Is Not Turning Over Public Records Illegal?

November 18, 2010

Is Not Turning Over Public Records Illegal?
Liam Dillon
Voice of San Diego

This week, I've been through a rigmarole with San Diego City Council President Ben Hueso, his staff and council administrators about a now-withdrawn request Hueso made for $11,000 in employee bonuses.

Hueso asked Mayor Jerry Sanders' office in writing for the bonuses. But when I made a California Public Records Act request for any documents requesting additional pay in the City Council offices, Council Administration Director Lori Witzel told me that none existed. Her denial came even though she had written a cover memo to Hueso's bonus request.

The California Public Records Act requires disclosure of all government documents aside from a few limited exemptions.

I wanted to know if there was any penalty for not following the state public records law.

There's no criminal penalty for not turning over information requested under the Public Records Act, said Terry Francke, head of watchdog organization Californians Aware. Civil penalties, Francke said, only would apply if the denial of a record's existence would leave the requestor defenseless against serious harm. An example: not turning over a document that could have been used to stop a foreclosure on the requester's home.

"Otherwise, lying to the public about the existence of a government record may be immoral or unethical, but it has never been made illegal," Francke said.

For the record, both Witzel and Hueso's spokeswoman Michelle Ganon told me that they didn't believe that the bonus documents were subject to my request. You can judge for yourself. Here's my request. Here's the response. Here are the bonus documents.

It is, however, a misdemeanor crime under the California Government Code for a public official to knowingly make false statements in writing to the public. But Francke said he's seen "no indication that it's ever been used to punish such informal communications as these."

Francke added that Californians Aware sponsored legislation in 2006 that would have made dishonest responses to public records requests subject to substantial fines, but the bill was vetoed.