The California Public Records Act (PRA) provides for disclosure of public records, and the Act’s definition of public records is broad enough to reach even text messages sent from a city official’s personal phone if that message touches on “the public’s business.” Does that mean city officials must keep their text messages indefinitely for fear of a PRA request?

In a recent demurrer and motion to strike filed on behalf of the City of Los Angeles, Bienert Katzman Littrell Williams LLP argued that the City (and its officials) have no such obligation. The PRA is not a record retention statute. Its broad definition of what is a “public record” is limited in application to requests under the Act. Record retention statutes define “public records” much more narrowly and don’t reach text messages—or anything else that captures only “fleeting thoughts and random bits of information.” See City of San Jose v. Superior Court (2017) 2 Cal.5th 608, 618.

Access vs. Archiving: The PRA’s True Scope

The PRA contains no requirement to preserve records, the motion argues. It’s about access, not archiving. The statute is designed to ensure that existing public records are available upon request, but it doesn’t say what records an agency must keep or for how long. In City of Gilroy v. Superior Court (2023) 96 Cal.App.5th 818, the court recognized that the PRA does not govern the retention of public records and does not require agencies to retain records potentially responsive to public records requests. Further, the PRA does not regulate what types of information agencies must retain. City of Gilroy, 96 Cal.App.5th at 836, quoting Los Angeles Police Department v. Superior Court (1977) 65 Cal.App.3d 661, 668.

Courts have repeatedly emphasized that judges cannot read into the law requirements that aren’t there. As noted in Gilroy, a court “may not broaden or narrow the scope of the provision by reading into it language that does not appear in it or reading out of it language that does.” City of Gilroy, supra, 96 Cal.App.5th at 837 quoting Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 545.

No Remedy for Deleted Records

Because the PRA is silent on retention, lawsuits claiming violations based on destroyed records lack legal support. Under Code of Civil Procedure § 431.10(b)(2), such claims are irrelevant and can be removed with a motion to strike under § 436(a). That’s precisely what the City has asked the court to do in response to the Los Angeles Times Communications, LLC’s complaint.

While the PRA is a powerful tool for transparency, it does not mandate that cities retain every message or note. The City’s motion properly reinforces the limits of the PRA and ensures that public records litigation stays rooted in the statute’s actual text.

Read more:

• L.A. Times sues city over Mayor Bass’ deleted text messages during fire response, Sonja Sharp, Los Angeles Times
• BKLW secures dismissal of appeal of bankruptcy lawsuit seeking more than $10 million in damages, bklwlaw.com
• Motion to dismiss secured for high-profile client in alleged abuse case, bklwlaw.com