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HomeMy WebLinkAbout04 - Amending City Council Policy E-1: Public Records Act PolicyQ SEW Pp�T CITY OF O � z NEWPORT BEACH <,FORN'P City Council Staff Report January 10, 2023 Agenda Item No. 4 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Leilani I. Brown, City Clerk - 949-644-3005, (brown@newportbeachca.gov PREPARED BY: Cassandra Hawks, Records Specialist chawks@newportbeachca.gov PHONE: 949-644-3005 TITLE: Resolution No. 2023-2: Amending City Council Policy E-1: Public Records Act Policy ABSTRACT: City Council Policy E-1 (Public Records Act Policy) outlines the process for addressing Public Records Act requests to ensure a prompt and appropriate response. City of Newport Beach (City) staff proposes to amend City Council Policy E-1 to reflect the recodification of the California Public Records Act. RECOMMENDATIONS: a) Determine this action is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because this action will not result in a physical change to the environment, directly or indirectly; and b) Adopt Resolution No. 2023-2, A Resolution of the City Council of the City of Newport Beach, California, Amending City Council Policy E-1 "Public Records Act Policy" to Comply with Recodification of the California Public Records Act. DISCUSSION: City Council Policy E-1 applies to all requests for City of Newport Beach (City) records made pursuant to the California Public Records Act (CPRA). The purpose of City Council Policy E-1 is to ensure a prompt and appropriate response is provided to all CPRA requests. The CPRA is a state law applicable to cities that allows the public to submit requests to inspect documents prepared, owned, used, or retained by the City in the normal course of business. In 2021, California Assembly Bill 473 was signed into law, recodifying and reorganizing the entirety of the CPRA. The changes were delayed until January 1, 2023, and are now in effect. There are no substantive changes to the content of the CPRA. 4-1 Resolution No. 2023-2: Amending City Council Policy E-1 Public Records Act Policy January 10, 2023 Page 2 The amended version of Council Policy E-1 is attached as Exhibit 1 to Resolution No. 2023-2 (Attachment A). A redline version of City Council Policy E-1 is also included as Attachment B. If Resolution No. 2023-2 is adopted by the City Council, the amended version of City Council Policy E-1 will take effect immediately. FISCAL IMPACT: There is no fiscal impact related to this item. ENVIRONMENTAL REVIEW: Staff recommends the City Council find this action is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. NOTICING: The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). ATTACHMENTS: Attachment A — Resolution No. 2023-2 Attachment B —City Council Policy E-1 (redlined) 4-2 ATTACHMENT A RESOLUTION NO. 2023-2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA, AMENDING CITY COUNCIL POLICY E-1 "PUBLIC RECORDS ACT POLICY" TO COMPLY WITH RECODIFICATION OF THE CALIFORNIA PUBLIC RECORDS ACT WHEREAS, the City of Newport Beach ("City") is governed by the Charter of the City of Newport Beach, Newport Beach Municipal Code, and Council Policies; WHEREAS, Council Policy E-1 outlines the procedure for responding to requests for public records in order to ensure a prompt and appropriate response; WHEREAS, effective January 1, 2023, the California Public Records Act has been recoded from its previous location in California Government Code Sections 6250 et seq., to a new location in the California Government Code at Sections 7920.000 et seq.; and WHEREAS, the City Council desires to amend City Council Policy E-1 to be consistent with the newly recodified statutes adopted by the California legislature. NOW, THEREFORE, the City Council of the City of Newport Beach resolves as follows: Section 1: The City Council hereby amends City Council Policy E-1 as provided in Exhibit 1, attached hereto and incorporated by reference. Section 2: All prior versions of the City Council Policy E-1 that are in conflict with the revisions adopted by this resolution are hereby repealed. Section 3: The recitals provided in this resolution are true and correct and are incorporated into the operative portion of this resolution. Section 4: If any section, subsection, sentence, clause or phrase of this resolution is for any reason held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this resolution. The City Council hereby declares that it would have passed this resolution and each section, subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional. INA Resolution No. 2023- Page 2 of 2 Section 5: Except as expressly modified in this resolution, all other City Council Policies, sections, subsections, terms, clauses and phrases set forth in the Council Policy Manual shall remain unchanged and shall be in full force and effect. Section 6: The City Council finds the adoption of this resolution and the amendment of Council Policy E-1 is not subject to the California Environmental Quality Act ("CEQA") pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. Section 7: This resolution shall take effect immediately upon its adoption by the City Council, and the City Clerk shall certify the vote adopting the resolution. ADOPTED this 10th day of January, 2023. Noah Blom Mayor Leilani I. Brown City Clerk APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Aaron C. Harp City Attorney Attachment: Exhibit 1 - City Council Policy E-1 (amended) E-1 PUBLIC RECORDS ACT POLICY PURPOSE The purpose of this policy is to ensure a prompt and appropriate response to all Public Records Act ("PRA") requests. POLICY This Policy applies to all requests for City of Newport Beach ("City") records pursuant to provisions of the PRA found in Sections 7920.000 et. seq. of the Government Code of the State of California. The PRA applies to records that are paper (hard copy) or electronic (computerized) prepared, owned, used, or retained by the City. Generally, the PRA requires disclosure of City records within ten (10) calendar days unless there is a statutory basis for non -disclosure, "unusual circumstances" justify an extension of time, or the City determines that the public interest in non -disclosure significantly outweighs the public interest in disclosure. To facilitate a prompt and appropriate response, all PRA requests shall be processed as follows: A. Each Department Director shall designate one (1) staff member, and one (1) alternate staff member to serve as the PRA representatives for their department ("PRA Staff"). The City Clerk shall maintain a list of PRA Staff. Department Directors shall periodically review the PRA Staff list to ensure it contains the most current information. B. Any City employee, officer, or Department Director (collectively, "Employee(s)") receiving a written PRA request for City records shall, on the day of receipt, deliver a copy of the request to their respective PRA Staff. C. Any Employee receiving a verbal PRA request for City records should ask the requester to confirm the request in writing and, if the requester declines, prepare a written record of the request. The Employee shall then deliver a copy of the request to their respective PRA Staff on the day of receipt. D. Requests for City records must sufficiently describe the records sought so that identification, location and retrieval can be accomplished. When a request to inspect/copy a City record is received, and the request does not describe a reasonably identifiable record, Employees are responsible to assist the requesting party as reasonably necessary to identify the records they are seeking. 4-5 E-1 E. City records may be inspected at any time during regular office hours. However, as a practical matter, the City may need to locate the requested records, gather multiple records, or redact exempt information prior to inspection. As soon as possible but not more than two (2) business days after receiving a request for a City record, PRA Staff shall review the request and proceed as follows: 1. If the request seeks a City record that is easily identifiable, locatable, and disclosable (e.g., contracts, staff reports, City Council Policies, etc.), PRA Staff shall respond directly to the requester with the City record(s) sought; or 2. If the request seeks a City record that is not easily identifiable, that relates to pending or anticipated litigation, involves multiple departments, requires more than two (2) business days to compile responsive documents, is not disclosable (e.g., personnel records, legal correspondence, confidential informant information, etc.), or raises a question as to whether the record is disclosable, the request shall be forwarded to the City Clerk's PRA Staff, with a "cc" to the City Attorney's PRA Staff. F. Within two (2) business days of receiving a request from PRA Staff, the Citv Clerk or his/her designee shall review the request and proceed as follows: 1. If the request seeks a City record that is retained by the City Clerk's Office the City Clerk or his/her designee shall respond directly to the requester with the City record(s) sought; or 2. If the request seeks City records retained by a department or multiple departments the City Clerk or his/her designee shall forward the request to the responsible PRA Staff within each department with directions on how to proceed. The City Clerk or his/her designee may designate one (1) department's PRA Staff as the lead department to respond to the request or may retain lead responsibility for a response within the City Clerk's Office, in which case the City Clerk's Office will gather all responsive documents and respond directly to the requester with the City records sought. If a department's PRA Staff is designated with lead responsibility the department shall gather all responsive City records from its own department and other departments, if any, and shall respond directly to the requestor with the City record(s) sought; or 3. If the request seeks City records that relate to pending or anticipated litigation, City records that may not be disclosable, or City records that raise RHO E-1 a legal question, the City Clerk or his/her designee shall contact the City Attorney's Office for assistance. G. The City Attorney's Office is available to assist the City Clerk's Office with any questions or issues that may arise regarding a PRA request. The City Attorney's Office shall evaluate all record requests referred by the City Clerk's Office and recommend an appropriate response. H. All PRA requests shall be responded to within ten (10) calendar days after the request is received by the City unless "unusual circumstances", as defined in California Government Code Section 7922.535(c) or any successor statute, require additional time not exceeding fourteen (14) calendar days. The City Attorney's Office shall be copied on all written requests for additional time. I. Once a request is made to inspect a City record and the records identified are located in the electronic communication system, the Employee having control of the electronic communication shall use his/her best efforts, to temporarily preserve the record until it is determined if the record is subject to preservation, public inspection, or production. J. All PRA requests for electronic communications should be handled in accordance with this Policy, and departmental policy and direction. All electronic communications that constitute an identifiable City record and that are not privileged or exempt from disclosure shall be disclosed in compliance with the applicable provisions of the PRA. K. The City is obligated to produce disclosable City records upon payment of fees covering direct costs of duplication or a statutory fee, if applicable (a fee is not applicable to a request to inspect documents). The City is not entitled to recover costs associated with searching for or retrieving the record unless specifically authorized by State law. The requestor should be referred to the Finance Department for payment of the costs of duplication prior to release of the records. L. An Employee is authorized not to disclose City records pursuant to a PRA request when: 1. The request does not reasonably describe an identifiable record after the City makes a reasonable effort to elicit additional clarifying information to help identify the record(s); 4-7 E-1 2. The request requires the City to compile data, perform research or create new records not currently in existence; 3. The request seeks records which are privileged or exempt from disclosure; or 4. The request seeks records that cannot be reasonably separated from records which are exempt from disclosure. Any questions related to the applicability of a particular exemption shall be referred to the City Clerk's Office and, if necessary, the City Clerk's Office will refer the question to the City Attorneys Office (e.g., a request for a document regarding a City Council communication, etc.). Any legal questions regarding a request may be referred directly to the City Attorney's Office. M. The City Clerk, with assistance from the City Attorney, will monitor compliance with this Policy and State law regulating the PRA. Adopted E-1 - 1-24-1994 Amended E-1- 4-23-2002 Amended El-1-24-2012 Amended El - 8-8-2017 Amended El-1-10-2023 ATTACHMENT B E-2 PUBLIC RECORDS ACT POLICY PURPOSE The purpose of this policy is to ensure a prompt and appropriate response to all Public Records Act ("PRA") requests. POLICY This Policy applies to all requests for City of Newport Beach ("City") records pursuant to provisions of the PRA found in Sections 62507920.000 et. seq. of the Government Code of the State of California. The PRA applies to records that are paper (hard copy) or electronic (computerized) prepared, owned, used, or retained by the City. Generally, the PRA requires disclosure of City records within ten (10) calendar days unless there is a statutory basis for non -disclosure, "unusual circumstances" justify an extension of time, or the City determines that the public interest in non -disclosure significantly outweighs the public interest in disclosure. To facilitate a prompt and appropriate response, all PRA requests shall be processed as follows: A. Each Department Director shall designate one (1) staff member, and one (1) alternate staff member to serve as the PRA representatives for their department ("PRA Staff"). The City Clerk shall maintain a list of PRA Staff. Department Directors shall periodically review the PRA Staff list to ensure it contains the most current information. B. Any City employee, officer, or Department Director (collectively, "Employee(s)") receiving a written PRA request for City records shall, on the day of receipt, deliver a copy of the request to their respective PRA Staff. C. Any Employee receiving a verbal PRA request for City records should ask the requester to confirm the request in writing and, if the requester declines, prepare a written record of the request. The Employee shall then deliver a copy of the request to their respective PRA Staff on the day of receipt. D. Requests for City records must sufficiently describe the records sought so that identification, location and retrieval can be accomplished. When a request to inspect/copy a City record is received, and the request does not describe a reasonably identifiable record, Employees are responsible to assist the requesting party as reasonably necessary to identify the records they are seeking. I. • E-2 E. City records may be inspected at any time during regular office hours. However, as a practical matter, the City may need to locate the requested records, gather multiple records, or redact exempt information prior to inspection. As soon as possible but not more than two (2) business days after receiving a request for a City record, PRA Staff shall review the request and proceed as follows: 1. If the request seeks a City record that is easily identifiable, locatable, and disclosable (e.g., contracts, staff reports, City Council Policies, etc.), PRA Staff shall respond directly to the requester with the City record(s) sought; or 2. If the request seeks a City record that is not easily identifiable, that relates to pending or anticipated litigation, involves multiple departments, requires more than two (2) business days to compile responsive documents, is not disclosable (e.g., personnel records, legal correspondence, confidential informant information, etc.), or raises a question as to whether the record is disclosable, the request shall be forwarded to the City Clerk's PRA Staff, with a "cc" to the City Attorney's PRA Staff. F. Within two (2) business days of receiving a request from PRA Staff, the City Clerk or his/her designee shall review the request and proceed as follows: 1. If the request seeks a City record that is retained by the City Clerk's Office the City Clerk or his/her designee shall respond directly to the requester with the City record(s) sought; or 2. If the request seeks City records retained by a department or multiple departments the City Clerk or his/her designee shall forward the request to the responsible PRA Staff within each department with directions on how to proceed. The City Clerk or his/her designee may designate one (1) department's PRA Staff as the lead department to respond to the request or may retain lead responsibility for a response within the City Clerk's Office, in which case the City Clerk's Office will gather all responsive documents and respond directly to the requester with the City records sought. If a department's PRA Staff is designated with lead responsibility the department shall gather all responsive City records from its own department and other departments, if any, and shall respond directly to the requestor with the City record(s) sought; or 3. If the request seeks City records that relate to pending or anticipated litigation, City records that may not be disclosable, or City records that raise 4-10 E-2 a legal question, the City Clerk or his/her designee shall contact the City Attorney's Office for assistance. G. The City Attorney's Office is available to assist the City Clerk's Office with any questions or issues that may arise regarding a PRA request. The City Attorneys Office shall evaluate all record requests referred by the City Clerk's Office and recommend an appropriate response. H. All PRA requests shall be responded to within ten (10) calendar days after the request is received by the City unless "unusual circumstances", as defined in California Government Code Section 6Y7922.535(c) or any successor statute, require additional time not exceeding fourteen (14) calendar days. The City Attorney's Office shall be copied on all written requests for additional time. I. Once a request is made to inspect a City record and the records identified are located in the electronic communication system, the Employee having control of the electronic communication shall use his/her best efforts, to temporarily preserve the record until it is determined if the record is subject to preservation, public inspection, or production. J. All PRA requests for electronic communications should be handled in accordance with this Policy, and departmental policy and direction. All electronic communications that constitute an identifiable City record and that are not privileged or exempt from disclosure shall be disclosed in compliance with the applicable provisions of the PRA. K. The City is obligated to produce disclosable City records upon payment of fees covering direct costs of duplication or a statutory fee, if applicable (a fee is not applicable to a request to inspect documents). The City is not entitled to recover costs associated with searching for or retrieving the record unless specifically authorized by State law. The requestor should be referred to the Finance Department for payment of the costs of duplication prior to release of the records. L. An Employee is authorized not to disclose City records pursuant to a PRA request when: 1. The request does not reasonably describe an identifiable record after the City makes a reasonable effort to elicit additional clarifying information to help identify the record(s); 4-11 E-2 2. The request requires the City to compile data, perform research or create new records not currently in existence; 3. The request seeks records which are privileged or exempt from disclosure; or 4. The request seeks records that cannot be reasonably separated from records which are exempt from disclosure. Any questions related to the applicability of a particular exemption shall be referred to the City Clerk's Office and, if necessary, the City Clerk's Office will refer the question to the City Attorney's Office (e.g., a request for a document regarding a City Council communication, etc.). Any legal questions regarding a request may be referred directly to the City Attorney's Office. M. The City Clerk, with assistance from the City Attorney, will monitor compliance with this Policy and State law regulating the PRA. Adopted E-1 - 1-24-1994 Amended E-1- 4-23-2002 Amended E1-1-24-2012 Amended E1 - 8-8-2017 Amended E1-1-10-2023 4-12