them and pay the other clients attorney’s fees. The idea is it’s a requirement- understandably, school districts have a lot going on and may miss it unintentionally, but it is important to stay on top of these requests.

M.J: How can we put practices in place that make it easier/more manageable to respond?
G.S: Some of these laws were put into place before modern technology  and the law doesn’t necessarily refer to emails, but were written instead with physical records and printed documents  in mind. Managing emails are voluminous, but emails and computers allow for searchable terms—a silver lining. Also having an easier opportunity to search records electronically, you can also agree upon search terms with the requester. 

“A school district has an affirmative duty to help them even understand what they're asking for.”

—Gretchen Shipley

M.J: What if we don't understand what a requester is asking for? What is the obligation?
G.S: Don't ignore it! There are definitely strategies to better understand, but the obligation is you have to help them frame the request. 

M.J: What happens if the search provides a large amount of requests?
G.S: You have to use the perspective of “what is reasonable in the eyes of the law?” Ask what is reasonable when it comes to dedicating staff time to complete this search and review the records that are populated in the search. Many school districts will take what time they need and are willing to defend that in a court of law.

• Example: It may not be reasonable to obtain 100,000 records in 30 days, due to staffing and resources, it may take 6 months.
  

M.J: Are personal devices still subject to records requests? What if someone is doing the public’s business on a personal device?
G.S: There is a court case, Smith vs. the City, that you can review but you cannot avoid the public records act by doing it on text or personal email—if you are doing the district’s business, it is the public’s business, regardless of what account or device you are using.

M.J.: What is the timeline obligation for responding? 
G.S: That is one of the easiest ways for a school district to get tripped up! The law in California says it is 10-20 days. You at least have to let them know you have responsive records in that time frame—you do not have to produce them in those 10 days, but you at least have to say, we have responsive records, we will produce any non-privileged documents in a reasonable time frame.

M.J: Do I really have to comply?
G.S:

M.J: Can a district charge for records?
G.S: This can vary state to state, but the general rule is you can charge for the copies.  This law was written when you paid for copying machines. At the end of the day it comes down to, “What is a reasonable rate to charge per copy?” Typically it is about 25 cents per page. What you cannot charge for is staff’s time. The time it takes to go through all of the records, redact them, or work with legal counsel.

• Tip: this can be a strategy to help alleviate over broad requests or requests that yield an exorbitant amount of results- let the requester know upfront that “okay, this will be 25c per page- that might change their mind.

M.J: How do you feel about using the redaction tool in PDF format?
G.S: Using the PDF redaction tool is a great tool for redaction and one of the ways to manage numerous or voluminous PRA requests. Alternatively, there is software out there that automatically finds things like duplicate information, sensitive information, email chain bouncing back and forth and makes it more efficient to review, redact, and even produce records. It may be an additional cost or service, but software management for record production is out there and is a tool that is available.

M.J: What do you redact?
G.S:  General rule of thumb is that this is the public’s business, public records. A district record is defined as a student record, personnel record, financial record, medical record—essentially anything a school district has to maintain. But a lot of that contains private, privileged information. So that is where a school district is in a really difficult position, they want to protect privacy/private information because once you make that information public, it does not just go to the requestor, it is made public. On the other hand though, it is the public’s business so you have an obligation to produce it. 

• In CA, there are 78 different exemptions and privileges that apply to when you can redact something,
  so it takes going through the responsive records, seeing what is privileged information, then seeing what needs to be pulled altogether versus what can be redacted.
• Also it is recommended to keep notes of why you are pulling it, because if it gets challenged, they’re going to ask why you pulled it. Then you can cite that exemption—but six months down the road, you probably won’t remember why you pulled it. 

M.J: How can school districts keep track of records requests?
G.S: School districts are so busy, it is important that it is tracked, it is really important, especially since school districts could be juggling 20-30 of these at one time. 

• Additional note: F3 uses a spreadsheet with the following columns
  • When did the request come in?
  • What is your deadline to provide the initial response?
  • What date did you provide the initial response?
  • What date you said you would produce records / reasonable date?
  • Narrowing, providing search terms- should be noted
  • What was requested, what terms and dates were agreed upon
    

M.J: How can requests come in?
G.S: That answer is very broadly construed and the law is construed in favor of the requestor—they are, after all, in place to promote transparency. Technically “any written request for records” is a public records request. If school districts have a process in place, school district staff can direct the requester there. It is great to have a system in place, especially for those moments when it is not clear or when the request comes on a cocktail napkin. Most of the time, public records requests would come into the district office, to a specific person, but notate it on your website. Train your school sites and funnel the requests into the district office. 

M.J: What if a district is apprehensive about adding records request information to their website?  
G.S: Err on the side of caution, it will make it more efficient to receive and process these requests. My job as a lawyer is to reduce the likelihood of legal liability and help mitigate damages. While I do not want to encourage more requests, I also does not want someone to drop the ball, then be held legally accountable and get sued over it because someone didn't follow through because they could not figure out your process. It is a double edged sword—but these requests come in regardless, may as well be ready .

M.J: What kind of records does a school district need to keep?
G.S: 

M.J: What about emails? Does every email need to be kept?
G.S: It’s not the form of the document, it’s the substance. An email by itself is not necessarily a record that needs to be maintained forever, school districts auto purge email they don’t keep them all. In CA and federally, there is no magic number of how long records need to be kept, but a good idea is to keep it for at least one school year in case it is relevant to a records request. 

If an email concerns student discipline matters, maybe it could be evidence in a personnel case—they would be put in the student file. An email can become a maintained, permanent file, but in and of itself, it isn’t. Most schools have protocols, policies, in place that educate staff on things like “When is it you have to take an email and save it or forward it so it can be maintained?” Everything else is not an official record. 

• To clarify: If a district is in possession of  a record  and still maintaining it when it is requested, it is a responsive record and needs to be provided. 

M.J: Should districts have public policy on when the records will be purged?
G.S: There is a code of regulations that specifies when certain types of records need to be kept, and for how long. School districts should also have administrative regulation explaining what you do with everything else that does not fall under that category. Professional development outlining examples of what action should be taken and when. Each school district has to come up with their own best practices, but training is essential to ensure not only everyone knows the process, but they know where to turn with questions as well. 

• Another note Matthew had about training: Staff should know that everything they put in writing could potentially become a disclosable public record. Not to discourage doing the public’s business on public platforms, but it is to say, be intentional about what you are saying and how you use district tools.
• “Pause before you post” should apply to social media and emails. 

Matthew sat down with Gretchen recently to also discuss the law behind school photos and how to navigate social media, legally, as a school district. You can also watch all 3 interviews via our Youtube Channel, or by checking out our mini-series with F3!  

For now, we’ll leave you with what Gretchen calls, a little “insider baseball” tip about record request compliance.