Public Records Protection And Recovery - - CA Government

Section § 6204

This law explains the procedures for recovering public records if they are found to be held unlawfully by others. The Secretary of State, consulting the Chief of Archives, can demand the return of such records within 20 days or ask for a written explanation if the holder believes the records aren't state property. The demand must specify the records and warn of possible legal action for non-compliance. Notices have to be sent via certified mail. If records are returned, the state must provide a certified copy of them upon request.

(a) For purposes of this chapter, the following definitions shall apply:

(1) “Archivist” means the Chief of Archives, as specified in Section 12227.

(2) “Record” has the same meaning as “public records” is defined in Section 7920.530, and includes, but is not limited to, any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by a state or local agency regardless of physical form or characteristics.

(3) “Secretary” means the Secretary of State.

(b) Whenever the secretary, in consultation with the archivist, has reasonable grounds to believe that a record belonging to the state or a local agency is in the possession of a person, organization, or institution not authorized by law to possess that record, the secretary may issue a written notice demanding that person, organization, or institution to do either of the following within 20 calendar days of receiving the notice:

(1) Return the record to the appropriate state or local agency.

(2) Respond in writing and declare why the record does not belong to the state or a local agency.

(c) The notice and demand issued pursuant to subdivision (b) shall identify the record claimed to belong to the state or local agency with reasonable specificity, and shall state that the secretary is authorized to take legal action to recover the record if the person, organization, or institution fails to respond in writing within the required time or does not adequately demonstrate that the record does not belong to the state or a local agency.

(d) The secretary shall send the notice and demand specified in subdivision (b) by certified or registered mail, return receipt requested.

(e) When a record is returned pursuant to paragraph (1) of subdivision (b), upon the request of the person, organization, or institution that returned the record, the secretary or a local agency that receives the record shall issue to that person, organization, or institution a copy or digital image of the record, which shall be certified as a true copy of the record that was returned to the state or local agency, and dated on the same day the record was returned.

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(Amended by Stats. 2021, Ch. 615, Sec. 141. (AB 474) Effective January 1, 2022. Operative January 1, 2023, pursuant to Section 463 of Stats. 2021, Ch. 615.)

Section § 6204.1

If someone receives a written demand from the state to return a record and they don't comply, the state can take them to court to get the record back. The court has the power to order that the record be returned to the appropriate official.

Before making a decision, the court can ensure the record is not destroyed or altered by ordering its temporary custody. If necessary, the record can be made available to the public under existing public records laws.

(a) If a person, organization, or institution that receives a written notice and demand from the secretary pursuant to Section 6204 does not deliver the described record, does not respond to the notice and demand within the required time, or does not adequately demonstrate that the record does not belong to the state or a local agency, the secretary may ask the Attorney General to petition the superior court in the county in which the records are located for an order requiring the return of the record.

(b) After a hearing, and upon a finding that the specified record is in the possession of a person, organization, or institution not authorized by law to possess the record, the court shall order the record to be delivered to the archivist or other government official designated by the court.

(c) The court may issue any order necessary to protect the record from destruction, alteration, transfer, conveyance, or alienation by the person, organization, or institution in possession of the record, and may order the record to be surrendered into the custody of the archivist pending the court’s decision on the petition. The court may order the record to be available for public access under a request made pursuant to the California Public Records Act (Division 10 (commencing with Section 7920.000)).

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(Amended by Stats. 2021, Ch. 615, Sec. 142. (AB 474) Effective January 1, 2022. Operative January 1, 2023, pursuant to Section 463 of Stats. 2021, Ch. 615.)

Section § 6204.2

If a local government agency thinks someone has their records without permission, they can either ask a higher authority to help get them back or take action on their own. They can also get the local prosecutor involved if needed.

If further action is necessary, the court can order the person to return the records if they shouldn't have them. The court can also protect the records from being damaged or lost while deciding if they need to be returned. Additionally, the public might be allowed to access these records if the law permits.

(a) If a local agency has reasonable grounds to believe that a record belonging to that local agency is in the possession of a person, organization, or institution not authorized by law to possess the record, it may request the secretary to act on its behalf pursuant to the procedures specified in Sections 6204 and 6204.1, or undertake on its own behalf the same procedure available to the secretary under those sections, subject to subdivisions (b), (c), and (d).

(b) If a person, organization, or institution that receives a written notice and demand from a local agency issued pursuant to this section does not deliver the described record, does not respond to the notice and demand within the required time, or does not adequately demonstrate that the record does not belong to the local agency, the local agency may request the county district attorney or, where applicable, the city attorney, to petition the superior court in the county in which the record is located for an order requiring the return of the record.

(c) After a hearing, and upon a finding that a specified record is in the possession of a person, organization, or institution not authorized by law to possess the record, the court shall order the record to be delivered to the local agency or a government official designated by the court.

(d) The court may issue any order necessary to protect the record from destruction, alteration, transfer, conveyance, or alienation by the person, organization, or institution in possession of the record, and may order the record to be surrendered into the custody of the local agency pending the court’s decision on the petition. The court may order the record to be available for public access under a request made pursuant to the California Public Records Act (Division 10 (commencing with Section 7920.000)).

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(Amended by Stats. 2021, Ch. 615, Sec. 143. (AB 474) Effective January 1, 2022. Operative January 1, 2023, pursuant to Section 463 of Stats. 2021, Ch. 615.)

Section § 6204.3

This law states that if an organization holds historical records, it doesn't have to follow certain laws about public records as long as it follows specific guidelines. First, it must manage and preserve the records according to the Society of American Archivists' standards. Second, it must allow records to be inspected just as public agencies do, under the same laws.

If an organization doesn't let the public inspect records when they should be allowed, officials will contact them to fix the issue. If the organization still refuses, the state may take steps to recover those records to ensure they're properly accessible.

(a) Notwithstanding any other provision of this chapter, an organization or institution having physical custody of a record shall be exempt from Sections 6204 to 6204.2, inclusive, if the organization or institution meets both of the following requirements:

(1) It follows professional practices recommended by the Society of American Archivists, as used by the archivist, for the management, care, and preservation of historical records.

(2) It requires that all records it receives or maintains are subject to inspection to the same extent that the records would be subject to inspection and not exempt from disclosure pursuant to Division 10 (commencing with Section 7920.000) if received or maintained by a public agency.

(b) If an organization or institution refuses public inspection of a record in its custody in violation of the requirements described in paragraph (2) of subdivision (a), the archivist or local agency, or a designated representative, shall contact the organization or institution to inform it of those requirements and, if appropriate, facilitate inspection of the record. If an organization or institution continues to deny public inspection consistent with paragraph (2) of subdivision (a), the secretary, on behalf of the archivist or the local agency may pursue recovery of the records under this chapter.

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(Amended by Stats. 2021, Ch. 615, Sec. 144. (AB 474) Effective January 1, 2022. Operative January 1, 2023, pursuant to Section 463 of Stats. 2021, Ch. 615.)

Section § 6204.4

If you win a court case under this law, the judge can make the losing side pay for your lawyer and other legal expenses.

In an action brought pursuant to this chapter, the court may award reasonable attorney’s fees and costs to the prevailing party.

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(Added by Stats. 2009, Ch. 519, Sec. 1. (AB 1245) Effective January 1, 2010.)