HomeMy WebLinkAbout04.a. California Public Records Act (Handout)'i�a.
Oandoo
CALIFORNIA PUBLIC RECORDS ACT
meyers i nave
professionoI low corpora Iion
55512th Street
Suite 1500
Oakland, CA 94607
510.808.2000
www.meyersnave.com
With offices in:
Oakland
Los Angeles
Sacramento
Santa Rosa
San Francisco
Fresno
CALIFORNIA PUBLIC RECORDS ACT
(California Government Code Section 6250 et seq.)
INTRODUCTION
This handout is intended as a general guide to public agencies' obligations
concerning requests to view or receive copies of public records in
accordance with the California Public Records Act ( "CPRA ") codified in
California Government Code Section 6250 et seq., and cases construing
it.' In addition to a summary of the obligations the CPRA imposes on
public agencies and of the public policies that the CPRA implements, this
handout includes recommendations concerning responding to records
requests. This material can be helpful to ensure that determinations
concerning particular requests are made in accordance with agencies'
duties under the CPRA and its statutory purposes.
II. WHAT THE PUBLIC RECORDS ACT DOES AND UNDERLYING
POLICIES
A. What the CPRA Is.
The CPRA is a series of statutes codified beginning at Section
6250 of the California Government Code. The CPRA was first
enacted in 1968 and modeled on the federal Freedom of
Information Act ( "FOIA ") codified in 5 U.S.C. 552 et seq. (ACLU v.
Deukmejian (1982) 32 Cal.3d 440, 447.) The CPRA has been
amended many times since its adoption, and has evolved into a
large body of case law concerning the access the CPRA affords to
public records and the many exceptions the CPRA establishes to
that access.
B. What the CPRA Does.
The CPRA makes all non - exempt, state and local government
agency records (including reasonably segregable, non - exempt
portions of otherwise exempt records) in any form or medium
subject to public inspection during office hours, and subject to being
made available for copying on payment of duplication costs or a
statutory fee. ( §6253.)
I All section references in this handout are to the California Government Code unless otherwise indicated.
m e y e r s I nave 2 Copyright 2012
C. The CPRA Policy.
"In enacting this chapter, the Legislature, mindful of the right of
individuals to privacy, finds and declares that access to information
concerning the conduct of the people's business is a fundamental
and necessary right of every person in this state." ( §6250.)
D. Policy Concerns.
The CPRA was passed "to ensure public access to vital information
about the government's conduct of its business." (City of San Jose
v. Superior Court (1999) 74 Cal. App. 4th 1008, 1016, citing C.B.S.,
Inc. v. Block (1986) 42 Cal.3d 646, 656.) However, disclosure of
records under the CPRA "involves two fundamental yet competing
interests: (1) prevention of secrecy in government; and (2)
protection of individual privacy." (City of San Jose v. Superior
Court (1999) 74 Cal.App. 4th 1008, 1016, citing Black Panther
Party v. Kehoe (1974) 42 Cal.App. 3d 645, 651.)
Public agency officials should also consider their fiduciary
responsibilities in responding to public records requests.
Disclosure of exempt information that does not involve individual
privacy may impede agency operations and adversely impact the
public, as in the case of information disclosure concerning pending
litigation or labor or real property negotiations.
E. Why Should Public Agencies Care?
Some care should be used in responding to requests subject to the
CPRA. Failure to disclose records in accordance with the CPRA
can be a basis for liability. Any person may bring an action for
injunctive or declaratory relief or writ of mandate to enforce a right
to inspect or receive a copy of public records under the CPRA, and
prevailing plaintiffs are entitled to recovery of court costs and
reasonable attorney's fees ( §6258). (Public agencies may not
seek declaratory relief concerning their obligation to disclose
records; such an action may only be brought by individuals or
entities seeking disclosure of public records. (Filarsky v. Superior
Court (2002) 28 Cal. 4th 419.) Improper disclosure of records can
also be a basis for liability. Disclosure of privileged information not
subject to disclosure under the CPRA may violate constitutional
privacy rights. (Alarcon v. Murphy (1988) 201 Cal.App. 3d 1, 6.) In
some cases, criminal penalties apply to improper disclosure of
exempt records. (See, e.g., Cal. Pen. Code §11169 making
improper disclosure of child abuse records a misdemeanor.)
Therefore, determinations regarding disclosure and non - disclosure
m e y e r s I nave Copyright 2012
of records should be made with equal care, and any questions
should be directed to agency counsel before the time for
responding to a records request has expired. In particular, it is
advisable to consult with counsel on most requests for police
records and any requests for records involving minors. The related
statutes and rules are especially complex and involve significant
individual privacy rights.
F. Proposition 59 (California Constitution, Article I, Section 3)
Proposition 59 establishes that the public's right of access to the
meetings and writings of California public officials and agencies is
protected under the California Constitution. Proposition 59 amends
Section 3 of Article I of the California Constitution. As amended,
Section 3, Subdivision (b)(2) provides that statutes, court rules and
other authorities (including those in effect on November 3, 2004,
when Proposition 59 took effect) must be broadly construed if they
further the public's right of access, and narrowly construed if they
limit access. Subdivision (b)(2) also provides that statutes, court
rules or other authorities adopted after November 3, 2004, that limit
the right of access must be adopted with findings that demonstrate
the interest protected by the limit, and the need for protecting that
interest.
Proposition 59 includes four savings provisions concerning existing
open meeting and public records laws. Subdivision (b)(3) provides
that nothing in the subdivision supersedes or modifies privacy rights
guaranteed under Article I, Section 1, or affects the construction of
any statute, court rule or other authority that protects the right to
privacy (including any statutory procedures governing discovery or
disclosure of peace officer performance or qualifications
information). Subdivision (b)(4) provides that nothing in the
subdivision supersedes or modifies any provision of the California
Constitution. Subdivision (b)(5) provides that the subdivision does
not repeal or nullify, expressly or by implication, any constitutional
or statutory exception to the right of access to public records or
meetings of public bodies in effect on November 3, 2004 (including,
but not limited any statute protecting the confidentiality of law
enforcement and prosecution records). Subdivision (b)(6) provides
that nothing in the subdivision repeals, nullifies, supersedes or
modifies protections for the confidentiality of proceedings and
records of the Legislature under Section 7 of Article IV of the
California Constitution, state law, or legislative rules. Subdivision
(b)(6) further provides that nothing in the subdivision affects the
scope of permitted discovery in judicial or administrative
proceedings regarding deliberations of the Legislature.
m e y e r s I nave 4 Copyright 2012
Incorporating the public's right to access public entities' meetings
and records into the California Constitution does not, by itself, have
much impact on public records law. The courts already broadly
construe the right of access and narrowly construe exemptions. In
addition, the strong savings provision in Subdivision (b)(3) means
that there should be no effect on Constitutional, statutory, or
common law privacy rights (since (b)(3) provides that such rights
are not superseded or even modified). However, the savings
provision in Subdivision (b)(5) is somewhat less strong. It only
provides that constitutional and statutory limits on access are not
repealed or nullified. Nothing in (b)(5) prevents applying Article I,
Section 3, to narrow statutory limits on access, or to narrow, repeal
or nullify common law limits on access, as long as they do not
involve privacy rights. It is clear that new statutory exemptions from
disclosure must be supported by findings under Subdivision (b)(2).
However, the impact of that requirement is unclear, since most
exemptions from disclosure, and the cases construing them,
already address the public interests served by non - disclosure that
justify the exemption.
III. A STEP -BY -STEP APPROACH TO PUBLIC RECORDS ACT ANALYSIS
AND INFORMATION REQUESTS
A. Technicalities.
1. Who Must Comply With the CPRA?
Public agencies, which include state agencies, local agencies,
and some private entities, are required to comply with the
CPRA. ( § §6252(a), (d), and (f).) State agencies include every
state office, officer, department, division, bureau, board, and
commission. ( §6252(f).) Local agencies include a county, city
(whether general law or chartered), city and county, school
district, municipal corporation, district, political subdivision, and
any board, commission, and agency thereof. ( §6252(a).)
Private entities required to comply with the CPRA include a
private corporation, limited liability company, or other entity that
either (1) is created by the elected legislative body of a state or
local agency in order to exercise authority that may lawfully be
delegated by the elected governing body to a private
corporation, limited liability company, or other entity or (2)
receives funds from a local agency and the membership of
whose governing body includes a member of the legislative
body of the local agency appointed to that governing body as a
full voting member by the legislative body of the local agency.
( §54952.) The Legislature, state courts, and the federal
m e y e r s I nave 5 Copyright 2012
government and its local agencies are not subject to the CPRA.
( §6252(a).)
2. What is a "Public Record "?
A "public record" is any writing containing information relating to
the conduct of the public's business prepared, owned, used, or
retained by any state or local agency regardless of physical
form or characteristics. ( §6252(e).) A "writing" is any
handwriting, typewriting, printing, photostating, photographing,
photocopying, transmitting by electronic mail or facsimile, and
every other means of recording upon any tangible thing any
form of communication or representation, including letters,
words, pictures, sounds, or symbols, or combinations thereof,
and any record thereby created, regardless of the manner in
which the record has been stored. ( §6252(g).)
3. Existing Records.
Disclosure requirements under the CPRA apply only to existing,
reasonably identifiable records. ( §6253.) It has long been
recognized that there is no duty under the CPRA to comply with
requests that prospectively seek records that do not yet exist, or
to create new records in response to formatting or other
preferences of the requester. (Rosenthal v. Hansen (1973) 34
Cal. App. 3d 754, 758.) This established principle has been
somewhat undercut by amendments to the CPRA. Section
6353.9 permits charging requesters for computer services
where data compilation, extraction or programming is required
to produce a record. Nonetheless, Section 6253.9 only applies
to identifiable, non - exempt electronic information that an agency
already has and that is in a format already used by the agency
for itself or for transmission to another agency. ( §6253.9(a).)
Also, agencies that elect to create and make available records
indexes will be exempt from requirements for assisting
requesters. ( §6253.1(d)(3).) However, the creation of such
records indexes is not mandatory. (Haynie v. Superior Court
(2001) 26 Cal.41h 1061, 1074 - 1075.)
4. Basis for Rejection.
Technicalities such as whether an agency record is a "public
record" are almost never, in themselves, legitimate bases for
rejecting or ignoring a request. Any record in any form or
medium that relates to the conduct of the public's business that
is prepared, kept or used by a public agency is a "public record"
m e y e r s I nave 6 Copyright 2012
subject to the CPRA. ( §6252(e).) Only purely personal records
unrelated to the conduct of the public's business, such as
shopping lists phoned in to public agency officials or employees
from home, are not considered "public records." (Braun v. Taft
(1984) 154 Cal. App. 3d 332, 340.) Similarly, a requester's
identity and /or reason for seeking records access are not valid
bases for limiting records access if the records are otherwise
subject to disclosure. ( §6257.5; ACLU v. Deukmejian (1982) 32
Cal.3d 440, 457.) Any person can inspect any public record.
( §6253(a).) "Persons" entitled to view public records include
natural persons, corporations, partnerships, limited liability
companies, firms and associations. ( §6252(c).) Elected
members and officers of state and local agencies have the
same access to public records as any other person. ( §6252.5.)
"Persons" entitled to enforce the CPRA are not limited to
California state citizens, but also include domestic and foreign
corporations. (Connell v. Superior Court (1997) 56 Cal.App.4th
601, 611 -612.) Also, requests to view agency records or for
copies of agency records need not cite to the CPRA.
It is therefore recommended that any request to view agency
records or for copies of agency records be treated as requests
under the CPRA, unless it is clear from the request it is
submitted pursuant to different legal authority, such as a
subpoena duces tecum under California Code of Civil
Procedure Section 2020. In fact, public agencies are obligated
to respond even to oral requests for public records. There is no
requirement that requests for public records be in writing. (Los
Angeles Times v. Alameda Corridor Transportation Authority
(2001) 88 Cal.App.41h 1381, 1392.) However, rejections of
written requests must be in writing. ( §6255(b).)
B. Requester Assistance.
Public agencies are required to assist requesters in making a
focused and effective request that reasonably describes identifiable
records. ( §6253.1.) To the extent reasonable under the
circumstances, public agencies should assist requesters in
identifying records sought in terms that refer to actual categories of
records the agency maintains. ( §6253.1.) Although the Legislature
established the assistance requirements of Section 6253.1, giving
reasonable assistance in identifying requested public records was
already a common -law requirement. (State Board of Equalization
v. Superior Court (1992) 10 Cal.App. 4th 1177, 1192.) The courts
also already excused requesters from precisely identifying
documents sought. (California First Amendment Coalition v.
m e y e r s I nave % Copyright 2012
Superior Court (1998) 67 Cal.App. 4th 159, 165 -166.) Nonetheless,
Section 6253.1(c) provides that the assistance requirements are in
addition to existing Section 6253 requirements.
Section 6253.1 provides that, to the extent reasonable under the
circumstances, agencies must give requesters three specific kinds
of assistance, unless an exemption applies. First, agencies must
assist requesters in identifying records responsive to the request or
its purpose. ( §6253.1(a)(1).) Second, agencies must describe the
information technology and the physical location in which the
records exist. ( §6253.1(a)(2).) Third, agencies must provide
suggestions for overcoming any practical basis for denial of records
access. ( §6253.1(a)(3).) Whatever other assistance the public
agency gives, where appropriate, it is recommended the public
agency ask requesters for clarifying information that could help
identify the records sought. Doing so can satisfy the first of the
assistance requirements. ( §6253.1(b).)
Section 6253.1 also establishes certain exemptions that appear
intended to encourage records disclosure generally, to discourage
rejection of records requests based on the "catch -all" exemption in
Section 6255, and to encourage making document indexes
available. Section 6253.1(d)(1) provides that disclosure of
requested records excuses compliance with Section 6253.1
requirements. However, disclosure of exempt records may
implicate individual privacy rights, agency officials' fiduciary
obligations, and penalties for disclosure. Disclosure of exempt
records may also be a basis of agency liability. (Alarcon v. Murphy
(1988) 201 Cal.App.3d 1, 6.) Section 6253.1(d)(2) provides that a
determination that the records sought are exempt excuses
compliance with Section 6253.1 requirements, but only if the
determination is based solely on Section 6254. Nonetheless, all
agency determinations that records are exempt from disclosure
should cite, in addition to all other applicable exemptions, Section
6255. Section 6255 applies to all such determinations. Doing so
also preserves that argument in the event of a challenge. Section
6253.1(d)(3) provides that creating and making available records
indexes excuses compliance with Section 6253.1 requirements.
However, as discussed above, agencies have no obligation to
create such indexes. (Haynie v. Superior Court (2001) 26 Cal.4th
1061, 1074 - 1075.)
C. Notification To Requesters.
A public agency is required to notify requesters in writing within 10
days of receipt of the request whether the agency possesses the
m e y e r s I nave 8 Copyright 2012
records sought and whether they are wholly or partly disclosable, or
whether the time for notice of disclosable records will be extended.
( §6253(c).) The time for such notice may be extended up to an
additional 14 days if there is a need to: search for records in
separate offices or from among voluminous records; consult with
another agency or part of an agency with a substantial interest
concerning disclosure of the records; or compile data, write
programming language, or construct a computer report to extract
data. ( §6253(c).) Such extensions must be by written notice from
the agency head or designee and give the reasons for the
extension and the expected notice date. ( §6253(c).) If the agency
determines that a request seeks disclosable records, the agency
must state the estimated date and time when the records will be
made available. ( §6253(c).) The public agency may not delay or
obstruct the inspection or copying of public records. ( §6253(d).)
Note that one exception to the 10 -day requirement is Section
81008, which requires Form 700's to be released within two
business days of the request.
D. Records Disclosure and Electronic Records.
A public agency must make existing, reasonably identifiable, non-
exempt records available for inspection during business hours and
available for copying upon payment of duplication costs or the
applicable statutory fee. ( §6253(a) and (b).) If an exempt record
contains non - exempt portions that can be reasonably segregable, a
public agency must make available for inspection those non-
exempt portions by deleting or removing the exempt portions of the
record. ( §6253(a).)
Existing non - exempt records that are requested in an electronic
format already used by the public agency must be provided in that
format, unless doing so would compromise the security or integrity
of the original record, or any proprietary software in which it is
maintained, or unless otherwise prohibited by law. ( §6253.9.) As a
result of Section 6253.9, public agencies may wish to adopt
electronic records policies to define which electronic records of the
agency are deemed permanent agency records, and which
electronic records are considered drafts not retained in the ordinary
course of business pursuant to Section 6254(a). Absent such a
policy, agencies may be required to review all existing agency
emails and other electronic records in response to a request that
may apply to such electronic records. Also, be aware that agency
electronic records may include "meta- data." Such data may include
information about document authors, other documents, and
m e y e r s I nave 9 Copyright 2012
commentary and staff notes that may be privileged and exempt
from disclosure.
E. Copies and Costs.
The public agency must make the records promptly available to the
requester upon payment of fees covering direct costs of duplication,
or a statutory fee if applicable. ( §6253(b).) Only the direct costs of
making an electronic copy of a record may be charged to a
requester, but such costs may include the cost of programming and
required computer services where the record sought is otherwise
produced only at regularly scheduled intervals, or production of the
record would require data compilation, extraction or programming.
( §6253.9.) "Direct costs" do not include ancillary tasks such as
retrieval, inspection, and handling of the file from which the copy is
extracted.
F. Statutory and Common Law Exemptions.
The CPRA and common law provide public agencies a variety of
discretionary exemptions which may be utilized as a basis for
withholding public records from disclosure. A public agency must
analyze records requests in light of the CPRA's dual purposes:
preventing government secrecy and protecting individual privacy.
(City of San Jose v. Superior Court (1999) 74 Cal.App. 4th 1008,
1016 - 1018.) Agency obligations concerning records disclosure and
protection of individual privacy rights should be analyzed together
and with equal care. Frequently invoked exemptions include the
following:
1. Referendum, initiative and recall petitions ( §6253.5).
2. Identities of those requesting bilingual ballots or ballot
pamphlets ( §6253.6).
3. Numerous exemptions listed in Section 6254, subdivisions a-
cc. The most commonly applicable subdivisions include
those listed below:
6254(a). Preliminary drafts, notes, and memoranda.
Preliminary drafts, notes, or intra- agency or
interagency memorandums that are not retained in
the ordinary course of business, and for which the
public interest in withholding such records outweighs
the public interest in disclosure. ( §6254(a).)
m e y e r s I nave 10 Copyright 2012
[The "preliminary draft" exemption applies to pre -
decisional writings containing advisory opinions,
recommendations and policy deliberations that an
agency has discarded or customarily discards. Unlike
the "deliberative process privilege," the "preliminary
draft" exemption does not protect factual material.
(Citizens for a Better Environment v. Dept. of Food
and Agriculture (1985) 175 Cal.App. 3d 704, 716-
717).]
6254(b). Pending Litigation. Records pertaining to
pending litigation of the agency or to claims under
Section 810 et seq. ( §6254(b).)
[The "pending litigation" exemption is limited to
records prepared for or acquired in the course of
litigation to which the public agency is a party. (71
Ops. Atty. Gen. 235.) The "pending litigation"
exemption applies only until the pending litigation has
been finally adjudicated or otherwise settled.
However, other exemptions, such as the attorney -
client privilege, work - product privilege, and the
deliberative process privilege may apply to litigation
records not covered under the "pending litigation"
exemption. Also, unlike the "pending litigation"
exemption, the attorney - client privilege, work - product
privilege and deliberative process privilege survive the
litigation.]
iii. 6254(c). Personnel, medical, or similar files.
Personnel, medical, or similar files whose disclosure
would constitute an unwarranted invasion of personal
privacy. ( §6254(c).)
[Although the "personnel exemption" appears to
include an extensive amount of private information,
courts have greatly limited the information in
personnel, medical, or similar files that the disclosure
of which would constitute an unwarranted invasion of
personal privacy. For instance, information as to
education, training, experience, awards and previous
positions implicates no privacy or public policy
exception. (Eskaton Monterey Hospital v. Meyers
(1982) 134 Cal.App. 3d 788, 794.) Employee
contracts between state and local agencies and public
officials or employees are non - exempt public records.
m e y e r s I nave 11 Copyright 2012
( §6254.8.) Two related recent California Supreme
Court cases have limited the scope of this exemption.
The names, employing departments, and hiring and
termination dates of peace officers are subject to
disclosure. (Commission on Peace Officer Standards
and Training v. Superior Court (2007) 42 Cal. 4th
278.) The names and salaries, including performance
bonuses and overtime, of public employees, including
peace officers, are subject to disclosure. (Int'I
Federation of Professional and Technical Engineers,
Local 21, AFL -CIO v. Superior Court (2007) 42 Cal.
4th 319.)]
iv. 6254(f). Investigative records and intelligence
information. Law enforcement records relating to an
investigation including information that would
endanger the successful completion of an
investigation or that would endanger a person's
safety, and officer analyses or conclusions. Certain
prescribed arrest and investigation information must
be disclosed to certain crime victims. Certain
prescribed arrestee and complaint information must
be disclosed to the public, and certain prescribed
arrestee information must be disclosed for scholarly,
journalistic, political, governmental, or licensed private
investigator purposes upon a proper declaration that
the information will not be used to sell a product or
service. ( §6254(f).)
[The U.S. Supreme Court has upheld the requirement
for disclosure against a facial challenge (Los Angeles
Police Department v. United Reporting (1999) 528
U.S.32). However, the U.S. District Court, Southern
District of California, in an unpublished opinion has
found the sales prohibition invalid based on an as-
applied challenge. The courts distinguish between
the exemption for "investigatory records," and the
exemption for "investigatory files." The exemption for
"investigatory records" applies to records of
investigations undertaken for the purpose of
determining whether a violation of law may occur or
has occurred. If a violation is detected, the exemption
also extends to records of investigations conducted
for the purpose of uncovering information surrounding
the commission of the violation and its agency. The
exemption for "investigatory files" applies to records
m e y e r s I nave 12 Copyright 2012
contained in investigation files once the prospect of
enforcement proceedings becomes concrete and
definite. The "investigatory file" exemption protects
information because of its inclusion in an investigatory
file, whether or not the information is exempt based
on its content. (Haynie v. Superior Court (2001) 26
Cal.4th 1061, 1069.) Once the investigatory
exemptions apply, they apply indefinitely, even after
the investigation is closed (Rivero v. Superior Court of
San Francisco County (1997) 54 Cal.App. 4th 1048,
1052).]
V. 6254(h). Real estate appraisals or engineering
feasibility estimates. The content of real estate
appraisals or engineering feasibility estimates and
evaluations concerning property acquisition or
prospective public supply and construction contracts,
but only until all property is acquired or the contract
obtained ( §6254(h)).
Vi. 6254(i). Taxpayer information. Required taxpayer
information regarding tax collection that is received in
confidence and that, if disclosed, would result in an
unfair competitive disadvantage for the person
supplying the information ( §6254(i)).
vii. 6254(k). Exempted pursuant to federal or state law.
Records whose disclosure is exempted or prohibited
under federal or state law, including records that are
privileged under the Evidence Code. ( §6254(k).)
[Note: records exempt from disclosure under Section
6254(k) include those identified in an extensive list of
other state statutes that establish exemptions under
the CPRA. ( §§ 6275 - 6276.48.)
Some examples of privileges that operate as
exemptions from disclosure under Section 6254(k):
a. The Public Records Act has made the attorney -
client privilege that applies to confidential
communications within the scope of the attorney -
client relationship applicable to public records,
and to legal advice made when no litigation is
threatened. (Roberts v. City of Palmdale (1993) 4
Cal. 4th 363, 370 -371.)
m e y e r s I nave 13 Copyright 2012
b. The official information privilege applies to
information acquired in confidence by a public
employee in the course of his or her duty and not
open, or officially disclosed to the public prior to
the time the claim of privilege is made. (Cal.
Evid. Code §1040.) The privilege maybe
asserted by an authorized public agency official
where disclosure is forbidden by U.S. or
California law or disclosure is against the public
interest because the need for preserving the
confidentiality of the information outweighs the
need for disclosure. (Id.)]
viii. 6254(n). Personal financial data. Personal financial
data filed with licensing agencies as required to
establish that the applicant is qualified for the license,
certificate or permit being sought. ( §6254(n).)
4. Memoranda submitted to a local agency legislative body by
its legislative counsel pursuant to Government Code
§ §11126(e) or 54956.9. ( §6254.25.)
5. Voter registration information. ( §6254.4.)
6. Information where on the facts of the particular case the
public interest in non - disclosure clearly outweighs the public
interest in disclosure. ( §6255.)
Section 6255 is often referred to as the "catch -all"
exemption. The possible applications of the Section 6255
exemption are unlimited, but the most important may be the
deliberative process privilege that the courts have read into
Section 6255. The deliberative process privilege is a
common -law exemption that has evolved to protect
information whose disclosure could discourage candid
discussion within an agency and thereby undermine its
ability to perform its functions. (California First Amendment
Coalition v. Superior Court (1998) 67 Cal. App. 4th 159, 169-
172.) The privilege protects communications with agency
decision makers before decisions are made to prevent injury
to the quality of executive decisions. Unlike the "preliminary
drafts" exemption contained in Section 6254(a), the
deliberative process privilege also protects factual material
since it too may reveal the thought process of government
officials. (1d.).
meyersInave 14 Copyright 2012
In applying the balancing test under Section 6255, it can be
useful to apply Freedom of Information Act (FOIA) law.
California courts have relied on federal law in construing the
CPRA, especially to help balance conflicting individual
privacy and public disclosure interests. (See City of San
Jose v. Superior Court (1999) 74 Cal. App. 4th 1008, 1016,
citing Times Mirror Co. v. Superior Court (1991) 53 Cal. 3d
1325, 1338.) Such cases are authority for application of
federal law principles to records disclosure under the CPRA.
For example:
(City of San Jose v. Superior Court (1999) 74 Cal.
App. 4th 1008, 1025, citing U.S. Dept. of Justice v.
Reporters Committee (1989) 489 U.S. 749, 772.
ii. Disclosure of records regarding private citizens,
identifiable by name, is not what the FOIA framers
had in mind. (City of San Jose v. Superior Court
(1999) 74 Cal. App. 4th 1008, 1019, citing U.S. Dept.
of Justice v. Reporters Committee (1989) 489 U.S. at
749.)
a. In determining whether the public interest in non-
disclosure of individuals' names and addresses
outweighs the public interest in disclosure, courts
have evaluated whether disclosure would serve
the legislative purpose of shedding light on the
agency's performance of its statutory duties.
(City of San Jose v. Superior Court (1999) 74
Cal.App. 4th 1008, 1019, citing Voinche v. F.B.I.
(D.D.C. 1996) 940 F. Supp. 323, 330 and
Department of Defense v. F.L.R.A. (1994) 510
U.S. 487, 502.)
G. Waiver of Exemptions.
Note that under Section 6254.5, disclosure by a public agency
member, agent, officer or employee acting within the scope of his
or her responsibilities, of an otherwise exempt record to any
member of the public waives the exemptions in Sections 6254,
6254.7, or similar provisions. However, Section 6254.5 establishes
a number of exemptions for disclosure that does not result in a
waiver under that section. Such exceptions relevant to public
agencies are disclosures: (a) pursuant to the Information Practices
Act or discovery proceedings; (b) through other legal proceedings
or as otherwise required by law; (c) within the scope of discovery
m e y e r s I nave 15 Copyright 2012
statutes that limit disclosure of specified writings; (d) not required
by law and prohibited by formal action of an elected legislative body
of the local agency that retains the writings; and (e) to a
government agency that agrees to treat the disclosed material as
confidential, such that only persons authorized in writing by the
person in charge of the agency are permitted to obtain the
information, and the information obtained is used only for reasons
consistent with existing law.
H. Denying Records.
For all denials of written requests, and ideally, for all denials, a
public agency should provide requester a written denial indicating
what information will not be disclosed and why, and giving the
name and title of each person responsible for the denial if a
statutory exemption applies or disclosure of all or part of the
requested records is otherwise not required. ( §6253(d), 6255(b).)
Denials should cite applicable statutory exemptions. Whatever
other statutory exemptions also apply, denials should always cite
Section 6255.
Litigation To Enforce Rights Under The CPRA.
Any person may bring a lawsuit to enforce his or her right to inspect
or receive copies of public records under the CPRA. ( §6258.) If
the plaintiff "prevails" in litigation under the Act, the judge must
award court costs and reasonable attorney fees to the plaintiff.
( §6259(d).) A plaintiff "prevails" in litigation under the Act for
purposes of recovering attorney fees and costs if the filing of the
lawsuit motivates the public agency to release the requested
records. (Graham v. DaimlerChrysler Corp. (2004) 34 Cal. 41h 553;
Motorola Communications & Electronics, Inc. v. Dept. of General
Services (1997) 55 Cal. App. 4th 1340.) A plaintiff who partially
prevails in lawsuit (i.e. obtains only some of the records sought) is
still entitled to attorneys fees and costs. The entitlement to attorney
fees includes legal services involved in an appeal from the trial
court. A losing plaintiff shall pay court costs and reasonable
attorney fees to the public agency only if the court finds that the
plaintiff's case was "clearly frivolous." ( §6259(d).)
Legislative Intent and Common Sense.
In general, responses to requests for disclosure under the CPRA
should disclose all existing, reasonably identifiable, non - exempt
information to permit adequate access to information concerning
the conduct of the people's business. In upholding non - disclosure
m e y e r s I nave 16 Copyright 2012
of the names and addresses of airport noise complainants, the City
of San Jose court emphasized that the city already made available
substantial, detailed information regarding airport noise complaints,
and thus provided a comprehensive overview of the city's
performance of its airport noise complaint monitoring duties. (City
of San Jose v. Superior Court (1999) 74 Cal.App. 4th 1008, 1024.)
Remember that public agencies have a duty to assist any person
requesting public records. To assist the public agencies in
management and maintenance of records, it is recommended that
public agencies adopt records retention schedules.
m e y e r s I nave 17 Copyright 2012