UPDATE, March 31, 2023: Lopez has yet again threatened fees for a PRA request. The “Fortinet Expenditure PRA” just received its extension letter, and that extension letter dictated that FM Amy Parker would be responsible for $0.20/page fees on any document copied in the process of finding and disclosing the record. This potentially includes records not given to the OIC. FM Parker has stated in a follow-up that, should copying/scanning be necessary, she will provide her own equipment for doing so; no response has been received yet. This is still developing; more updates may be posted in the future.
This story was originally published on March 26, 2023.
CERRITOS, California. (OIC) Executive Vice President/Assistant Superintendent of Business Services Felipe Lopez has broken the California Public Records Act by threatening unnecessary/illegal costs for certain records requests. So far, two cases have been discovered, both in Public Records Act requests made by Founding Member Amy Parker.
The first case involved the request that generated FM Parker’s network log files, which proved that Cerritos College does indeed keep logs of what its students visit based on categories of websites. In response to this request, Lopez wrote:
Additionally, an individual person seeking information about themselves is not in the public interest. Any further requests of this sort will be subject to costs.
Executive Vice President/Assistant Superintendent of Business Services Felipe Lopez
This threat to charge for future requests is NOT legal under the Public Records Act. Only three types of fees can be assessed:
- Direct costs of physical duplication: these are electronic records, so this does not apply.
- Statutory fees: there are no applicable statutory fees here.
- Electronic record construction: not applicable, as there is not a program being written or data compilation/extraction occurring.
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. Upon request, an exact copy shall be provided unless impracticable to do so.
CA GOV sec. 7922.530(a), fmr. 6253(b)
(a) The cost of duplication of an electronic record pursuant to paragraph (2) of subdivision (b) of Section 7922.570 shall be limited to the direct cost of producing a copy of a record in an electronic format. (b) Notwithstanding subdivision (a), the requester shall bear the cost of producing a copy of the record, including the cost to construct a record, and the cost of programming and computer services necessary to produce a copy of the record when either of the following applies: (1) In order to comply with subdivisions (a) and (b) of Section 7922.570, the public agency would be required to produce a copy of an electronic record and the record is one that is produced only at otherwise regularly scheduled intervals. (2) The request would require data compilation, extraction, or programming to produce the record.
CA GOV sec. 7922.575, fmr. 6253.9(a)(2)(2nd sen.)-6253.9(b)
There is no requirement that the data be in the “public interest”. In fact, quite the opposite! The state declares that public records access is a key right of everyone, which negates the idea that the particular data requested (if it is indeed a public record) must be in the public interest to be disclosed.
In enacting this division, the Legislature, mindful of the right of individuals to privacy, finds and declares that access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.
CA GOV sec. 7921.000, fmr. 6250
Of an important note, Lopez did declare that these were indeed public records, subject to disclosure:
The Cerritos Community College District (“District”) has determined that your request identify [sic] public records in the possession of the District. (Government Code section 6253, subsection (c)). The District conducted a research [sic] of your logs between January 24, 2023 – January 31, 2023. The attached logs identified records within our search perimeters.
Executive Vice President/Assistant Superintendent of Business Services Felipe Lopez
As such, this threat of fees – not directly tied to any section of state law in the letter or by statute – could fall awry of another part of state law, as this would be “sell”ing records:
Notwithstanding any other provision of law, no state or local agency shall sell, exchange, furnish, or otherwise provide a public record subject to disclosure pursuant to this division to a private entity in a manner that prevents a state or local agency from providing the record directly pursuant to this division.
CA GOV sec. 7921.010(a), fmr. 6270
This wasn’t the only case, though. On the still-pending FPC PRA, Lopez threatened to charge for documents relating to menstrual products expenditures:
Any documents gathered will be at a cost of $.20 [sic] per page.
Executive Vice President/Assistant Superintendent of Business Services Felipe Lopez
No matter what was meant by “gathered” here, this would not be allowed. The request searched for just a single number – so any “page”s of documents provided would be extras not requested and thus not subject to any costs. The documents are requested electronically, so there’s no applicable physical duplication fees; there also shouldn’t be any electronic duplication or creation fees, as the data should either be collected from copying a number out of a spreadsheet or just uploading copies of documents. (If they tried to claim expenses for scanning, they would fall to another provision of the Public Records Act:)
A requester who inspects a disclosable record on the premises of the agency has the right to use the requester’s equipment on those premises, without being charged any fees or costs, to photograph or otherwise copy or reproduce the record in a manner that does not require the equipment to make physical contact with the record
CA GOV sec. 7922.530(b), fmr. 6253(d)(1)
There is no applicable statutory fee here, and search fees are not an allowed type of fee under the Public Records Act.
This type of obstruction is illegal under California law – because of foresight by the State Legislature. For individuals, the federal Freedom of Information Act is generally considered unusable because it allows agencies to charge absurd “search fees” for document requests. The Public Records Act does not allow for these search fees – but it appears that Lopez is trying to claim search fees here.
The OIC officially opposes these illegal, unethical, immoral, and potentially corrupt attempts to charge for Public Records Act requests in violation of California state law. We demand an immediate cessation of these practices by the Office of Business Services and by Cerritos College. We also ask that all other governmental agencies in the state of California with similar policies/actions immediately cease and correctly follow the law.