Guidelines for Implementing the
California Public Records Act
(Adopted by the Governing Board May 6, 2005)

I.        DEFINITIONS

1.  "District" means the South Coast Air Quality Management District or any employee authorized to act on its behalf.
    
2.  "Person" includes any natural person, corporation, partnership, limited liability company, firm, or association.
    
3.  "Public Record" includes any writing containing information relating to the conduct of the public's business prepared, owned, used, or retained by the District, regardless of physical form or characteristics.
    
4.  "Writing" means handwriting, typewriting, printing, photostating, photo-graphing, photocopying, transmitting by electronic mail or facsimile, and every other means of recording upon any tangible thing, form of communication or representation, including letters, words, pictures, sounds, or symbols, or  combination thereof, and all papers, maps, magnetic or paper tapes, photographic films and prints, magnetic or punched cards, discs, drums, and any  record thereby created, regardless of the manner in which the record has been stored.
    
5.  "Production Data" means information disclosing the actual quantity of material used to produce an article having commercial value, as well as information disclosing the actual quantity produced.
    
6.  "Emission Data" means measured or calculated concentrations or weights of air contaminants emitted into the ambient air. Data used to calculate emission data are not emission data.  Return to top
    

II.      PURPOSE

The purpose of these Guidelines is to implement the California Public Records Act, commencing at Section 6250 of the Government Code, and other applicable statutes and case law, by setting forth the procedures to be followed when making records available to the public. It is the policy of this District that public records are open to inspection at all times during the District’s office hours. Any reasonably segregable portion of a record shall be made available for inspection after deletion of the portions that are exempted by law. It is also the policy of this District that except for public records exempt from disclosure by express provisions of law, a request for a copy of reasonably-described identifiable records shall be made available with minimal delay to the requesting party. An exact copy shall be provided unless impracticable to do so.  Return to top
 

III.     EXAMPLES OF RECORDS AVAILABLE TO THE PUBLIC

1.  All air or other pollution monitoring data, including data compiled from stationary sources. [Gov. Code Sec. 6254.7(b)].
    
2.  All information, analyses, plans, or specifications that disclose the nature, extent, quantity, or degree of air contaminants or other pollution, which any article, machine, equipment, or other contrivance will produce, which any air pollution control district or any other state or local agency or district requires any applicant to provide before the applicant builds, erects, alters, replaces, operates, sells, rents, or uses such article, machine, equipment, or other contrivance, unless the information is exempt from disclosure by express provision of law. [Gov. Code Secs. 6254.7(a) and (d)].
    
3.  All air pollution emission data, including those emission data which constitute trade secrets as defined in Gov. Code Sec. 6254.7(d). Data used to calculate emission data are not emission data for the purposes of these guidelines, and data which constitute trade secrets and  that are used to calculate emission data are not public records and are not available to the public. [Gov. Code Sec. 6254.7(e)].
    
4.  Permits to operate, permits to construct, permit application forms 400A, supplemental applications to forms 400-A, potential to emit reports, health risk assessments,  site inspection reports, source test reports, asbestos records, emission reduction credit certificates,  new source review balances, and notices of violation. (The inspector’s report and other investigatory material may be withheld until a settlement agreement is reached or the case is concluded.)
    
5.  Data used to calculate the costs of obtaining emission offsets are not public records. If the District issues a permit to construct to an applicant who is required to obtain offsets pursuant to District rules and regulations, the following data are public records: the year the offset transaction occurred; the amount of offsets purchased by pollutant, and the cost of the offsets purchased by pollutant. If the application is denied, the data shall not be a public record. [Gov. Code Sec. 6254.7(f)].
    
6.  District employment contracts. [Gov. Code Sec. 6254.8].  Return to top
    

IV.     RECORDS EXEMPT FROM DISCLOSURE

1.  Preliminary drafts, notes, or interagency or intra-agency memoranda that are not retained by the District in the ordinary course of business, provided that the public interest in withholding those records clearly outweighs the public interest in disclosure. [Gov. Code Sec. 6254(a)].
    
2.  Records pertaining to pending litigation to which the District is a party, or to claims made pursuant to Division 3.6 (commencing with Section 810) of Title 1 of the Government Code, until the pending litigation or claim have been finally adjudicated or otherwise settled. [Gov. Code Sec. 6254(b)].
    
3.  Personnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy. [Gov. Code Sec. 6254(c)].
    
4.  Geological and geophysical data, plant production data, and similar information relating to utility systems development, or market or crop reports, which are obtained in confidence from any person. [Gov. Code Sec. 6254(e)].
    
5.  Records of complaints to, or, investigations conducted by, or for, the District for law enforcement or permit purposes, or any analysis or conclusions of an investigating officer. Notwithstanding the above, the time, substance, and location of all complaints or requests for assistance received by the District and the time and nature of the response thereto, including, to the extent the information regarding the incident is recorded, the time, date, and location of occurrence, the time and date of the report, the factual circumstances surrounding the incident, and the name, age, and current address of the victim of the incident, are public records unless: 1) the disclosure of such information would endanger the safety of a person involved in an investigation; 2) would endanger the successful completion of the investigation or a related investigation [Gov. Code Sec. 6254(f)]; 3) would be an unwarranted invasion of privacy; 4) might identify confidential sources; or 5) would reveal information supplied in confidence. This exemption is inapplicable to requests made by a district attorney. [Gov. Code Sec. 6262].
    
6.  Test questions, scoring keys, and other examination data related to examination for employment or academic examination. [Gov. Code Sec. 6254(g)].
    
7.  The contents of real estate appraisals, engineering or feasibility estimates and evaluations made for or by the state or local agency relative to the acquisition of property, or to prospective public supply and construction contracts, until such time as all of the property has been acquired or all of the contract agreements obtained. However, the law of eminent domain shall not be affected by this provision. [Gov. Code Sec. 6254(h)].
    
8.  Library circulation records kept for the purpose of identifying the borrower of items available in the library, and library and museum materials made or acquired and presented solely for reference or exhibition purposes. [Gov. Code Sec. 6254(j)].
    
9.  Records the disclosure of which is exempted or prohibited pursuant to federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege. [Gov. Code Sec. 6254(k)].
    
10.  Confidential communications between the District and its attorneys. [Ev. Code Sec. 954].
     
11.  Records of documents covered by the attorney work product privilege, or any other judicially recognized privilege, including but not limited to, the deliberative process privilege.
     
12.  Records which relate to Grand Jury testimony.
     
13.  Documents which are privileged under Section 1040 of the Evidence Code which provides:

"(a)	As used in this section, 'official information' means information acquired in confidence by a public employee in the course of his duty and not open, or officially disclosed, to the public prior to the time the claim of privilege is made;
(b)	A public entity has a privilege to refuse to disclose information and to prevent another from disclosing such information, if the privilege is claimed by a person authorized by the public entity to do so; and:

1)

Disclosure is forbidden by an act of the Congress of the United States or a statute of this state; or

2)

Disclosure of the information is against the public interest because there is a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice; but no privilege may be claimed under this paragraph if any person authorized to do so has consented that the information be disclosed in the proceeding. In determining whether disclosure of the information is against the public interest, the interest of the public entity as a party in the outcome of the proceeding may not be considered."

14.  Trade secrets, with the exception of emission data, which may include, but are not limited to, any formula, plan, pattern, process, tool, mechanism, compound, procedure, production data, or compilation of information which is not patented, which is known only to certain individuals within a commercial concern who are using it to fabricate, produce, or compound an article of trade or a service having commercial value, and which gives its user an opportunity to obtain a business advantage over competitors who do not know or use it. [Gov. Code Sec. 6254.7(d)].
     
15.  Computer software, which includes computer mapping systems, computer programs, and computer graphics systems, developed by a state or local agency including the District. [Gov. Code Sec. 6254.9(a) and (b)].
     
16.  Records that relate to volatile organic compounds and chemical substances information received or compiled by an air pollution control officer pursuant to Health and Safety Code Section 42303.2. [Gov. Code Sec. 6254.11]
     
17.  Records in which the District determines that, on the facts of the particular case, the public interest served by not making the record public clearly outweighs the public interest served by disclosure of the record. [Gov. Code Sec. 6255]. The cost and burden to the District may be  relevant factors in determining the public interest in not making the record public.
     
18.  A memorandum submitted to a state body or the District’s Governing Board by its legal counsel pursuant to subdivision (q) of Government Code Section 11126 or 54956.9 until the pending litigation has been fully adjudicated or otherwise settled. The memorandum shall be protected by the attorney work-product privilege until the pending litigation has been finally adjudicated or otherwise settled. [Gov. Code Sec. 6254.25].  Return to top
     

V.      PROCEDURE

1. Requesting Copies of Public Records
   
   All requests for copies of public records  should be made in writing and addressed to the Public Records Unit. A Public Records Request Form is currently available by fax-back service at (909) 396-3700, and on the District’s web page at http://www.aqmd.gov. Select the menu “Contact Us,” followed by the “Public Records” menu. Requests may be sent by facsimile to the Public Records Unit at (909) 396-3330, or you may send by email at PublicRecordsRequest@aqmd.gov. All requests for copies of records  should  reasonably describe an identifiable record. [Gov. Code Sec. 6253].   Reasonable restrictions may be imposed upon general requests for voluminous classes of documents. Copies will be provided unless 1) disclosure would infringe a copyright or trade secret, 2) the records are exempt from disclosure by express provisions of the law, or 3) the volume of requested records would be impracticable for the District’s day-to-day operation. The District shall provide a copy of an electronic record in the format requested if the requested format is one that has been used by the agency to create copies for its own use or for provision to other agencies.   Records held by the District in electronic format may be requested in accordance with provisions specified in Gov. Code Sec. 6253.9. 
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2. Assistance Provided to Requestors
   
   When a member of the public requests to inspect a public record or obtain a copy of a public record, the District, in order to assist the member of the public make a focused and effective request that reasonably describes an identifiable record or records, shall do the following, to the extent reasonable under the circumstances:

(1)	Assist the member of the public to identify records and information that are responsive to the request or to the purpose of the request, if stated.
(2)	Describe the information technology and physical location in which the records exist.
(3)	Provide suggestions for overcoming any practical basis for denying access to the records or information sought. [Gov. Code Sec. 6253.1]  Return to top

3. Response Time
   
   The District shall determine within 10 days from receipt of the public records request if the request, in whole or in part, seeks copies of discloseable public records in the possession of the District. In unusual circumstances, additional time up to 14 days may be warranted. The District shall promptly notify the requestor of its determination and the reasons therefor. [Gov. Code Sec. 6253(c)]. Such notification will include a public records reference number, which should be used in any further correspondence relating to the request. If there is a large amount of material to compile, or if there is a question regarding the status of the requested records, the requestor will be notified by District staff of the approximate time frame involved in filling the request.  Return to top
    
4. Exempt Records and Trade Secrets
   
   Records that are exempt from the Public Records Act will normally not be released. Records claimed by a facility or entity to be trade secrets or otherwise exempt from disclosure will not be immediately released unless the District determines they are clearly public records. Only information claimed to be a trade secret at the time of submittal to the District may be treated as a trade secret. [Masonite Corp. v. County of Mendocino A.Q.M.D., 49 Cal.Rptr.2d 639 (1996)].
   
   The District will mail a notice, by certified mail, to the facility or entity claiming exempt or trade secret status. The facility or entity is responsible for providing its current mailing address to the District. The notice shall include  a request for a detailed and complete justification of the bases for exempt or trade secret status, as defined in Section IV. The facility or entity must make an appointment with Public Records Staff, within 15 calendar days of the date of the letter, to come in and review the records and highlight the portion exempt or containing trade secret. The Public Records Unit Staff will be available to assist the facility or entity with any questions regarding this process. If no justification is timely received, the subject records shall be released as specified herein.
   
   Any justification claiming trade secret status must include a sworn declaration that should address the following six factors (Restatement of Torts Sec. 757.):

1. the extent to which the information is known outside of the person's business;
    
2. the extent to which it is known by employees and others involved in the person's business;
    
3. the extent of measures taken by the person to guard the secrecy of the information;
    
4. the value of the information to the person's business and to the person's competitors;
    
5. the amount of effort or money expended by the person in developing the information; and
    
6. the ease or difficulty with which the information could be properly acquired or duplicated by others.

In addition, any justification must be specific enough so as to identify exactly which  information in a document constitutes a trade secret or is exempt, so that it may be redacted from the  document, with the remaining information to be released. Accordingly,  all documents subject to the request should be reviewed by the facility or entity claiming exempt or trade secret status before submitting its justification to enable it to specifically segregate information contained in those documents that may or may not be released. Failure to so segregate may result in the release of all information.

The District shall evaluate the justification, and any other information at its disposal and shall determine if the justification supports the claim that the material is in fact exempt or is a trade secret under Gov. Code Sec. 6254 and Sec. 6254.7, or otherwise privileged. If the District determines that the claim is supported by the justification  and that the material is exempt or a trade secret, the Public Records Coordinator shall notify the requestor that the data sought is exempt or a trade secret and therefore cannot be released. The requestor shall be advised of  the requestor’s right to bring appropriate legal action to compel disclosure. Any such action should name the facility or entity claiming an exemption from disclosure as a real party in interest.

If the District determines that the claim of exemption or trade secret is not meritorious or is inadequately supported by the evidence, the District shall promptly notify, by certified mail, the facility or entity who claimed exempt or trade secret status that the justification is inadequate, and that the information  will be released after  15 calendar days from the date of  such notice. Such facility or entity shall also be advised of its right to bring appropriate legal action to prevent disclosure, and of its right to further respond. In the event the facility or entity cannot be reached at its last listed address with the District, the information shall be released after 15 calendar days  from the date of such notice. Any legal action brought by the facility or entity should name the requestor as a real party in interest.

The above procedures regarding exempt records and trade secrets may not apply to requests made by other governmental agencies for purposes of carrying out their official responsibilities, if such agencies agree to treat the disclosed material as confidential pursuant to a written confidentiality agreement with the District. The confidentiality agreement shall designate those persons authorized by the requesting governmental agency to obtain the information. [Gov. Code Sec. 6254.5].

The above procedures are also inapplicable if the requestor and the facility or entity enters into an agreement waiving any objections to the District's release of the requested information. A signed copy of the agreement must be provided to the District.  Return to top
 

5. Trade Secret Document Provided Pursuant to AB 2588, the “Air Toxics Hot Spots” Act
   
   If an operator believes that any information required in the facility diagram specified pursuant to division (b) of Health and Safety Code Section 44342 involves the release of a trade secret, the operator shall nevertheless make the disclosure to the District, and shall notify the District in writing of that belief in the report. [Health & Safety Code Sec. 44346(a)]. Subject to this section, the District shall protect from disclosure any trade secret designated as such by the operator, if that trade secret is not a public record. [Health & Safety Code Sec. 44346(b)]. All information collected pursuant to Chapter 3 of the Air Toxics Hot Spots Act constitute public records, except data used to calculate emissions data required in the facility diagram may constitute a trade secret. [Masonite Corp. v. Superior Court, 31 Cal.Rptr.2d 173 (1994)].
   
   Upon receipt of a request for the release of information to the public which includes information which the operator has notified the District is a trade secret and which is not a public record, the following procedure applies:
    

   (1)

   The District shall notify the operator of the request in writing by certified mail, return receipt requested.

   (2)

   The District shall release the information to the public, but not earlier than 30 days after the date of mailing the notice of the request for information, unless prior to the expiration of the 30-day period, the operator obtains an action in an appropriate court for a declaratory judgment that the information is subject to protection under this section or for a preliminary injunction prohibiting disclosure of the information to the public and promptly notifies the District of that action. [Health and Safety Code Sec. 44346(c)]. This section does not permit an operator to refuse to disclose the information required pursuant to this part to the District. [Health & Safety Code Sec. 44346(d)].

Any information determined by a court to be a trade secret, and not a public record pursuant to this section, shall not be disclosed to anyone except an officer or employee of the District, the state, or the United States, in connection with the official duties of that officer or employee under any law for the protection of health, or to contractors with the District or the state and its employees if, in the opinion of the District or the state, disclosure is necessary and required for the satisfactory performance of a contract, for performance of work, or to protect the health and safety of the employees of the contractor. [Health and Safety Code Sec. 44346(e)].  Return to top

6. Subpoenas
   
   The Public Records Act is not applicable in situations where subpoenas have been issued to the District for document production. Any such subpoenas shall be referred to the District’s Custodian of Records, or District Counsel's Office, unless otherwise directed by that office.  Return to top
    
7. Requests for Access to Inspect Specific Files
   
   It is the policy of the District that all records open for public inspection shall be made available with the least possible delay.
   
   Public records are open to inspection at all times during the office hours of the District, and every  person has a right to inspect any public record as defined herein. To permit sufficient time for the District to compile the records for review, an appointment to view the records should be made by the requestor. A request to inspect public records in the custody of the District  should be in writing and  should describe the records with sufficient specificity to enable the District to identify the information sought.
   
   Records that are exempt from the Public Records Act and records claimed to contain trade secrets will be handled in the manner described in Subsection D. If a delay occurs, the requestor will be notified of the reasons and offered the option of either viewing that portion of the record that is available, or waiting until the complete record is available.
   
   The Public Records Coordinator, or a designated representative, will be available to assist the requestor during the inspection. The requestor will be provided with the records and a work space. The Public Records Coordinator, or the designated representative, will ensure that no records are removed or altered. If the requestor asks for photocopies of certain records, the Public Records Unit will arrange for the copies to be made and mailed within 10 business days. The  requirements set forth in Section VI regarding fees will be applicable.
   
   The requestor may arrange for a private copying service to come to the District to photocopy the records after an appointment has been made with the Public Records Unit Staff. The Public Records Unit Staff, or a designated representative, will monitor the copying process to ensure that no records are removed or altered.   Return to top
    

VI.     FEES

1.  The Public Records Act requires "payment of fees covering direct costs of duplication, or a statutory fee, if applicable." [Gov. Code Sec. 6253(b)]. In addition, when records are requested in electronic format, the requestor shall bear the cost of producing a copy of the record, including the cost to construct the record and the cost of programming and computer services necessary to produce a copy of the record when either of the following applies: (1) the District would be required to produce a coy of an electronic record and the record is one that is produced only at otherwise regularly scheduled intervals, or (2) the request would require data compilation, extraction, or programming to produce the record. [Gov. Code Sec. 6253.9(b)] The Public Records Unit will provide an invoice for charges due along with the copied records. These charges are due and payable upon receipt of the invoice and the copied records. Non-payment of invoices could result in a requirement that requests for records be pre-paid in person before releasing the requested documents. 
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2. Fees for Copies of Public Records
   
   The Finance Division shall set the rate to be charged for the direct cost of duplication.  There is no charge for copies totaling less than 10 pages. For 10 or more pages, the photocopying fee is  15 cents per page for all pages, including the first 9 pages. Paper copies generated from computer database programs, diskette or microfiche are 15 cents per page. There is no charge for copied CD’s or copied diskettes. Copied audio tapes are $5.00 each and copied microfiche are $8.00 each.
   
   The transfer of gathered electronic records onto CD or diskette typically costs $10.00 each. Fees for programming and computer services, however, will be based on the actual cost of the staff performing the work. The level of staff needed to fulfill the request for electronic information could vary depending on the intricacies and complexity of the request. For significant efforts, the requestor may be required to pay a portion or all of these costs in advance of commencing the work. The requestor may submit a request for a waiver or a reduction of fees incurred, which will be considered by the District.  Return to top
    

VII.   RESPONSIBILITIES

1. Public Records Unit
   
   The Executive Officer will designate the office that will have primary responsibility for coordinating the District's compliance with the California Public Records Act. That responsibility includes:

1. Receiving, logging, and tracking all requests for public records;
    
2. Determining the possible location of the records, and routing copies of requests to the appropriate organizational unit to obtain copies of records requested and following up to meet return date deadlines;
    
3. Assisting the public in understanding what information is available, and what must be done to obtain access to, or copies of, public records;
    
4. Ensuring that the District Counsel’s Office reviews any material subject to confidentiality of data or trade secret status and provides their comments as to whether the requested records may be released;
    
5. Following  the procedures outlined above dealing with trade secrets if a record has been identified as a trade secret or appears to be confidential;
    
6. Providing the necessary notices and public records within the appropriate period of time as outlined in these guidelines;
    
7. Ensuring that all records are safeguarded while in the possession of the office in charge of Public Records Requests;
    
8. Making sure that all originals of records are returned to the appropriate organizational units as soon as possible;
    
9. Ensuring that requests from the media are coordinated with the Media Office; and
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2. Organizational Units in Custody of Records
   
   The District’s organizational units are custodians of their own records created as a result of their activities, whether or not they are storing the records. The custodial units will be responsible for retrieving, gathering, and copying the records requested of them. These records are to be reviewed by the organizational unit manager for information that is a trade secret or otherwise exempt from disclosure. Such information, if reasonably segregable, shall be redacted under the guidance of the District Counsel's Office.
   
   The custodial unit must determine if they are, or are not, in possession of the records requested and notify the Public Records Unit so they may comply with the response time specified in Section V.B of these guidelines [Gov. Code Sec. 6253(c)]. If there are records in response to the request, the properly reviewed records will be promptly provided to the Public Records Unit.   Return to top
   
    
3. Records Management Unit
   
   The Records Management Unit of the District is not considered to be the custodian of records. Any requested records in its possession will be provided to the Public Records Unit, who will send the requested records to the custodial unit to review for confidentiality.   Return to top
   
    
4. District Prosecutor
   
   Requests for records pertaining to documents  that may not be released due to pending litigation, pending settlement or conclusion of Notices of Violation, or pending settlement or conclusion of civil cases, will be provided to the District Prosecutor’s Office (DPO). DPO will be responsible for the timely identification and review of those records and will determine which records may be released.  
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5. District Counsel
   
   The District Counsel's Office (DCO) is also responsible for providing legal guidance in determining which records may be released under the Public Records Act. The Public Records Unit shall provide DCO with those documents that are alleged to be trade secrets or exempt from the Public Records Act. In addition, the Public Records Unit will immediately provide DCO with all correspondence relating to the justification of exempt or trade secret status. The Public Records Unit will then be responsible for maintaining in a separate file those records which may not be released, and for releasing the remaining records pursuant to these guidelines, in compliance with the California Public Records Act.   Return to top
   
    
6. District’s Library
   
   The District’s Library is not considered to be a custodian of records. The Library provides reference and circulation services to District staff and the public. The Library collection includes technical air quality books and periodicals, specialized training videos and materials, 35 mm slides of air quality subject matter, and all official District publications in either printed or microfilmed formats. Because the Library collection is unclassified and available to the public directly, those materials will not require a Public Records Act request.   Return to top
   
    
7. Public Information Center
   
   The Public Information Center (PIC) of the Public Affairs organizational unit is not considered to be a custodian of records. The PIC provides the District’s published brochures, pamphlets, Rules and Regulations, some subscription items, and information in printed formats. Because the PIC material is available to the public directly, those materials will not require a Public Records Act request.  Return to top
    

Return to the Public Records Request page.