A city’s ability to access electronically stored data does not equal possession of that data under the Public Records Act, a California appellate court recently ruled.
 
In Anderson-Barker v. Superior Court of Los Angeles County, an individual submitted a PRA request to the Los Angeles Police Department for vehicle towing and impoundment records. The LAPD agreed to provide records in its possession. However, it declined to provide records owned and maintained by an association of privately owned towing companies that contracted with the City of Los Angeles.
 
The requester filed a writ petition asking the court to order the City of Los Angeles to disclose records from the towing companies’ electronic databases. She argued that the City had access to the towing companies’ data. The requester issued discovery requests that led to litigation and resulted in a ruling that the Civil Discovery Act applies to PRA proceedings. (See City of Los Angeles v. Superior Court of Los Angeles County, et al.) On the merits of the requester’s petition seeking the towing companies’ data, however, the trial court found that the City did not “possess or control” the records stored in the association’s databases.
 
The requester appealed the trial court’s ruling, but the Second District Court of Appeal affirmed the lower court’s decision on Jan. 22. An agency has constructive possession within the meaning of the PRA if it has the “right to control the records.” The City successfully showed that it did not control the records by presenting evidence that the City does not direct what data is put into the towing companies’ databases and could not modify the data in any way.
 
The appellate court thus held mere access to privately held information is not sufficient to establish possession or control of that information such that a public agency would have to release the records pursuant to a PRA request.
 
This is a favorable decision to public agencies that may have access to many electronic databases in this digital age. The court recognized the danger of a contrary ruling, which would have transformed any privately held information to which an agency has access into a disclosable public record.

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