Definitions
Purpose
Examples of Records
Available to the Public
Records Exempt from Disclosure
Procedure
Requesting Copies of Records
Assistance
Provided to Requestors
Response Time
Exempt Records and Trade
Secrets
Trade Secret Document Provided Pursuant to
AB 2588, the "Air Toxics Hot Spots" Act
Subpoenas
Requests for
Access to Inspect Specific Files
Fees
Responsibilities
Public Records Unit
Organizational Units
in Custody of Records
Records Management Unit
District Prosecutor
District Counsel
District's Library
Public Information Center
I. DEFINITIONS
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"District" means the South Coast Air Quality Management District or any
employee authorized to act on its behalf.
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"Person" includes any natural person, corporation, partnership, limited
liability company, firm, or association.
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"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.
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"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.
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"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.
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"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
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All air or other pollution monitoring data, including data compiled from
stationary sources. [Gov. Code Sec. 6254.7(b)].
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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)].
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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)].
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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.)
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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)].
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District employment contracts. [Gov. Code Sec. 6254.8].
Return to top
IV. RECORDS EXEMPT FROM DISCLOSURE
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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)].
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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)].
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Personnel, medical, or similar files, the disclosure of which would
constitute an unwarranted invasion of personal privacy. [Gov. Code Sec.
6254(c)].
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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)].
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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].
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Test questions, scoring keys, and other examination data related to
examination for employment or academic examination. [Gov. Code Sec. 6254(g)].
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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)].
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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)].
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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)].
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Confidential communications between the District and its attorneys. [Ev.
Code Sec. 954].
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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.
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Records which relate to Grand Jury testimony.
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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;
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(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
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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." |
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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)].
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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)].
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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]
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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.
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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
- 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.
Return to top
- 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.
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(2) |
Describe the information technology and physical location in which the
records exist.
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(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 |
- 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
- 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.):
- the extent to which the information is known outside of the person's
business;
- the extent to which it is known by employees and others involved in the
person's business;
- the extent of measures taken by the person to guard the secrecy of the
information;
- the value of the information to the person's business and to the person's
competitors;
- the amount of effort or money expended by the person in developing the
information; and
- 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
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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
- 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
- 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
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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.
Return to top
- 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
- 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:
- Receiving, logging, and tracking all requests for public records;
- 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;
- Assisting the public in understanding what information is available, and
what must be done to obtain access to, or copies of, public records;
- 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;
- Following the procedures outlined above dealing with trade secrets if a
record has been identified as a trade secret or appears to be confidential;
- Providing the necessary notices and public records within the appropriate
period of time as outlined in these guidelines;
- Ensuring that all records are safeguarded while in the possession of the
office in charge of Public Records Requests;
- Making sure that all originals of records are returned to the appropriate
organizational units as soon as possible;
- Ensuring that requests from the media are coordinated with the Media
Office; and
Return to top
- 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
- 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
- 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.
Return to top
- 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
- 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
- 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.
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