THE PEOPLE’S BUSINESS:
A Guide to the California Public Records Act
ACKNOWLEDGEMENTS
AUTHORS OF THE PEOPLE’S BUSINESS
The League gratefully acknowledges the work of the Public Records Act Publication Committee, which
authored this guide. Each member devoted countless hours to this project, and the League sincerely thanks
each of them.
The League also thanks the following individuals for their assistance in reviewing and commenting on
drafts of this publication: Amy Albano, City Attorney, Thousand Oaks; Jason Alcala, Assistant City Attorney,
Livermore; Michael Jenkins, City Attorney, Diamond Bar, Hermosa Beach, Rolling Hills, and West Hollywood;
Randi Johl, City Clerk, Lodi; Michelle Marchetta Kenyon, City Attorney, Calistoga, Rohnert Park, and Moraga;
Colleen Nicol, City Clerk, Riverside; Lisa Pope, City Clerk, Malibu; Shalice Reynoso, City Clerk, Buena Park;
and Brian Weinberger, Consultant, Senate Local Government Committee.
In addition, the League thanks the law firms of Greines, Martin, Stein, & Richland and Best Best & Krieger
for their help with final edits, and a special thanks to Cindy Cekander of Best Best & Krieger for her
invaluable assistance.
LEAGUE STAFF
Patrick Whitnell
General Counsel
Kourtney Burdick
Deputy General Counsel
Rhonda Boglin
Legal Assistant
Gregory P. Priamos, Chair
City Attorney, Riverside
Timothy T. Coates
Greines, Martin, Stein, & Richland, LLP
Eric W. Danly
City Attorney, Cloverdale and Petaluma
Meyers Nave
Roxanne M. Diaz
City Attorney, Hidden Hills
Richards, Watson & Gershon
Shawn D. Hagerty
City Attorney, Santee
Best Best & Krieger
Jolie Houston
City Attorney, Los Altos
Berliner Cohen
Craig Labadie
City Attorney, Concord
Juli Christine Scott
Chief Assistant City Attorney, Burbank
Kristina R. Scott
Deputy City Attorney, Los Angeles
Eileen M. Teichert
City Attorney, Sacramento
Paul H. Zarefsky
Deputy City Attorney, San Francisco
I
THE PEOPLE’S BUSINESS:
A GUIDE TO THE PUBLIC RECORDS ACT
CH. 1: INTRODUCTION AND OVERVIEW
CH. 2: THE BASICS
CH. 3: RESPONDING TO A PUBLIC
RECORDS REQUEST
CH. 4: EXEMPTIONS
CH. 5: JUDICIAL REVIEW AND REMEDIES
CH. 6: RECORDS MANAGEMENT
THE PEOPLE’S BUSINESS:
A GUIDE TO THE CALIFORNIA PUBLIC RECORDS ACT
Copyright © 2008
League of California Cities
All rights reserved. This publication, or parts thereof, may not be reproduced in any form
without the permission of the League of California Cities.
II
TABLE OF CONTENTS
FOREWORD: ............................................................................................................................................. iv
CHAPTER 1: INTRODUCTION AND OVERVIEW
Fundamental Right of Access to Information.......................................................................................... 2
Fundamental Right of Privacy and Need for Efficient and Effective Government................................. 3
Achieving Balance .................................................................................................................................... 3
Proposition 59........................................................................................................................................... 3
Beyond the Law........................................................................................................................................4
CHAPTER 2: THE BASICS
Agencies Covered ....................................................................................................................................6
What Are Public Records?........................................................................................................................6
Who Can Request Records? ....................................................................................................................7
CHAPTER 3: RESPONDING TO A PUBLIC RECORDS REQUEST
Types of Requests................................................................................................................................... 10
Form of the Request............................................................................................................................... 11
Content of the Request .......................................................................................................................... 11
The Duty to Respond.............................................................................................................................. 11
Timing of the Response.......................................................................................................................... 11
Extending the Response Time................................................................................................................ 11
Assisting the Requester .........................................................................................................................12
Locating Records .................................................................................................................................... 12
Redacting Records.................................................................................................................................. 13
Types of Responses................................................................................................................................ 13
Waiver .....................................................................................................................................................13
No Duty to Create a Record or to Create a Privilege Log .....................................................................13
Timing of Disclosure ............................................................................................................................... 13
Fees......................................................................................................................................................... 14
CHAPTER 4: EXEMPTIONS
Overview of Exemptions ........................................................................................................................ 18
Specific Exemptions ...............................................................................................................................19
Architectural and Official Building Plans .......................................................................................19
Attorney Client Communications and Attorney Work Product ....................................................19
Code Enforcement Records...........................................................................................................20
Drafts............................................................................................................................................... 20
Election Information ....................................................................................................................... 21
Identity of Informants..................................................................................................................... 21
Law Enforcement Records............................................................................................................. 22
Library Circulation Records............................................................................................................ 25
Licensee Financial Information......................................................................................................25
Medical Privacy Laws..................................................................................................................... 25
Official Information Privilege..........................................................................................................27
Pending Litigation or Claims .......................................................................................................... 28
Personal Contact Information........................................................................................................ 29
Personnel Records .........................................................................................................................29
Public Contracting Documents......................................................................................................31
Real Estate Appraisals and Engineering Evaluations.................................................................... 32
Recipients of Public Services .........................................................................................................32
Taxpayer Information .....................................................................................................................33
Trade Secrets and Other Proprietary Information......................................................................... 33
Utility Customer Information.......................................................................................................... 33
Public Interest Exemption ......................................................................................................................34
Effect of Proposition 59 on Exemptions ................................................................................................ 35
CHAPTER 5: JUDICIAL REVIEW AND REMEDIES
Overview ................................................................................................................................................. 44
The Trial Court Process and Decision .................................................................................................... 44
Appellate Review.................................................................................................................................... 45
Attorney Fees and Costs........................................................................................................................ 46
CHAPTER 6: RECORDS MANAGEMENT
Public Meeting Records ......................................................................................................................... 50
Electronic Records.................................................................................................................................. 51
Electronic Discovery...............................................................................................................................52
Records Retention and Destruction Laws............................................................................................. 52
APPENDIX: Frequently Requested Information and Records ............................................................... 55
FOREWORD
The goal of this publication is to provide a comprehensive overview of the California Public
Records Act for local government officials and employees, the public and the news media. This
guide offers practical advice to assist local agencies in complying with the requirements of the Act
and other related state laws. The guide is focused on settled law and is not intended to resolve
emerging and unresolved legal issues.
The League thanks the following organizations representing diverse views and constituencies that
reviewed, or were given the opportunity to review, this publication:
This publication is current as of March, 2008. Updates to the publication responding to changes in
the Public Records Act and related laws including court interpretations are available at
www.cacities.org/opengov.
As used in this guide, “local agency” means all public agencies to which the Public Records Act
applies. This publication is not intended to provide legal advice. A local agency’s legal counsel is
responsible for advising its governing body and staff, and should always be consulted when legal
issues arise.
Additional copies of this publication as well as an individual table of “Frequently Requested
Information and Records” may be purchased by visiting CityBooks online at www.cacities.org/store.
Association of California Water Agencies
California Association of Sanitation Agencies
California Attorney General’s Office
California Common Cause
California District Attorneys Association
California First Amendment Coalition
California Newspaper Publishers Association
California Redevelopment Association
California School Boards Association
California Special Districts Association
California State Association of Counties
Californians Aware
City Clerks Association of California
Community College League of California
First Amendment Project
League of Women Voters of California
IV
FUNDAMENTAL RIGHT OF ACCESS
TO INFORMATION
FUNDAMENTAL RIGHT OF PRIVACY
AND NEED FOR EFFICIENT AND
EFFECTIVE GOVERNMENT
ACHIEVING BALANCE
PROPOSITION 59
BEYOND THE LAW
CHAPTER 1:
INTRODUCTION AND OVERVIEW
2 THE PEOPLE’S BUSINESS
Q
Chapter 1: Introduction and Overview
Q FUNDAMENTAL RIGHT OF ACCESS TO INFORMATION
The California Public Records Act
1
(the “Act”) is an indispensable component of California’s
commitment to open government. The purpose of the Act is to give the public access to information that
enables them to monitor the functioning of their government.
2
The Act’s fundamental precept is that
governmental records shall be disclosed to the public, upon request, unless there is a legal basis not to
do so.
The Act provides for two types of access. One is a right to inspect public records:
“Public records are open to inspection at all times during the office hours of the state or local
agency and every person has a right to inspect any public record, except as hereafter provided.”
3
The other is a right to prompt availability of copies of those records:
“Except with respect to public records exempt from disclosure by express provisions of law,
each state or local agency, upon a request for a copy of records that reasonably describes an
identifiable record or records, shall make the records promptly available to any person upon
payment of fees covering direct costs of duplication, or a statutory fee if applicable. Upon request,
an exact copy shall be provided unless impracticable to do so.”
4
These rights of access are by no means unlimited and do not extend to records that are exempt
from disclosure. In fact, the Act was the culmination of a 15-year effort by the Legislature to create a
comprehensive general records law that attempted to accumulate all the exemptions in one location.
Previously, one was required to look at the law governing the specific type of record in question in order to
determine its disclosability. The Act now expressly states or references other laws that are the sources of
legal authority permitting records to be withheld.
5
Practice Tip:
Express legal authority
is required to justify
denial of access
to public records.
The perception that
disclosure of a record
could lead to potential
embarrassment of the
local agency, alone, is
not a legal basis for
denying access.
THE PEOPLE’S BUSINESS
Q
Chapter 1: Introduction and Overview 3
Q FUNDAMENTAL RIGHT OF PRIVACY AND NEED FOR
EFFICIENT AND EFFECTIVE GOVERNMENT
Two recurring interests underlie many of the exemptions from disclosure. First, many exemptions under
the Act are based on protecting an individual’s fundamental right to privacy and permit withholding of,
for example, certain personnel or medical records.
6
If personal information is required from a person
(for example, a government employee or appointee, or an applicant for government employment/
appointment, as a precondition for the employment or appointment), a court would likely recognize a
privacy interest in such information.
7
However, if information is provided voluntarily in order to acquire a
benefit, the information relates to serious wrongdoing, or the information is associated with an applicant’s
qualifications, a court is less likely to recognize a privacy right.
8
Second, a number of exemptions are based on the government’s need to perform its assigned functions
in a reasonably efficient and effective manner, such as maintaining confidentiality of investigative records,
official information, pending litigation records, and preliminary drafts. In addition, a record may be withheld
whenever the public interest in nondisclosure clearly outweighs the public interest in disclosure.
9
The
deliberative process privilege combines these two interests in affording a measure of privacy to decision
makers and concurrently aiding in the efficiency and effectiveness of government.
10
Q ACHIEVING BALANCE
In enacting the California Public Records Act, the Legislature
struck a balance between two competing, fundamental
interests. The legislative findings declare that access to
information concerning the conduct of the people’s business
is a fundamental and necessary right for every person in
the state and that the Legislature is “mindful of the right of
individuals to privacy.”
11
The Act balances these competing
interests by preserving an “island of privacy upon the broad
sea of enforced disclosure.”
12
For the past forty years, courts
have also balanced these competing interests in deciding
whether to order disclosure of records.
13
In administering the
provisions of the Act, agencies must often balance the right
of public access against the right of privacy and the need for
governmental efficiency and effectiveness.
Q PROPOSITION 59
In November 2004, the voters approved Proposition 59, amending the California Constitution to include the
public’s right to access public records. “The people have the right of access to information concerning the
conduct of the people’s business, and, therefore, the meetings of public bodies and the writings of public
officials and agencies shall be open to public scrutiny.”
14
Proposition 59 expressly states that “[t]his subdivision does not repeal or nullify, expressly or by implication,
any constitutional or statutory exception to the right of access to public records…that is in effect on the
effective date of this subdivision, including, but not limited to, any statute protecting the confidentiality of
law enforcement and prosecution records.”
15
The courts have not yet squarely ruled whether Proposition 59
provides the public with a greater right of access than is provided under the Act.
4 THE PEOPLE’S BUSINESS
Q
Chapter 1: Introduction and Overview
Q BEYOND THE LAW
The Act itself provides that “except as otherwise prohibited by
law, a state or local agency may adopt requirements for itself that
allow for faster, more efficient, or greater access to records than
prescribed by the minimum standards set forth in this chapter.”
16
A
number of local agencies have gone beyond the mandates of the
Act by adopting their own “sunshine ordinances” to afford greater
public access.
To encourage local agencies’ compliance, the Act provides for a
mandatory award of court costs and attorney’s fees to a prevailing
plaintiff. A plaintiff need not obtain all of the requested records
in order to be the prevailing party in litigation. A plaintiff is also
considered the prevailing party if the lawsuit ultimately motivated
the agency to provide the requested records.
17
This publication is intended to help local agencies navigate the
Act, comply with the spirit and intent of the Act, and interpret the
Act in furtherance of open government. This publication is further
intended to help members of the public understand their rights of access to public information, as well as
the limitations on those rights.
Endnotes
1 Gov. Code, §§ 6250 et seq. All code references are to the California Code unless otherwise indicated.
2 U.S. Dept. of Justice v. Reporters Com. for Freedom of Press (1989) 489 U.S. 749; CBS, Inc. v. Block (1986) 42 Cal.3d
646; Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325.
3 Gov. Code, § 6253, subd. (a).
4 Gov. Code, § 6253, subd. (b).
5 Gov. Code, §§ 6254, subd. (k), 6276.02 et seq.
6 Cal. Const., art. I, § 1; Gov. Code, §§ 6254, subd. (c), 6254, subd. (k), 6255;
New York Times Co. v. Superior Court
(1990) 218 Cal.App.3d 1579.
7 San Gabriel Tribune v. Superior Court (1983) 143 Cal.App.3d 762; Braun v. City of Taft (1984) 154 Cal.App.3d 332;
Wilson v. Superior Court (1996) 51 Cal.App.4th 1136; Cal. First Amend. Coalition v. Superior Court (1998) 67 Cal.
App.4th 159; Eskaton Monterey Hospital v. Myers (1982) 134 Cal.App.3d 788.
8 Calif. State Univ., Fresno Assn. v. Superior Court (2001) 90 Cal.App.4th 810; San Gabriel Tribune v. Superior Court
(1983) 143 Cal.App.3d 762; Register Div. Freedom Newspaper, Inc. v. County of Orange (1984) 158 Cal.App.3d 893;
CBS, Inc. v. Block (1986) 42 Cal.3d 646; Eskaton Monterey Hospital v. Myers (1982) 134 Cal.App.3d 788; BRV, Inc. v.
Superior Court (2006) 143 Cal.App.4th 742.
9 Gov. Code, § 6255.
10 See “Deliberative Process Privilege,” p. 35.
11 Gov. Code, § 6250; Cal. Const., art. I, § 3, subd. (b)(3).
12 Black Panther Party v. Kehoe (1974) 42 Cal.App.3d 645.
13 Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325; Wilson v. Superior Court (1996) 51 Cal.App.4th 1136;
American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307; Britt v. Superior Court (1978) 20 Cal.3d 844.
14 Cal. Const., art. I, § 3, subd. (b)(1).
15 Cal. Const., art. I, § 3, subd. (b)(5).
16 Gov. Code, § 6253, subd. (e).
17 Roberts v. City of Palmdale (1993) 19 Cal.App.4th 469; Belth v. Garamendi (1991) 232 Cal.App.3d 896.
CHAPTER 2:
THE BASICS
AGENCIES COVERED
WHAT ARE PUBLIC RECORDS?
WHO CAN REQUEST RECORDS?
6 THE PEOPLE’S BUSINESS
Q
Chapter 2: The Basics
Q AGENCIES COVERED
The Act applies to state and local agencies. For purposes of the Act, a state agency is defined to mean
“every state office, officer, department, division, bureau, board and commission or other state body or
agency.”
1
A local agency includes a county, city (whether general law or chartered), city and county, school
district, municipal corporation, special district, community college district or political subdivision.
2
This
encompasses any committees, boards, commissions or departments of those entities as well. Nonprofit
entities that are legislative bodies under the Brown Act are also subject to the Act. Private nonprofit entities
that are delegated legal authority to carry out public functions are also subject to the Act if they are funded
with public money.
3
The Act does not apply to the Legislature or the judicial branch.
4
The Legislative
Open Records Act covers the Legislature.
5
Most court records are disclosable as
a matter of public right of access to courts under the First Amendment of the
United States Constitution.
6
Q WHAT ARE PUBLIC RECORDS?
The Act defines “public records” as “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.”
7
A writing is defined as “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.”
8
The definition of a public record is quite broad and is intended to encompass much more than written or
printed documents. A public record is subject to disclosure under the Act “regardless of its physical form or
characteristics.”
9
For example, email messages and other electronic information are public records if they
otherwise meet the statutory definition.
THE PEOPLE’S BUSINESS
Q
Chapter 2: The Basics 7
Over the years the courts have both broadened and limited the
scope of the definition of a “public record.” First, it is clear that
the term “public records” encompasses more than simply those
documents that public officials are required by law to keep as
official records. Courts have held that a public record is one that
is “necessary or convenient to the discharge of [an] official duty”
such as a status memorandum provided to the City Manager on
a pending project.
10
Second, courts have observed that merely
because the writing is in the possession of the local agency, it is not
automatically a public record. It must relate to the conduct of the
public’s business.
11
For example, records containing purely personal
information unrelated to the conduct of the people’s business,
such as an employee’s personal address list or grocery list, are
considered outside the scope of the Act.
12
Q WHO CAN REQUEST RECORDS?
All “persons” have the right to inspect and copy disclosable public records. A “person” need not be
a resident of California or a citizen of the United States to make use of the Act.
13
“Persons” include
corporations, partnerships, limited liability companies, firms or associations.
14
Often requesters include
persons who have filed claims or lawsuits against the government, or who are investigating the possibility
of doing so, or who just want to know what their government officials are up to. Local agencies and their
officials are entitled to access public records on the same basis as any other person.
15
Further, local agency
officials may access public records of their own agency that are otherwise exempt when authorized to
do so as part of their official duties.
16
With certain exceptions, neither the media nor a person who is the
subject of a public record has any greater right of access to public records than any other person.
17
8 THE PEOPLE’S BUSINESS
Q
Chapter 2: The Basics
Endnotes
1 Gov. Code, § 6252, subd. (f). Excluded from the definition of state agency are those agencies provided for in article
IV (except section 20(k)) and article VI of the Cal. Constitution.
2 Gov. Code, § 6252, subd. (a).
3 Gov. Code, § 6252, subd. (a), 85 Ops.Cal.Atty.Gen. 55 (2002).
4 Gov. Code, § 6252, subds. (a), (b);
Mack v. State Bar of Cal. (2001) 92 Cal.App.4th 957.
5 Gov. Code, § 1070
6 Pantos v. City and County of San Francisco (1984) 151 Cal.App.3d 258; Champion v. Superior Court (1988) 201 Cal.
App.3d 777
7 Gov. Code, § 6252, subd. (e).
8 Gov. Code, § 6252, subd. (g).
9 Gov. Code, § 6252, subd. (e).
10 Braun v. City of Taft (1984) 154 Cal.App.3d 332; San Gabriel Tribune v. Superior Court (1983) 143 Cal.App.3d 762.
11 Gov. Code, § 6252, subd. (e);
Braun v. City of Taft (1984) 154 Cal.App.3d 332; San Gabriel Tribune v. Superior Court
(1983) 143 Cal.App.3d 762.
12 San Gabriel Tribune v. Superior Court (1983) 143 Cal.App.3d 762.
13 Gov. Code, § 6252, subd. (c);
Connell v. Superior Court (1997) 56 Cal.App.4th 601.
14 Gov. Code, § 6252, subd. (c).
15 Gov. Code, § 6252.5;
Los Angeles Unified School Dist. v. Superior Court (2007) 151 Cal.App.4th 759.
16 Gov. Code, § 6252, subd. (b). See also Gov. Code, § 54957.2.
17 Marylander v. Superior Court (2002) 81 Cal.App.4th 1119; Los Angeles Police Dept. v. Superior Court (1977) 65 Cal.
App.661. See “Information That Must Be Disclosed,” p. 22; “Requests for Journalistic or Scholarly Purposes,” p. 24.
TYPES OF REQUESTS
FORM OF THE REQUEST
CONTENT OF THE REQUEST
THE DUTY TO RESPOND
TIMING OF THE RESPONSE
EXTENDING THE RESPONSE TIME
ASSISTING THE REQUESTER
LOCATING RECORDS
REDACTING RECORDS
TYPES OF RESPONSES
WAIVER
NO DUTY TO CREATE A RECORD
OR TO CREATE A PRIVILEGE LOG
TIMING OF DISCLOSURE
FEES
CHAPTER 3:
RESPONDING TO A PUBLIC
RECORDS REQUEST
10 THE PEOPLE’S BUSINESS
Q
Chapter 3: Responding to a Public Records Request
Q TYPES OF REQUESTS
There are two ways to gain access to a public record – inspecting the record at the local agency’s offices,
or obtaining a copy from the local agency. The local agency may not dictate to the requester which option
must be used. That is the requester’s decision. Indeed, a requester does not have to choose between
inspection and copying but instead can choose both options. For example, a requester may first inspect a
set of records, and then, based on that review, decide which records should be copied.
A requester may inspect public records during the local agency’s regular office hours.
1
This does not mean
that a requester has a right to demand to see a record and immediately gain access to it. The right to
inspect is constrained by an implied rule of reason to protect records against theft, mutilation, or accidental
damage, prevent interference with the orderly functioning of the office, and generally avoid chaos in record
archives.
2
Moreover, the agency’s time to respond to an inspection request is governed by the deadlines set
forth below, which give the agency a reasonable opportunity to search for, collect, and, if necessary, redact
exempt information prior to the records being disclosed in an inspection.
3
If a copy of a record has been requested, the local agency generally must provide an exact copy except
where it is “impracticable” to do so.
4
The term “impracticable” does not necessarily mean that compliance
with the public records request would be inconvenient or time-consuming to the local agency. Rather,
it means that the agency must provide the best or most complete copy of the requested record that is
reasonably possible.
5
As with the right to inspect public records, the same rule of reasonableness applies
to the right to obtain copies of records. Thus, the custodian may impose reasonable restrictions on general
requests for copies of voluminous classes of documents.
6
The Act does not provide for a standing or continuing request for documents that may be generated in the
future. However, the Brown Act provides that a person may make a request to receive a mailed copy of
the agenda, or all documents constituting the agenda packet for any meeting of the legislative body. This
request shall be valid for the calendar year in which it is filed.
7
Practice Tip:
If the public records request
does not make clear whether
the requester wants to
inspect or obtain a copy of
the record or records being
sought, the local agency
should seek clarification
from the requester without
delaying the process of
searching for, collecting, and
redacting or “whiting out”
exempt information in the
records.
THE PEOPLE’S BUSINESS
Q
Chapter 3: Responding to a Public Records Request 11
Q FORM OF THE REQUEST
A public records request may be made in writing or orally, in person or by phone.
8
Further, a written request
may be made in paper or electronic form and may be mailed, emailed, faxed, or personally delivered. A
local agency may ask, but not require, that the requester put an oral request in writing. In general, a written
request is preferable to an oral request because it provides a record of when the request was made and
what was requested, and helps the agency respond in a more timely and thorough manner.
Q CONTENT OF THE REQUEST
A public records request must reasonably describe an identifiable record or records.
9
It must be focused
and specific
10
and clear enough so that the agency can decipher what record or records are being sought.
11
A request that is so open-ended that it amounts to asking for all of a department’s files is not reasonable.
If a request is not clear or is overly broad, the local agency still has a duty to assist the requester in
reformulating the request to make it more clear or less broad.
12
A request does not need to precisely identify the record or records being sought. For example, a requester
may not know the exact date of a record or its title or author, but if the request is descriptive enough for
the local agency to understand which records fall within its scope, the request is reasonable. Requests may
identify writings somewhat generally by their content.
13
No magic words need be used to trigger the local agency’s obligation to respond to a request for records.
The content of the request must simply indicate that a public record is being sought. Occasionally, a
requester may incorrectly refer to the federal Freedom of Information Act (“FOIA”) as the legal basis for
the request. This does not excuse the agency from responding if the request seeks public records. A public
records request need not state its purpose or the use to which the record will be put by the requester.
14
A
requester does not have to justify or explain the reason for exercising a fundamental right.
15
Q THE DUTY TO RESPOND
Under no circumstances should a local agency simply not respond to a public records request. Even if the
request does not reasonably describe an identifiable record, the requested record does not exist, or the
record is exempt from disclosure, the agency must respond.
16
Q TIMING OF THE RESPONSE
Time is critical in responding to public records requests. A local agency must respond promptly, but no
later than ten calendar days from receipt of the request, to notify the requester whether records will be
disclosed.
17
If the request is received after business hours or on a weekend or holiday, the next business
day may be considered the date of receipt. The ten-day response period starts with the first calendar day
after the date of receipt.
18
If the tenth day falls on a weekend or holiday, the next business day is considered
the deadline for responding to the request.
19
The time limit for responding to a public records request is not
necessarily the same as the time within which the records must be disclosed to the requester.
20
Q EXTENDING THE RESPONSE TIME
A local agency may extend the ten-day response period for up to 14 additional calendar days because of
the need:
• To search for and collect the requested records from field facilities or other establishments separate
from the office processing the request;
• To search for, collect, and appropriately examine a voluminous amount of separate and distinct records
demanded in a single request;
Practice Tip:
A public records request is
different than a question or
series of questions posed
to local agency officials or
employees. The Act creates
no duty to answer written
or oral questions submitted
by members of the public.
But if an existing and readily
available record contains
information that would
directly answer a question,
from a customer service
standpoint, it is advisable to
either answer the question
or provide the record in
response to the question.
Practice Tip:
Though not legally required,
a local agency may find it
convenient to use a written
form for public records
requests, particularly for
those instances when a
requester “drops in” to an
office and asks for one or
more records. The local
agency cannot require
the requester to use a
particular form, but having
the form and even having
agency staff assist with
filling out the form may help
agencies better identify the
information sought, follow
up with the requester using
the contact information
provided, and provide more
effective assistance to the
requester.
12 THE PEOPLE’S BUSINESS
Q
Chapter 3: Responding to a Public Records Request
• To consult with another agency having substantial interest
in the request (such as a state agency), or among two or
more components of the local agency (such as two city
departments) with substantial interest in the request; and/or
• In the case of electronic records, to compile data, write
programming language or a computer program, or to
construct a computer report to extract data.
21
No other reasons justify an extension of time to respond to a
public records request. For example, a local agency may not
extend the time on the basis that it has other pressing business, or that the employee most knowledgeable
about the records sought is on vacation or otherwise unavailable.
If a local agency exercises its right to extend the response time beyond the ten-day period, it must do so
in writing, stating the reasons for the extension and the anticipated date of the response within the 14-day
extension period.
22
The agency does not need the consent of the requester to extend the time for response.
Q ASSISTING THE REQUESTER
Local agencies must provide assistance to requesters who are having difficulty making a focused and
effective request.
23
To the extent reasonable under the circumstances, a local agency must:
• Assist the requester in identifying records that are responsive to the request or the purpose of the
request, if stated;
• Describe the information technology and physical location in which the records exist; and
• Provide suggestions for overcoming any practical basis for denying access to records.
24
Alternatively, the local agency may satisfy its duty to assist the requester if it gives the requester an
index of records.
25
Ordinarily an inquiry into a requester’s purpose in seeking access to a public record is
inappropriate,
26
but such an inquiry may be proper if it will help assist the requester in making a focused
request that reasonably describes identifiable records.
27
Q LOCATING RECORDS
A local agency must make a reasonable effort to search for and locate the record or records that have been
requested.
28
No bright-line test exists to determine whether an effort is reasonable. That determination
will depend on the facts and circumstances surrounding each request. In general, upon the local agency’s
receipt of a public records request, those persons or offices within the agency that would most likely be in
possession of responsive records should be consulted in an effort to
locate such records.
The right to access public records is not without limits. A local agency
is not required to perform a “needle in a haystack” search to locate
the record or records sought by the requester.
29
Nor is it compelled
to undergo a search that will produce a “huge volume” of material
in response to the request.
30
On the other hand, an agency typically
will endure some burden – at times, a significant burden – in its
records search. Usually that burden alone will be insufficient to justify
noncompliance with the request.
31
Nevertheless, if the request imposes
a substantial enough burden, an agency may decide to withhold the
requested records on the basis that the public interest in nondisclosure
clearly outweighs the public interest in disclosure.
32
Practice Tip:
If a local agency is having
difficulty responding to a
public records request within
the 10-day response period,
and there are not grounds
to extend the response
period for an additional 14
days, the agency may obtain
an extension by consent
of the requester. Often a
requester will cooperate
with the agency, particularly
if the requester believes the
agency is acting reasonably
and conscientiously in
processing the request. It is
also advisable to document
in writing any extension
agreed to by the requester.
THE PEOPLE’S BUSINESS
Q
Chapter 3: Responding to a Public Records Request 13
Q REDACTING RECORDS
Some records contain information that must be disclosed, along with information that is exempt from
disclosure. A local agency has a duty to provide such a record to the requester in redacted form if the
nonexempt information is “reasonably segregable” from that which is exempt,
33
unless the burden of
redacting the record becomes too great.
34
What is reasonably segregable will depend on the circumstances.
If exempt information is inextricably intertwined with nonexempt information, the record may be withheld
in its entirety.
35
Q TYPES OF RESPONSES
After conducting a reasonable search for requested records, a local agency has only a limited number of
possible responses. If a search yields no responsive records, the agency must inform the requester. If the
agency locates a responsive record, it must decide whether to:
• Disclose the record;
• Withhold the record; or
• Disclose the record in redacted form.
In responding to a written public records request, if the local agency does not have the record or has
decided to withhold it, or if the requested record is disclosed in redacted form, the agency’s response must
be in writing, and must identify by name and title each person responsible for the decision.
36
If the record is withheld in its entirety or provided to the requester in redacted form, the local agency must
state the legal basis under the Act for its decision not to comply fully with the request.
37
Statements like
“we don’t give up those types of records” or “our policy is to keep such records confidential” will not suffice.
Q WAIVER
Generally, whenever a local agency discloses an otherwise exempt public record to any member of the
public, the disclosure constitutes a waiver of most of the exemptions contained in the Act for all future
requests for the same information.
38
There are a number of statutory exceptions to the waiver provisions,
including disclosures made through discovery or other legal proceedings and disclosures to another
governmental agency that agrees to treat the disclosed material as confidential.
39
Q NO DUTY TO CREATE A RECORD OR TO CREATE A PRIVILEGE LOG
A local agency has no duty to create a record that does not exist at the time of the request.
40
There is also
no duty to reconstruct a record that was lawfully discarded prior to receipt of the request.
The Act does not require a local agency to create a “privilege log” or list that identifies the specific records
being withheld.
41
The response only needs to identify the legal grounds for nondisclosure. If the agency
creates a privilege log for its own use, however, that document may be considered a public record and may
be subject to disclosure in response to a later public records request.
Q TIMING OF DISCLOSURE
Although the law precisely defines the time for responding to a public records request, it is less precise in
defining the deadline for disclosing records. The Act simply states that copies of records must be provided
“promptly.”
42
As for when a requester must be given access to inspect records, the Act is silent, but it is
generally assumed that the same standard of promptness applies. Further, the Act states that nothing
therein “shall be construed to permit an agency to delay or obstruct the inspection or copying of public
records,”
43
which signals the importance of promptly disclosing records to the requester.
Practice Tip:
Care should be taken
in deciding whether to
disclose, withhold, or redact
a record. When a public
records request presents
novel or complicated
issues or implicates policy
concerns or third party
rights, it is advisable to
consult with the local
agency’s legal counsel
before making this decision.
Practice Tip:
A local agency should
always document that it
is supplying the record to
the requester. The fact and
sufficiency of the response
may become points of
dispute with the requester.
Any response that denies
in whole or in part an oral
public records request
should be put in writing.
14 THE PEOPLE’S BUSINESS
Q
Chapter 3: Responding to a Public Records Request
Neither the ten-day response period
nor the additional fourteen-day
extension may be used to delay or
obstruct the inspection or copying
of public records.
44
For example,
requests for commonly disclosed
records that are held in a manner
that allows for prompt disclosure
should not be withheld because of the
statutory response period.
As a practical matter, records often
are disclosed at the same time the
local agency responds to the request.
But in some cases, that time frame for
disclosure is not feasible because of
the volume of records encompassed
by the request.
Q FEES
The public records process is in many respects cost-free to the requester. No fees may be charged to
reimburse the local agency’s costs incurred to search for a record, review a record, redact a record, assist a
requester in formulating a request, or respond to a request. Nor may the local agency charge a fee for the
requester’s inspection of a record, even if staff time is expended in the inspection. For example, if concern
for the security of records requires that an agency employee sit with the requester during the inspection,
or if a record must be redacted before it can be inspected, the agency may not bill the requester for this
expenditure of staff time.
The local agency may charge a fee for the direct costs of duplicating a record when the requester is
seeking a copy,
45
or it may charge a statutory fee, if applicable.
46
Direct costs of duplication include costs of
reproduction, and conceivably the cost of staff time expended in making a copy of the record.
47
An agency
may require payment in advance before providing the requested copies;
48
however, no payment can be
required merely to look at a record where copies are not sought.
Although permitted to charge a fee for duplication costs, a local agency may choose to reduce or waive
that fee.
49
For example, the agency might waive the fee in a particular case because the requester
is indigent; or it might generally choose to waive fees below a certain dollar threshold because the
administrative costs of collecting the fee would exceed the revenue to be collected. An agency may also
set a customary copying fee for all requests that is below the amount that reflects actual duplication costs.
Practice Tip:
When faced with a
voluminous public records
request, a local agency
has numerous options
– for example, asking the
requester to narrow the
request, asking the requester
to consent to a later
deadline for responding to
the request, and providing
responsive records (whether
redacted or not) on a
“rolling” basis, rather than
in one complete package.
It is sometimes possible for
the agency and requester
to work cooperatively to
streamline a public records
request, with the result that
the requester obtains the
records or information the
requester truly wants, while
the burdens on the agency in
complying with the request
are reduced.
Practice Tip:
The local agency may wish
to maintain a separate file
for copies of records that
have been withheld and
those produced (including
redacted versions) in
the event there is a legal
challenge to the decision
regarding the disclosure.
THE PEOPLE’S BUSINESS
Q
Chapter 3: Responding to a Public Records Request 15
Endnotes
1 Gov. Code, § 6253, subd. (a).
2 Bruce v. Gregory (1967) 65 Cal.2d 666; Rosenthal v. Hansen (1973) 34 Cal.App.3d 754; 64 Ops.Cal.Atty.Gen. 317
(1981).
3 See “Timing of the Response,” p. 11.
4 Gov. Code, § 6253, subd. (b).
5 Rosenthal v. Hansen (1973) 34 Cal.App.3d 754.
6 Rosenthal v. Hansen (1973) 34 Cal.App.3d 754; 64 Ops.Cal.Atty.Gen. 317 (1981).
7 Gov. Code, § 54954.1; see also Gov. Code § 65092 [standing request for notice of public hearing], Cal. Code Regs.,
tit. 14, ch. 3, §§ 15072, 15082 and 15087 [standing requests for notice related to environmental documents].
8 Los Angeles Times v. Alameda Corridor Transportation Authority (2001) 88 Cal.App.4th 1381.
9 Gov. Code, § 6253, subd. (b).
10 Rogers v. Superior Court (1993) 19 Cal.App.4th 469.
11 Cal. First Amend. Coalition v. Superior Court (1998) 67 Cal.App.4th 159.
12 See “Assisting the Requester,” p. 12.
13 Cal. First Amend. Coalition v. Superior Court (1998) 67 Cal.App.4th 159.
14 See Gov. Code, § 6257.5; ACLU Foundation v. Deukmejian (1982) 32 Cal.3d 440.
15 Gov. Code, § 6250; Cal. Const., article I, § 3.
16 Gov. Code, § 6253.
17 Gov. Code, § 6253, subd. (c).
18 Civ. Code, § 10.
19 Civ. Code, § 11.
20 See “Timing of Disclosure,” p. 13.
21 Gov. Code, § 6253, subds. (c)(1) - (4).
22 Gov. Code, § 6253, subd. (c).
23 Gov. Code, § 6253.1;
State Board of Equalization v. Superior Court (1992) 10 Cal.App.4th 1177.
24 Gov. Code, § 6253.1, subds. (a)(1) - (3).
25 Gov. Code, § 6253.1, subd. (d)(3).
26 See Gov. Code, § 6257.5.
27 Gov. Code, § 6253.1, subd. (a).
28 Cal. First Amend. Coalition v. Superior Court (1998) 67 Cal.App.4th 159.
29 Cal. First Amend.Coalition v. Superior Court (1998) 67 Cal.App.4th 159.
30 Cal. First Amend. Coalition v. Superior Court (1998) 67 Cal.App.4th 159.
31 Cal. First Amend. Coalition v. Superior Court (1998) 67 Cal.App.4th 159.
32 ACLU Foundation v. Deukmejian (1982) 32 Cal.3d 440; see also 64 Ops. Cal.Atty.Gen. 317 (1981).
33 Gov. Code, § 6253, subd. (a); ACLU Foundation v. Deukmejian (1982) 32 Cal.3d. 440.
34 ACLU Foundation v. Deukmejian (1982) 32 Cal.3d. 440.
35 ACLU Foundation v. Deukmejian (1982) 32 Cal.3d. 440.
36 Gov. Code, §§ 6253, subd. (d), 6255, subd. (b).
37 Gov. Code, § 6255, subd. (b).
38 Gov. Code, § 6254.5; 86 Ops.Cal.Atty.Gen. 132 (2003).
39 Gov. Code, § 6254.5.
16 THE PEOPLE’S BUSINESS
Q
Chapter 3: Responding to a Public Records Request
40 Gov. Code, § 6252, subd. (e); Haynie v. Superior Court (2001) 26 Cal.4th 1061; 71 Ops.Cal.Atty.Gen. 235 (1988).
41 Haynie v. Superior Court (2001) 26 Cal.4th 1061.
42 Gov. Code, § 6253, subd. (b); 88 Ops.Cal.Atty.Gen. 153 (2005); 89 Ops.Cal.Atty.Gen. 39 (2006).
43 Gov. Code, § 6253, subd. (d).
44 Gov. Code, § 6253, subd (d).
45 Gov. Code, § 6253, subd. (b).
46 Gov. Code, § 6253, subd. (b); 85 Ops.Cal.Atty.Gen. 225 (2002); see, e.g., Gov. Code, § 81008.
47 North County Parents Organization v. Dept. of Education (1994) 23 Cal.App.4th 144.
48 Gov. Code, § 6253, subd. (b).
49 Gov. Code, § 6253, subd. (e);
North County Parents Organization v. Dept. of Education (1994) 23 Cal.App.4th 144.
CHAPTER 4:
EXEMPTIONS
OVERVIEW OF EXEMPTIONS
SPECIFIC EXEMPTIONS
Architectural and Official Building Plans
Attorney Client Communications
and Attorney Work Product
Code Enforcement Records
Drafts
Election Information
Identity of Informants
Law Enforcement Records
Library Circulation Records
Licensee Financial Information
Medical Privacy Laws
Official Information Privilege
Pending Litigation or Claims
Personal Contact Information
Personnel Records
Public Contracting Documents
Real Estate Appraisals and Engineering Evaluations
Recipients of Public Services
Taxpayer Information
Trade Secrets and Other Proprietary Information
Utility Customer Information
PUBLIC INTEREST EXEMPTION
EFFECT OF PROPOSITION 59
ON EXEMPTIONS
18 THE PEOPLE’S BUSINESS
Q
Chapter 4: Exemptions
Q OVERVIEW OF EXEMPTIONS
The underlying purpose of the Act is to assure broad access to public records. Any grounds for denying
access to public records must be found in the enumerated exemptions of the Act.
1
The Act’s general policy
of disclosure can only be accomplished if the exemptions are narrowly construed. As a result, courts—both
as a matter of statutory interpretation and now by constitutional mandate—construe exemptions under the
Act narrowly.
2
This means that in responding to a record request, the local agency must allow access to the record unless
it can identify an exemption within the Act that would justify nondisclosure of the information. Moreover,
in circumstances where a record may contain some information that is subject to an exemption and other
information that is not, the local agency must produce the record, but may redact the information that is
exempt.
As discussed below, many of the exemptions are very specific and pertain to particular types of public
records such as certain personnel, police, or medical records. Two exemptions, however, have a broader
scope and may apply even if a record does not fall within any other exemption contained in the Act. First,
the Act exempts records that are otherwise exempt from disclosure under other statutes.
3
Second, the
Act’s “public interest” or “catchall” provision allows nondisclosure where the local agency demonstrates on
the facts of a particular case that the public interest in nondisclosure clearly outweighs the public interest
in disclosure.
4
Practice Tip:
When evaluating a record
for purposes of determining
whether it falls within
any exemption under the
Act, a local agency should
always bear in mind that
it might also be subject
to nondisclosure under
other statutes such as the
Evidence Code or Penal
Code.
5
THE PEOPLE’S BUSINESS
Q
Chapter 4: Exemptions 19
Q SPECIFIC EXEMPTIONS
Architectural and Official Building Plans
Certain of the materials submitted by third parties to local agencies may qualify for
federal copyright protection.
6
In addition, local agencies may claim a copyright in
many of their own records.
The Act exempts records, “the disclosure of which is exempted or prohibited
pursuant to federal or state law….”
7
Federal copyright law defines “architectural
work” as the “design of a building as embodied in any tangible medium of expression,
including building, architectural plans, or drawings.”
8
The law includes architectural
plans as “original works of authorship” which have an automatic federal copyright
protection.
9
Architectural plans are therefore protected under the federal copyright
law and may be inspected, but cannot be copied without the permission of the
owner. “Fair use of copyrighted materials” does not require disclosure or the right to
copy architectural plans. The Fair Use rule is a defense to a copyright infringement
action; it is not proper to use the Fair Use rule offensively in order to obtain
copyrighted materials.
10
State law addresses inspection and duplication of building plans and authorizes
inspection of the plans by the public.
11
The official copy of building plans maintained
by a local agency’s building department may be inspected, but may not be copied
without first requesting the written permission of the licensed or registered professional who signed
the document and the original or current property owner. A request for written permission from the
professional must be accompanied by a statutorily prescribed affidavit signed by the person requesting
to make copies, attesting that the copy of the plans shall only be used for the maintenance, operation
and use of the building, that the drawings are instruments of professional service and are incomplete
without the interpretation of the certified, licensed or registered professional of record, and that a licensed
architect who signs and stamps plans, specifications, reports, or documents shall not be responsible for
damage caused by subsequent unauthorized changes to or uses of those plans.
12
After receiving this
required information, the professional cannot unreasonably withhold written permission to make copies
of the plans.
13
Additionally, the California Attorney General has determined that interim grading documents, including
geology, compaction, and soils reports are public records.
14
Attorney Client Communications and Attorney Work Product
The Act specifically exempts from disclosure “records, the disclosure of which is exempted or prohibited
pursuant to federal or state law, including, but not limited to, the provisions of the Evidence Code relating
to privilege.”
15
The Act’s exemptions protect attorney client privileged communications and attorney work
product, as well as, more broadly, other work product prepared for use in pending litigation or claims.
16
Even after litigation is concluded, an attorney’s billing entries remain exempt from disclosure under
the attorney client privilege or attorney work product doctrine insofar as they describe an attorney’s
impressions, conclusions, opinions, legal research or strategy.
17
Similarly, retainer agreements between
a local agency and its attorneys may constitute confidential communications that fall within the attorney
client privilege.
18
A local agency may waive the privilege and elect to produce the agreements.
19
Only the
local agency’s governing board may waive the privilege.
20
Practice Tip:
These statutory
requirements do not
prohibit duplication of
reduced copies of plans
that have been distributed
to local agency decision-
making bodies as part of
the agenda materials for
a public meeting.
20 THE PEOPLE’S BUSINESS
Q
Chapter 4: Exemptions
Code Enforcement Records
Local agencies may pursue code enforcement through administrative or criminal proceedings, or a
combination of both. Records of code enforcement cases for which criminal sanctions are sought may
be subject to the same disclosure rules as police and other law enforcement records, including the
rules for investigatory records and files, as long as there is a concrete and definite prospect of criminal
enforcement.
21
Records of code enforcement cases being prosecuted administratively do not qualify as
law enforcement records.
22
However, some administrative code enforcement information, such as names
and contact information of complainants, may be exempt from disclosure under the official information
privilege, the identity of informant privilege, or the public interest exemption.
23
Drafts
The Act exempts from disclosure “[p]reliminary drafts, notes, or interagency or intra-agency memoranda
that are not retained by the public agency in the ordinary course of business, if the public interest in
withholding those records clearly outweighs the public interest in disclosure.”
24
The purpose of the
“drafts” exemption is to provide a measure of privacy for writings concerning pending agency action.
The exemption was adapted from the federal Freedom of Information Act (“FOIA”), which exempts from
disclosure “inter-agency or intra-agency memorandums or letters which would not be available by law to a
party other than an agency in litigation with the agency.”
25
The California Supreme Court has observed that
the FOIA “memorandums” exemption is based on the policy of protecting the decision making processes
of government agencies, and in particular the frank discussion of legal or policy matters that might be
inhibited if subjected to public scrutiny.
26
The courts have held that the “drafts” exemption in the Act has essentially the same purpose as the
“memorandums” exemption in the FOIA, and that the “drafts” exemption protects deliberative materials
produced in the process of making agency decisions, but not factual materials.
27
Some courts have
distinguished between pre-decisional advisory opinions, recommendations and policy deliberations,
which are exempt, and memoranda of factual material or purely factual material contained in and
severable from deliberative memoranda.
28
However, in discussing the closely-related deliberative process
privilege, which is also based on the FOIA “memorandums” exemption, the California Supreme Court
has observed that the fact/opinion distinction may be misleading because even purely factual material
may expose the deliberative process. According to the California Supreme Court, the key question under
the FOIA “memorandums” exemption is whether the disclosure of materials would expose an agency’s
decision making process in such a way as to discourage candid discussion within the agency and thereby
undermine the agency’s ability to perform its functions.
29
To qualify for the “drafts” exemption:
• the record must be a preliminary draft, note, or memorandum;
• that is not retained by the local agency in the ordinary course of business; and
• the public interest in withholding the record must clearly outweigh the public interest in disclosure.
30
The courts have observed that preliminary materials that are not customarily discarded or that have not
in fact been discarded pursuant to policy or custom must be disclosed.
31
What distinguishes the “drafts”
exemption from the deliberative process privilege is a focus on whether the records containing deliberative
information are normally retained by the local agency. If the records are normally retained, they do not
qualify for the exemption. This is in keeping with the purpose of the FOIA “memorandums” exemption of
prohibiting the “secret law” that would result from confidential memos retained by local agencies to guide
their decision-making.
Practice Tip:
By adopting written policies
or developing consistent
practices of discarding
preliminary deliberative
writings, local agencies may
facilitate candid internal
policy debate. Such policies
and practices may exempt
from disclosure even
preliminary drafts that have
not yet been discarded, so
long as the drafts are not
maintained by the local
agency in the ordinary course
of business, and the public
interest in nondisclosure
clearly outweighs the public
interest in disclosure.
THE PEOPLE’S BUSINESS
Q
Chapter 4: Exemptions 21
Election Information
Voter Registration Information
Voter registration information, including the home street address, telephone number, email address,
pr
ecinct number, or other number given by the Secretary of State, is confidential and cannot be disclosed
except as specified in the Elections Code. Similarly, the signature
of the voter shown on the voter registration card is confidential
and shall not be disclosed to any person, except as provided in the
Elections Code.
32
Voter registration information may be provided
to any candidate for federal, state, or local office; any committee
for or against an initiative or referendum measure for which legal
publication is made; and to any person for election, scholarly,
journalistic or political purposes, or for governmental purposes as
determined by the Secretary of State.
33
Identifying information contained in voter registration records
including a California Driver’s License, California ID card, or other
unique identifier used by the State of California is confidential and
shall not be disclosed to any person (including those entitled to
voter registration information).
34
When a person’s vote is challenged, the voter’s home address or signature may be released to the
challenger, elections officials, and other persons as necessary to make, defend or adjudicate a challenge.
35
The elections official shall permit a person to view the signature of a voter for the purpose of determining
whether the signature matches a signature on an affidavit of registration or a petition. The signature cannot
be copied.
36
Information or data compiled by public officers or employees that reveals the identity of persons who
have requested bilingual ballots or ballot pamphlets is not a public record and shall not be provided to any
person other than those public officers or employees who are responsible for receiving and processing
those requests.
37
Initiative, Recall, and Referendum Petitions
Any petition to which a voter has affixed his or her signature for a statewide, county, city, and/or district
initiative
, referendum, recall or matters submitted under the Education Code is not a public record and is
not open to inspection except by the public officers and/or employees whose duty it is to receive, examine
or preserve the petitions. This prohibition extends to all memoranda prepared by county elections officials
in the examination of the petitions indicating which voters have signed particular petitions.
38
If a petition is found to be insufficient, the proponents and their representatives may inspect the
memoranda of insufficiency to determine which signatures were disqualified and the reasons for the
disqualification.
39
Identity of Informants
A local agency has a privilege to refuse to disclose and to prevent another from disclosing the identity
of a person who has furnished information in confidence to a law enforcement officer or representative
of a local agency charged with administration or enforcement of a law. This privilege applies where the
information purports to disclose a violation of a law of the United States, the State of California or another
public entity, and where the disclosure is forbidden by state or federal law. It also applies where the
disclosure of the identity of the informant is against the public interest because there is a necessity for
22 THE PEOPLE’S BUSINESS
Q
Chapter 4: Exemptions
preserving the confidentiality of the informant’s identity that outweighs the necessity for disclosure in the
interest of justice.
40
This privilege extends to disclosure of the contents of the informant’s communication if
the disclosure would tend to disclose the identity of the informant.
41
Law Enforcement Records
Overview
Law enforcement records are generally exempt from disclosure except for certain
specific types of information that must be disclosed.
42
The actual investigation files
and records are themselves exempt from disclosure, but the Act requires the local
agency to disclose certain information derived from them.
43
The type of information that must be disclosed differs depending upon whether it
relates to, for example, calls to the police department for assistance, the identity
of an arrestee, information relating to a traffic accident, or certain types of crimes,
including, for example, car theft, burglary, or arson. The identities of victims of
certain types of crimes, including minors and victims of sexual assault, are required
to be withheld if requested by the victim, or the victim’s guardian if the victim is
a minor.
44
Those portions of any file that reflect the analysis and conclusions of
the investigating officers may also be withheld.
45
Certain information that may be
required to be released may be withheld where the disclosure would endanger
a witness or interfere with the successful completion of the investigation. The
disclosure exemption extends indefinitely, even after the investigation is closed.
46
Release practices vary by local agency. Some local agencies provide a written summary of information
being disclosed, some release only specific information upon request, while others release reports with
certain matters redacted. Other local agencies release reports upon request with no redactions except as
mandated by statute. Some local agencies also release 911 tapes
47
and booking photos, although this is not
required under the Act.
48
If it is your local agency’s policy to release police reports upon request, it is helpful to establish an internal
process to control the release of the identity of minors or victims of certain types of crimes; or to ensure
that releasing the report would not endanger the safety of a person involved in an investigation or
endanger the completion of the investigation.
Exempt Records
The Act generally exempts most law enforcement records from disclosure, including:
•
Complaints to or investigations conducted by a local or state police agency
• Records of intelligence information or security procedures of a local or state police agency
• Any investigatory or security files compiled by any other local or state police agency
• Customer lists provided to a local police agency by an alarm or security company
• Any investigatory or security files compiled by any state or local agency for correctional, law
enforcement or licensing purposes.
49
Information that Must be Disclosed
There are three general categories of information contained in law enforcement investigatory files that
must be disclosed:
information that must be disclosed to victims, their authorized representatives and
insurance carriers; information relating to arrestees; and information relating to complaints or requests for
assistance.
Practice Tip:
Many departments that
choose not to release entire
reports develop a form that
can be filled out with the
requisite public information.
THE PEOPLE’S BUSINESS
Q
Chapter 4: Exemptions 23
Disclosure to Victims, Authorized Representatives, Insurance Carriers:
Except where disclosure would endanger the successful completion of an investigation, or a related
investigation, or endanger the safety of a witness, certain information relating to specific listed crimes must
be disclosed upon request to:
• A victim
• The victim’s authorized representative
• An insurance carrier against which a claim has been or might be made
• Any person suffering bodily injury, or property damage or loss.
The type of crimes listed to which this requirement applies include arson, burglary, fire, explosion, larceny,
robbery, carjacking, vandalism, vehicle theft, or a crime defined by statute.
50
The type of information that must be disclosed (except where it endangers safety of witnesses or the
investigation itself) includes:
• Name and address of persons involved in or witnesses to incident (other than confidential informants)
• Description of property involved
• Date, time and location of incident
• All diagrams; statements of the parties to the incident
• Statements of all witnesses (other than confidential informants).
51
Information Regarding Arrestees
The Act mandates that the following information be released pertaining to every individual arrested by
the local law enforcement agency except where releasing the information would endanger the safety of
persons involved in an investigation or endanger the successful completion of the investigation or a related
investigation:
• Full name and occupation of the arrestee
• Physical description including date of birth, color of eyes and hair, sex, height and weight
• Time, date and location of arrest
• Time and date of booking
• Factual circumstances surrounding arrest
• Amount of bail set
• Time and manner of release or location where arrestee
is being held
• All charges, including outstanding warrants, parole or
probation holds, that the arrestee is being held on.
53
Complaints or Requests for Assistance
The Act provides that the following information must be disclosed relative to complaints or requests
for assistance received by the law enforcement agency — subject to the restrictions imposed by the
Penal Code:
• Time and nature of the response
• To the extent the crime alleged or committed or any other incident is recorded, the time, date and
location of occurrence, and the time and date of report
• Factual circumstances surrounding crime/incident
Practice Tip:
The release of traffic
accident information is
covered under the Vehicle
Code, which requires the
law enforcement agency to
disclose the entire contents
of a traffic accident report to
persons who have a “proper
interest” in the information,
including the driver or
authorized representative,
guardian, conservator or
parent of a minor driver,
injured person, owners
of vehicles or property
damaged by the accident,
persons who may be liable
for breach of warranty and
an attorney who declares
under penalty of perjury that
he or she represents any
such person.
52
Practice Tip:
Most police departments
have some form of daily
desk or press log that
contains all or most of
arrestee information. The
Act does not require a
local agency to grant a
single requester to be given
access on a subscription
basis to records that may
be created in the future.
It applies only to records
existing at the time of the
request.
54
Further, there
is no obligation to provide
the information in the
format requested if that is
not the format used by the
local agency to store the
information or to create
copies for its own use.
55
24 THE PEOPLE’S BUSINESS
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Chapter 4: Exemptions
• General description of injuries, property or weapons involved
• Names and ages of victims shall be disclosed, except the names of victims of certain listed crimes may
be withheld upon request of victim or parent of minor victim. These listed crimes include various Penal
Code sections which relate to topics such as sexual abuse, child abuse, hate crimes and stalking.
56
The Penal Code provides that except as required by criminal discovery provisions, no law enforcement
officer or employee of a law enforcement agency shall disclose to any arrested person, or to any person
who may be a defendant in a criminal action, the address or telephone number of any person who is a
victim of or witness to the alleged offense.
57
Requests for Journalistic or Scholarly Purposes
Where a request states, under penalty of perjury, that it is made for a scholarly, journalistic, political or
governmental purpose
, or for an investigative purpose by a licensed private investigator, and that it will not
be used directly or indirectly or furnished to another to sell a product or service to any individual or group
of individuals, the Act requires the disclosure of the name and address of every individual arrested by the
local agency and the current address of the victim of a crime, except for specified crimes.
58
Any address
information furnished pursuant to this authorization may not be used directly or indirectly, or furnished to
another to sell a product or service and is subject to statutory restrictions that preclude the furnishing of
this information to an arrested person or a defendant in a criminal action.
59
Mental Health Detention Information
All information and records obtained in the course of providing services to a mentally disordered individual
who is gr
avely disabled and/or a danger to others or himself, and who is detained (often referred to as
a “detainee”) and taken into custody by a peace officer, are confidential and may only be disclosed to
enumerated recipients and for purposes specified in state law.
60
Willful, knowing release of confidential
mental health detention information can create liability for civil damages.
61
Elder Abuse Records
Reports of suspected abuse or neglect of an elder or dependent adult, and information contained in such
r
eports, are confidential and may only be disclosed as permitted by state law.
62
The prohibition against
unauthorized disclosure applies regardless of whether a report of suspected elder abuse or neglect is from
someone who is a “mandated reporter” (any person that has assumed full or intermittent responsibility for
the care or custody of an elder or dependent adult, whether or not for compensation) or from someone
else.
63
Unauthorized disclosure of suspected elder abuse or neglect information is a misdemeanor.
64
Juvenile Records
Police and Court Records
Records or information gathered by law enforcement agencies relating to the detention of or taking a minor
into custody or temporary custody are confidential and subject to release only in certain circumstances and
by certain specified persons and entities.
65
Juvenile court case files are subject to inspection only by specific
listed persons and are governed by both statute and state court rules.
66
Different provisions apply to dissemination of information gathered by a law enforcement agency
relating to the taking of a minor into custody where it is provided to another law enforcement agency,
including a school district police or security department or other agency or person who has a legitimate
need for information for purposes of official disposition of a case.
67
A law enforcement agency shall
release the name of and descriptive information relating to any juvenile who has escaped from a secure
detention facility.
68
Practice Tip:
Some local courts have
their own rules regarding
inspection of juvenile
records, which may differ
from county to county and
may change from time to
time. Care should be taken
to periodically review the
rules as the presiding judge
of each juvenile court makes
their own rules.
Practice Tip:
Law enforcement information
such as complaint or
incident information that
may otherwise be subject
to disclosure is confidential
to the extent it includes
reports of suspected child
or elder abuse or neglect,
or information contained in
reports of suspected abuse
or neglect. To avoid potential
criminal liability, local
agencies should only disclose
reports of suspected child
or elder abuse or neglect
or information contained in
such reports as permitted by
state law.
THE PEOPLE’S BUSINESS
Q
Chapter 4: Exemptions 25
Child Abuse Reports
Reports of suspected child abuse or neglect, including reports from those who are “mandated reporters”
(for example, teachers and public school employees and officials, physicians, children’s organizations,
community care facilities, etc.), and child abuse and neglect
investigative reports that result in a summary report being filed
with the Department of Justice are confidential and may only
be disclosed to the persons and agencies listed in state law.
69
Unauthorized disclosure of confidential child abuse or neglect
information is a misdemeanor.
70
Library Circulation Records
Library circulation records that are kept to identify the borrowers,
and library and museum materials presented solely for reference
or exhibition purposes, are exempt from disclosure.
71
Further,
all registration and circulation records of any library that is in
whole or in part supported by public funds are confidential. Such
records remain confidential and shall not be disclosed except
to persons acting within the scope of their duties within the administration of the library, pursuant to
written authorization by the individual to whom the records pertain, or by superior court order.
72
The
confidentiality of library circulation records does not extend to statistical reports of registration and
circulation, or to records of fines collected by the library.
73
Licensee Financial Information
When a local agency requires that applicants for licenses, certificates or permits submit personal financial
data, that information is exempt from disclosure.
74
One frequent example of this is the submittal of sales
or income information under a business license tax requirement. However, this exemption does not apply
to financial information filed by an existing licensee or franchisee to justify a rate increase, presumably
because those affected by the increase have a right to know its basis.
75
Medical Privacy Laws
State and federal medical privacy laws that may apply to records of local agencies include the physician/
patient privilege, the Confidentiality of Medical Information Act, and the Health Insurance Portability and
Accountability Act.
76
The exemptions from and prohibitions against disclosure contained in these laws are
incorporated into the Act.
77
Local agencies that receive or maintain individually identifiable health information may comply with the
requirements of the physician/patient privilege, the Confidentiality of Medical Information Act, and the
Health Insurance Portability and Accountability Act by citing appropriate sections of the Act, as well as
applicable medical privacy laws and regulations, in declining to disclose protected, individually identifiable
health information.
78
Physician/Patient Privilege
State law gives patients a privilege to refuse to disclose, and to prevent others from disclosing, confidential
communications between patients and their physicians
.
79
The privilege extends to confidential patient/
physician communications that are disclosed to third parties where reasonably necessary to accomplish
the purpose for which the physician was consulted.
80
Patient information in the possession of a local
agency may be subject to the privilege.
26 THE PEOPLE’S BUSINESS
Q
Chapter 4: Exemptions
Confidentiality of Medical Information Act
State law prohibits providers of health care, health care service plans and contractors, as these terms are
defined in the la
w, from disclosing individually identifiable medical information of a patient, enrollee or
subscriber without first obtaining authorization, subject to certain exceptions.
81
State law also obligates
employers to establish appropriate procedures to ensure the confidentiality of individually identifiable
medical information, and prohibits employers from disclosing or permitting the disclosure or use of
individually identifiable medical information without first obtaining authorization, subject to certain
exceptions.
82
Local agencies that are not providers of health care, health care service plans or contractors
as defined in state law may possess individually identifiable medical information protected under state law
that originated with providers of health care, health care service plans or contractors.
83
Local agencies are also obligated as employers to protect individually identifiable medical information
protected under state law. Patients whose individually identifiable medical information is used or disclosed
in violation of the state law may recover compensatory damages, limited punitive damages, limited
attorneys’ fees and their litigation costs.
84
Violations of state law that result in economic loss or personal
injury of patients are subject to criminal penalties, and damages are available for negligent release of
protected records.
85
Persons and entities that negligently disclose records protected under state law may
be liable for administrative fines or civil penalties.
86
Knowingly and willfully obtaining, using, or disclosing
information protected under state law is subject to substantial administrative fines or civil penalties.
87
Health Insurance Portability and Accountability Act
Congress enacted the Health Insurance Portability and
Accountability
Act in 1996 to improve portability and continuity
of health insurance coverage and to combat waste, fraud and
abuse in health insurance and health care delivery through the
development of a health information system and establishment
of standards and requirements for the electronic transmission of
certain health information.
88
The Secretary of the U.S. Department
of Health and Human Services has issued privacy regulations
governing use and disclosure of individually identifiable health
information.
89
Persons that knowingly and in violation of federal
law use or cause to be used a unique health identifier, obtain
individually identifiable health information relating to an individual,
or disclose individually identifiable health information to another
person are subject to substantial fines and imprisonment of not more than one year, or both, and to
increased fines and imprisonment for violations under false pretenses or with the intent to use individually
identifiable health information for commercial advantage, personal gain, or malicious harm.
90
Federal law
also permits the Health and Human Services Secretary to impose civil penalties.
91
Workers’ Compensation Benefits
A local agency may not release records pertaining to the workers’ compensation benefits for an individually
identified employee because they ar
e exempt from disclosure as “personnel, medical, or similar files, the
disclosure of which would constitute an unwarranted invasion of privacy.”
92
The Act further prohibits the
disclosure of records otherwise exempt or prohibited from disclosure pursuant to federal and state law.
93
In addition, state law prohibits a person or public or private entity who is not a party to a claim for workers’
compensation benefits from obtaining individually identifiable information obtained or maintained by the
Division of Workers’ Compensation on that claim.
94
“[I]ndividually identifiable information” means “any
Practice Tip:
Patient medical information
provided to local agency
emergency medical
personnel to assist in
providing emergency medical
care may be subject to the
physician/patient privilege
if providing the privileged
information is reasonably
necessary to accomplish
the purpose for which the
physician was consulted.
THE PEOPLE’S BUSINESS
Q
Chapter 4: Exemptions 27
data concerning an injury or claim that is linked to a uniquely identifiable employee, employer, claims
administrator, or any other person or entity.”
95
If a public records request falls within this broad definition
as a request for “data concerning an injury or claim” that is linked to a local agency
employee or other uniquely identifiable individual, then the record(s) may not be
disclosed.
Once an application for adjudication has been filed, certain information may be subject
to disclosure;
96
however, some of the personal information may still be protected under
the Act.
97
Requests for such information after adjudication must identify the requester
and state the reason for the request. If the purpose of such a request is related to pre-
employment screening, the administrative director must notify the person about whom
the information is requested and include a warning about discrimination against persons
who have filed claims for workers’ compensation benefits. Further, a residence address
shall not be disclosed except to law enforcement agencies, the district attorney, other
governmental agencies or for journalistic purposes. Individually identifiable information
is not subject to subpoena in a civil proceeding without notice and a hearing at which
the court is required to balance the respective interests—privacy and public disclosure.
Individually identifiable information may be used for certain types of statistical research
by specifically listed persons and entities.
98
Official Information Privilege
A local agency has a privilege to refuse to disclose official information.
99
“Official Information” includes:
• Information that is protected by a state or federal statutory privilege or; and
• Information, the disclosure of which is against the public interest, due to necessity for preserving the
confidentiality of the information that outweighs the necessity for disclosure in the interest of justice.
100
The local agency has the right to assert the privilege both to refuse to disclose and to prevent another from
disclosing official information.
101
Where the disclosure is prohibited by state or federal statute, the privilege
is absolute. In all other respects, it is conditional and requires a judge to weigh the necessity for preserving
the confidentiality of information against the necessity for disclosure in the interest of justice. (This is similar
to the weighing process provided for in the Act—allowing nondisclosure when the public interest served by
not disclosing the record clearly outweighs the public interest served by disclosure.)
102
This is typically done
through confidential judicial review.
103
As part of the weighing process a court will look at the consequences
to the public, including the effect of the disclosure on the integrity of public processes and procedures.
104
There are a number of cases arising out of this statute.
105
While many of the cases interpreting this privilege
involve law enforcement records, other cases arise out of licensing and accreditation-type activities. The
courts address these types of cases on an individualized basis and further legal research should be done
within the context of particular facts. The statute defines “official information” as “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.”
106
However, the courts have somewhat expanded on
the statutory definition by determining that certain types of information, such as police investigative files
and medical information, are “by [their] nature confidential and widely treated as such” and thus protected
from disclosure by the privilege.
107
Although there is no case law directly on point, this privilege, along with
the informant privilege, may be asserted to protect the identities of code enforcement complainants and
whistleblowers.
28 THE PEOPLE’S BUSINESS
Q
Chapter 4: Exemptions
Pending Litigation or Claims
The Act exempts from disclosure “(r)ecords pertaining to pending litigation to which the public agency is
a party, or to claims made pursuant to [the California Government Claims Act] until the pending litigation
or claim has been finally adjudicated or otherwise settled.”
108
Although the phrase “pertaining to” pending
litigation or claims might seem broad, the courts nevertheless have construed the exemption narrowly,
consistent with the underlying policy of the Act to promote access to public
records. The exemption applies only to documents specifically prepared by, or
at the direction of, the local agency for use in litigation. This includes records
prepared not simply for an ongoing case, but those specifically prepared in
anticipation of a future lawsuit, such as an incident report.
109
It may sometimes be difficult to determine whether a particular record was
prepared specifically for use in litigation or for other purposes related to the
underlying incident. For example, an incident report may be prepared either
in anticipation of defending a potential claim, or simply for risk management
purposes. In order for the exemption to apply in those circumstances, the local
agency would have to prove that the dominant purpose of the record was to
be used in defense of litigation.
110
It is important to remember that even members of the public that have sued a local agency are entitled to
use the Act to obtain documents that may be relevant to the litigation, so long as the documents were not
specifically prepared by the local agency for use in anticipated or pending litigation, and do not fall within
some other exemption under the Act or other statute. The mere fact that the litigant might also be able to
obtain the documents in discovery is not a ground for rejecting the request under the Act.
111
The pending litigation exemption does not prevent members of the public from obtaining records submitted
to the local entity by litigants, such as a claim for monetary damages filed prior to a lawsuit. This is because
the document has been prepared by the litigant and not by the local agency.
112
Once litigation has concluded and is no longer “pending,” records previously shielded from disclosure by
the exemption must be produced, unless covered by another exemption or statutory privilege. The public
may therefore obtain copies of depositions from closed cases.
113
Documents concerning settlement of
a claim, whether prepared by a litigant or the local agency, such as medical records, payment warrants,
minutes of a claims settlement committee meeting, or investigative reports, must be produced unless
shielded from disclosure by other exemptions of the Act or other statutes.
114
While medical records are subject to a constitutional right of privacy, and generally exempt from production
under the Act and other statutes,
115
the litigant may be deemed to have waived the right to confidentiality
by submitting them to the public entity in order to obtain a settlement.
116
Similarly, investigative reports in
claims involving law enforcement activity may fall within specific exemptions for law enforcement reports
117
or reports prepared in anticipation of litigation may fall within the attorney client privilege.
118
Particular
records or information relevant to settlement of a closed case may also be subject to nondisclosure
under the public interest exemption to the extent the local agency can show that the public interest in
nondisclosure clearly outweighs the public interest in disclosure.
119
There is considerable overlap between the pending litigation exemption and both the attorney client
privilege
120
and attorney work product protection.
121
However, the exemption for pending litigation is not
limited solely to documents that fall within either the attorney client privilege or work product protection.
122
Moreover, while the exemption for pending litigation expires once the litigation is no longer pending, the
attorney client privilege and work product protection are ongoing.
123
Practice Tip:
In responding to a request
for documents concerning
settlement of a particular
matter, it is critical to pay
close attention to potential
application of other
exemptions under the Act
or other statutory privileges.
It is recommended that you
seek the advice of your local
agency counsel.
THE PEOPLE’S BUSINESS
Q
Chapter 4: Exemptions 29
The attorney client privilege may come into play simultaneously with specific exemptions under the Act
or other statutory privileges that could require a court to undertake confidential inspection of documents
in order to determine application of the exemptions. The Act specifically references an Evidence Code
provision that provides a court may not review privileged attorney client communications in camera for
purposes of determining whether the privilege is established.
124
Thus, in a writ of mandate proceeding a
local agency may have to submit other documents for inspection to allow the court to determine whether
a particular exemption applies, such as evaluating whether the public interest in nondisclosure clearly
outweighs the public interest in disclosure under the public interest exemption. But the court cannot
conduct an in camera review of documents that the local agency contends are subject to the attorney
client privilege.
Personal Contact Information
Court decisions have ruled that individuals have a substantial privacy interest in their personal contact
information. However, a fact-specific analysis must be conducted to determine whether the public interest
exemption protects this information from disclosure, that is, whether the public interest in nondisclosure
clearly outweighs the public interest in disclosure.
125
Application of this balancing test has yielded varying
results, depending on the circumstances of the case.
For example, courts have allowed nondisclosure of the names, addresses and telephone numbers of airport
noise complainants.
126
In that instance, the anticipated chilling effect on future citizen complaints weighed
heavily in the court’s decision.
In other situations, courts have ordered disclosure of personal information contained in applications for
licenses to carry concealed weapons,
127
the names and addresses of residential water customers who
exceeded their water allocation under a rationing ordinance,
128
and the names of donors to a university-
affiliated foundation, even though those donors had requested anonymity.
129
Posting Personal Information of Elected/Appointed Officials on the Internet
The Act prohibits a state or local agency from posting on the Internet the home address or telephone
number of any elected or appointed officials without first obtaining their written permission.
130
This section
also prohibits someone from knowingly posting on the Internet the home address or telephone number
of any elected or appointed official or the official’s “residing spouse” or child, and either threatening or
intending to cause imminent great bodily harm. It also prohibits a person, business or association from
publicly posting or displaying on the Internet the home address or telephone number of any elected or
appointed official where the official has made a written demand not to disclose his address or phone
number. If an official makes such a written demand, it must include a statement describing a threat or fear
for the safety of the official or any person residing at the official’s home address. The written demand is
effective for four years, regardless of the length of the official’s term of office. Remedies include injunctive
or declarative relief, misdemeanor or felony prosecution, and treble damages of not less than $4,000.
131
Personnel Records
“Personnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of
personal privacy” are exempt from disclosure.
132
The express policy declaration at the beginning of the
Act “bespeaks legislative concern for individual privacy as well as disclosure.”
133
Courts have continued to
recognize that public employees have a constitutionally protected interest in their personnel files; however,
recent decisions from the California Supreme Court have determined that public employees do not have
a reasonable expectation of privacy in their names and salary information and their dates of employment.
This interpretation also applies to police officers absent unique, individual circumstances.
134
Practice Tip:
In situations where personal
contact information clearly
cannot be kept confidential,
inform the affected members
of the public that their
personal contact information
is subject to disclosure
pursuant to the Act.
Practice Tip:
It is important to separate
potential attorney
client communications
from other records
and make certain that
privileged attorney client
communications are not
unintentionally submitted
to the court for inspection.
30 THE PEOPLE’S BUSINESS
Q
Chapter 4: Exemptions
In addition, the public interest exemption may protect certain personnel records from disclosure.
135
In
determining whether to allow access to personnel files, the courts have determined that the tests are
essentially the same. The extent of the employee’s privacy interest in certain information and the harm
from its unwarranted disclosure is weighed against the public interest in disclosure. The public interest in
disclosure will be considered in the context of the extent to which the disclosure of the information will
shed light on the local agency’s performance of its duties.
136
Concerning allegations of non-law enforcement public employee misconduct, courts have upheld the
public interest against disclosure of “trivial or groundless charges.” When “the charges are found true, or
discipline is imposed,” the public interest favors disclosure. In addition, “where there is reasonable cause to
believe the complaint to be well founded, the right of public access to related public records exists.”
137
Peace Officer Personnel Records
Peace officer personnel records fall within the category of records, “the disclosure of which is exempted or
prohibited pursuant to feder
al or state law....” These records are confidential and privileged.
139
The discovery and disclosure of the personnel records of peace officers are governed exclusively by
statutory provisions contained in the Evidence Code and Penal Code. Peace officer personnel records and
records of citizen complaints “. . . or information obtained from these records . . .” are confidential and “shall
not” be disclosed in any criminal or civil proceeding except by discovery pursuant to statutorily prescribed
procedures.
140
Peace officer “personnel records” include personal data, medical history, appraisals and discipline,
complaints and investigations relating to events perceived by the officer or relating to the manner in which
his or her duties were performed, and any other information the disclosure of which would constitute an
unwarranted invasion of privacy.
141
The names, salary information and employment dates and departments
of peace officers have been determined to be disclosable records.
142
While the Penal and Evidence Code privileges are not per se applicable in federal court, federal common
law recognizes a qualified privilege for “official information” and considers government personnel files to
be “official information.”
143
Such a qualified privilege in federal court results in a very similar weighing of the
potential benefits of disclosure against potential disadvantages.
144
Employment Contracts and Employee Salaries
Every employment contract between a state or local agency and any public official or public employee
is a public r
ecord that is not exempt under either the personnel or public interest exemption.
146
Thus, for
example, one court has held that two letters in a city firefighter’s personnel file were part of his employment
contract and could not be withheld under either the employee’s right to privacy in his personnel file or the
public interest exemption.
147
With or without an employment contract, the names and salaries (including performance bonuses and
overtime) of public employees, including peace officers, are subject to disclosure under the Act.
148
Public
employees do not have a reasonable expectation that their salaries will remain a private matter. In addition,
there is a strong public interest in knowing how the government spends its money. Therefore, absent
unusual circumstances, the names and salaries of public employees are not subject to either the personnel
exemption or the public interest exemption. Similarly, peace officer salary information is not exempted
from disclosure under the Act. Thus, absent unique, individual circumstances such as where a peace
officer’s anonymity is essential to his or her safety, the names and salaries of peace officers are subject to
disclosure under the Act.
149
Practice Tip:
California courts continue
to look for guidance to
provisions of the Federal
Freedom of Information Act
(FOIA), on which the Act
was modeled, as well as
federal cases interpreting
the FOIA relative to
personnel records.
138
Practice Tip:
The appropriate procedure
for obtaining information
in protected peace officer
personnel files is to file a
motion commonly known as
a “Pitchess” motion, which
by statute entails a two-part
process involving first a
determination by the court
regarding good cause for
disclosure and materiality of
the information sought, and
a subsequent confidential
review by the court of the
files, where warranted.
145
THE PEOPLE’S BUSINESS
Q
Chapter 4: Exemptions 31
Contractor Payroll Records
State law establishes requirements for maintaining and disclosing certified payroll records for workers
employed on public works projects subject to payment of pr
evailing wages.
150
State law requires
contractors to make certified copies of payroll records available to employees and their representatives,
representatives of the awarding body, the Department of Industrial Relations, and the public.
151
Requests
are to be made through the awarding agency or the Department of Industrial Relations, and the requesting
party is required to reimburse the cost of preparation to the contractor, subcontractors, and the agency
through which the request is made prior to being provided the records.
152
Contractors are required to file
certified copies of the requested records with the requesting entity
within ten days of receipt of a written request.
153
However, state law also limits access to contractor payroll records.
Employee names, addresses and social security numbers must be
redacted from certified payroll copies provided to the public or any
local agency by the awarding body or the Department of Industrial
Relations.
154
Only the name and social security number are to
be redacted from certified payroll copies provided to joint labor-
management committees established pursuant to the federal Labor
Management Cooperation Act of 1978.
155
The name and address of
the contractor or subcontractor may not be redacted.
156
The Director of the Department of Industrial Relations has adopted
regulations governing release of certified payroll records and applicable fees.
157
Such regulations require
that requests for certified payroll records be in writing and contain certain specified information regarding
the awarding body, the contract and the contractor; require awarding agency acknowledgement of
requests; specify required contents of awarding agency requests to contractors for payroll records; and set
fees to be paid in advance by persons seeking payroll records.
158
Test Questions and Other Examination Data
The Act exempts from disclosure test questions, scoring keys and other examination data used to administer
a licensing examination,
examination for employment, or academic examination, except as provided in the
portions of the Education Code that relate to standardized tests.
159
Thus, for example, a local agency is not
required to disclose the test questions it uses for its employment examinations. State law provides that
standardized test subjects may, within 90 days of the release of test results to the test subject, have limited
access to test questions and answers upon request to the test sponsor.
160
This limited access may be either
through an in-person examination or by release of certain information to the test subject.
161
The Education
Code also requires that test sponsors prepare and submit certain reports regarding standardized tests and
test results to the California Postsecondary Education Commission.
162
All such reports and information
submitted to the Commission are public records subject to disclosure under the Act.
163
Public Contracting Documents
Final contracts with local agencies are generally disclosable public records due to the public’s right to
determine whether public resources are being spent for the benefit of the community as a whole or the
benefit of only a limited few.
164
When the bids or proposals leading up to those final contracts become
disclosable depends largely upon the types of contracts involved.
For example, local agency contracts for construction of public works, and procurement of goods and
non-professional services are typically awarded to the lowest responsive, responsible bidder through a
competitive bidding process.
165
Bids for these contracts are usually submitted to local agencies under seal
32 THE PEOPLE’S BUSINESS
Q
Chapter 4: Exemptions
and then publicly opened at a designated time and place. These bids are public records and disclosable as
soon as they are opened.
Other local agency contracts for acquisition of professional services or disposition of property are awarded
to the successful proposer through a competitive proposal process. As part of this process, interested
parties submit proposals that are evaluated by the local agency and are used to negotiate with the winning
proposer.
While the public has a strong interest in scrutinizing the process leading to the selection of the winning
proposer, the local agency’s interest in keeping these proposals confidential frequently outweighs the
public’s interest in disclosure until negotiations with the winning proposer are complete.
166
If a winning
proposer has access to the specific details of other competing proposals, then the local agency is greatly
impaired in its ability to secure the best possible deal on its constituents’ behalf.
Some local agencies pre-qualify prospective bidders through a request for qualifications process. The pre-
qualification packages submitted, including questionnaire answers and financial statements, are exempt
public records and are not open to public inspection.
167
Nevertheless, documents containing the names of
contractors applying for pre-qualification status are public records and must be disclosed. In addition, the
contents of pre-qualification packages may be disclosed to third parties during the verification process, in
an investigation of substantial allegations or at an appeal hearing.
Real Estate Appraisals and Engineering Evaluations
The Act requires the disclosure of the contents of real estate appraisals or
engineering or feasibility estimates and evaluations made for or by the state
or a local agency relative to the acquisition of property, or to prospective
public supply and construction contracts, but only when all of the property
has been acquired or when all of the contract agreement obtained.
168
By its
plain terms, this exemption only applies while the acquisition or prospective
contract is pending. Once all the property is acquired or all of the contract
agreement obtained, the exemption will not apply. In addition, this exemption
is not intended to supersede the law of eminent domain.
169
Thus, for
example, this exemption would not apply to appraisals of owner-occupied
residential property of four units or less, where disclosure of such appraisals
is required by the Eminent Domain Law or related laws such as the California Relocation Assistance Act.
170
Recipients of Public Services
Disclosure of information regarding food stamp recipients is prohibited.
171
Subject to certain exceptions,
disclosure of confidential information pertaining to applicants for or recipients of public social services for
any purpose unconnected with the administration of the welfare department also is prohibited.
172
This latter
prohibition does not create a privilege.
173
Housing Authority Tenants
Leases and lists or rosters of tenants of the Housing Authority are confidential and shall not be open to
inspection by the public
, but shall be supplied to the respective governing body on request.
174
A Housing
Authority has a duty to make available public documents and records of the Authority for inspection, except
any applications for eligibility and occupancy that are submitted by prospective or current tenants of the
Authority.
175
The Act exempts from disclosure records that are the residence address of any person contained in
the records of the Department of Housing and Community Development, if the person has requested
confidentiality of that information in accordance with section 18081 of the Health and Safety Code.
176
Practice Tip:
Local agencies should clearly
advise bidders and proposers
in their Requests for Bids and
Requests for Proposals what
bid and proposal documents
will be disclosable public
records and when they will
be disclosable to the public.
THE PEOPLE’S BUSINESS
Q
Chapter 4: Exemptions 33
Taxpayer Information
Where information that is required from any taxpayer in connection with the collection of local taxes is
received in confidence and where the disclosure of that information would result in an unfair competitive
disadvantage to the person supplying the information, the information is exempt from disclosure.
177
Sales
and use tax records may be used only for tax administration. Unauthorized disclosure or use of confidential
information contained in these records can give rise to criminal liability.
178
Trade Secrets and Other Proprietary Information
As part of the award and administration of public contracts, businesses will often give local agencies
information that the businesses would normally consider to be proprietary. There are three exemptions that
businesses often use to attempt to protect this proprietary information – the official information privilege,
the trade secret privilege, and the public interest exemption.
179
However, California’s strong public policy in favor of disclosure of public records precludes local agencies
from protecting most business information. Both the official information privilege and the public interest
exemption require that the public interest in nondisclosure clearly outweighs the public interest in
disclosure. While these provisions were designed to protect legitimate privacy interests, California courts
have consistently held that when individuals or businesses voluntarily enter into the public sphere, they
diminish their privacy interests.
180
Courts have further concluded that the public interest in disclosure
overrides alleged privacy interests. For example, a court ordered a university to release the names of
anonymous contributors who received license agreements for luxury suites at the school’s sports arena.
Another court ordered a local agency to release a waste disposal contractor’s private financial statements
used by the local agency to approve a rate increase.
181
The trade secret privilege is for information, including a formula, pattern, compilation, program, device,
method, technique or process, that: (1) derives independent economic value, actual or potential, from
not being generally known to the public or to other persons who can obtain economic value from its
disclosure or use; and (2) is the subject of efforts that are reasonable under the circumstances to maintain
its secrecy.
182
However, even when records contain trade secrets, local agencies must determine whether disclosing the
information is in the public interest. When businesses give local agencies proprietary information, courts
will examine whether disclosure of that information serves the public interest.
183
The Act contains several exemptions that address specific types of
information that may constitute a trade secret — pesticide safety
and efficacy information,
184
air pollution data,
185
and corporate siting
information.
186
Other exemptions cover types of information that could
include but are not limited to trade secrets — for example, certain
information on plant production, utility systems development data, and
market or crop reports.
187
Utility Customer Information
Personal information expressly protected from disclosure under the
Act includes names, credit histories, usage data, home addresses and
telephone numbers of local agencies’ utility customers.
188
This exception
is not absolute, and customers’ names, utility usage data and home
addresses may be disclosable in certain situations. For example, disclosure
is required when requested either by a customer’s agent or authorized family member,
189
an officer or
employee of another governmental agency when necessary for performance of official duties,
190
by court
34 THE PEOPLE’S BUSINESS
Q
Chapter 4: Exemptions
order or request of a law enforcement agency relative to an ongoing investigation,
191
when the local
agency determines the customer used utility services in violation of utility policies,
192
or if the local agency
determines the public interest in disclosure clearly outweighs the public interest in nondisclosure.
193
Utility customers who are local agency officials with authority to determine their agency’s utilities usage
policies have lesser protection of their personal information because their names and usage data are
disclosable upon request.
194
Q PUBLIC INTEREST EXEMPTION
The Act establishes a “public interest” or “catchall” exemption that permits local agencies to withhold a
record if the agency can demonstrate that on the facts of the particular case the public interest served by
not making the record public clearly outweighs the public interest served by disclosure of the record.
195
Weighing the public interest in nondisclosure and the public interest in disclosure under the public interest
exemption is often described as a balancing test.
196
The Act does not specifically identify the public interests
that might be served by not making the record public, but the nature of those interests may be inferred
from specific exemptions contained in the Act. The scope of the public interest exemption is not limited to
specific categories of information or established exemptions or privileges. Each request for records must be
considered on the facts of the particular case in light of the competing public interests.
197
The records and situations to which the public interest exemption may apply are open-ended, and when
it applies, the public interest exemption alone is sufficient to justify nondisclosure of local agency records.
The courts have relied exclusively on the public interest exemption to uphold nondisclosure of local agency
records containing names, addresses and phone numbers of airport noise complainants, proposals to lease
airport land prior to conclusion of lease negotiations, and information kept in a public defender’s database
about police officers.
198
The public interest exemption is versatile and flexible, in keeping with its purpose of addressing
circumstances not foreseen by the Legislature. For example, in one case, the court held local agencies
could properly consider the burden of segregating exempt from nonexempt records when applying the
balancing test under the public interest exemption.
200
In that case, the court held that the substantial
burden of redacting exempt information from law enforcement intelligence records outweighed the
marginal and speculative benefit of disclosing the remaining nonexempt information. In another case,
the court applied the balancing test to the time of disclosure to hold that public disclosure of competing
proposals for leasing city airport property could properly await conclusion of the negotiation process.
201
The requirement that the public interest in nondisclosure must “clearly outweigh” the public interest
in disclosure for records to qualify as exempt under the public interest exemption is important and
emphasized by the courts. Justifying nondisclosure under the public interest exemption demands a clear
overbalance on the side of confidentiality.
202
Close calls usually do not
qualify for an exemption. There are a number of examples of cases where
a clear overbalance was not present to support nondisclosure under the
public interest exemption. The courts have held that the following are
all subject to disclosure under the public interest exemption balancing
test: the identities of individuals granted criminal conviction exemptions
to work in licensed day care facilities and the facilities employing them;
records relating to unpaid state warrants; court records of a settlement
between the insurer for a school district and a minor sexual assault victim;
applications for concealed weapons permits; letters appointing then
rescinding an appointment to a local agency position; and the identities and
license agreements of purchasers of luxury suites in a university arena.
203
Practice Tip:
The public interest
exemption balancing
test weighs only public
interests—the public
interest in disclosure
and the public interest
in nondisclosure. Agency
interests or requester
interests that are not also
public interests are not
considered.
199
THE PEOPLE’S BUSINESS
Q
Chapter 4: Exemptions 35
Deliberative Process Privilege
The public interest exemption incorporates the deliberative process privilege.
204
Like the “drafts”
exemption, the deliberative process privilege derives from the FOIA “memorandums” exemption and its
implementation of the executive or deliberative process privilege.
205
Congress’ main concern in enacting
the “memorandums” exemption was that frank discussion of legal or policy matters might be inhibited if
subject to public scrutiny, and that efficiency of government would be greatly hampered if, with respect to
such matters, local agencies were forced to operate in a fishbowl.
206
The deliberative process privilege is based on the policy of protecting the decision-making processes
of government agencies, and the notion that access to a broad array of opinions and the freedom to
seek all points of view, to exchange ideas, and to discuss policies in confidence are essential to effective
governance in a representative democracy. The deliberative process privilege is similar to the common
law privilege protecting against the disclosure of the mental processes of legislators. To prevent injury to
the quality of executive decisions, the courts have focused on protecting communications to the decision
maker before the decision is made. Courts have treated communications subsequent to the legislative
decision as outside of the recognized privilege.
207
The California Supreme Court has acknowledged that even purely factually material may be exempt from
disclosure because it exposes the deliberative process. In applying the deliberative process privilege, courts
focus more on the effect of the records’ release and less on the nature of the records sought. The key
question is whether the disclosure of materials would expose an agency’s decision making process in such
a way as to discourage candid discussion within the agency and thereby undermine the agency’s ability to
perform its functions.
208
The California Supreme Court has applied this analysis to uphold nondisclosure of the Governor’s
calendars concerning both past and future meetings. California appellate courts have relied on the
deliberative process privilege to uphold nondisclosure of the names and qualifications of applicants for
temporary appointment to a local board of supervisors, names and
background information about applicants for a county supervisor’s
seat, and the telephone numbers of calls made and received by
local agency council members from cellular phones and second
phones in home offices.
209
Q EFFECT OF PROPOSITION 59 ON EXEMPTIONS
At the November 2, 2004 general election, the voters of
California passed Proposition 59 which amended the California
Constitution to include a public right of access to public records.
The Constitution specifically provides: “The people have the right
of access to information concerning the conduct of the people’s
business, and therefore the meetings of public bodies and the
writings of public officials and agencies shall be open to public
scrutiny.”
210
Thus, after enactment of Proposition 59, the right of
public access to documents is not simply statutory, but a basic right under the Constitution. In furtherance
of that goal, the constitutional provision states that a “statute, court rule, or other authority, including, those
in effect on the effective date of this subdivision, shall be broadly construed if it furthers the people’s right
of access, and narrowly construed if it limits the right of access.”
211
It also provides that any statute enacted
after its effective date that limits the right of access must be adopted with findings identifying the interest
protected by the limitation and the need for protecting that interest.
212
Practice Tip:
The main difference
between the deliberative
process privilege and the
closely related “drafts”
exemption is that the
deliberative process
privilege may exempt from
disclosure records that an
agency normally retains.
36 THE PEOPLE’S BUSINESS
Q
Chapter 4: Exemptions
Although Proposition 59 elevated the right of access to
public records to constitutional stature, it appears to be
simply declarative of existing law in terms of existing
statutory exemptions. For example, while the Constitution
states that an existing exemption must be narrowly
construed,
213
this is consistent with longstanding case
authority.
214
Moreover, the Constitution states that “[t]his
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 that is in effect on the effective date of
this subdivision, including, but not limited to, any statute
protecting the confidentiality of law enforcement and
prosecution records.”
215
No published opinion has extensively analyzed the impact of Proposition 59 on the exemptions in the Act.
However, one court summarily noted that as to construction of the specific exemptions under the Act, it
was simply declarative of existing law.
216
In addition, in three separate opinions, the California Attorney
General has concluded that Proposition 59 did not alter the application of exemptions under the Act that
existed at the time of its enactment.
217
Enactment of Proposition 59 underscores the general principle
that public access to records is the rule, and nondisclosure the exception, only to be invoked in narrow
circumstances after careful consideration.
218
THE PEOPLE’S BUSINESS
Q
Chapter 4: Exemptions 37
Endnotes
1 State of California ex rel Division of Industrial Safety v. Superior Court (1974) 43 Cal.App.3d 778; Fairley v. Superior
Court (1998) 66 Cal.App.4th 1414.
2 San Gabriel Tribune v. Superior Court (1983) 143 Cal.App.3d 762; Fairley v. Superior Court (1998) 66 Cal.App.4th
1414; see “Effect of Proposition 59 on Exemptions,” p. 35.
3 Gov. Code, § 6254, subd. (k).
4 Gov. Code, § 6255; see also “Public Interest Exemption,” p. 34.
5 See, for example, “Attorney Client Communications and Attorney Work Product,” p. 19 and “Medical Privacy Laws,”
p. 25.
6 U.S.C. title 17.
7 Gov. Code, § 6254, subd. (k).
8 17 U.S.C. § 101.
9 17 U.S.C. § 102(A)(8).
10 17 U.S.C. § 107.
11 Health & Saf. Code, § 19851.
12 Health & Saf. Code, § 19851.
13 Health & Saf. Code, § 19851.
14 89 Ops.Cal.Atty.Gen. 39 (2006).
15 Gov. Code, § 6254, subd. (k).
16 Fairley v. Superior Court (1998) 66 Cal.App.4th 1414; see also “Official Information Privilege,” p. 27.
17 U.S. v. Amlani (9th Cir. 1999) 169 F.3d 1189; Clarke v. American Commerce Nat. Bank (9th Cir. 1992) 974 F.2d 127;
Smith v. Laguna Sur Villas Community Assn. (2000) 79 Cal.App.4th 639.
18 Bus. & Prof. Code, § 6149 [a written fee contract shall be deemed to be a confidential communication within the
meaning of section 6068, subdivision (e) of the Business & Professions Code and section 952 of the Evidence Code];
Evid. Code, § 952 [“Confidential communication between client and lawyer”]; Evid. Code, § 954 [attorney client
privilege].
19 Evid. Code § 912. See also Gov. Code § 6254.5 and “Waiver”, p. 13.
20 See Rules Prof. Conduct, rule 3-600.
21 Gov. Code, § 6254, subd. (f);
State of California ex rel. Division of Industrial Safety v. Superior Court (1974) 43 Cal.
App.3d 778; Haynie v. Superior Court (2001) 26 Cal.4th 1061; see “Law Enforcement Records,” p. 22.
22 State of California ex rel. Division of Industrial Safety v. Superior Court (1974) 43 Cal.App.3d 778; Haynie v. Superior
Court (2001) 26 Cal.4th 1061.
23 San Jose v. Superior Court (1999) 74 Cal.App.4th 1008; see “Official Information Privilege,” p. 27, “Identity of
Informants,” p. 21, and “Public Interest Exemption,” p. 34.
24 Gov. Code, § 6254, subd. (a).
25 Gov. Code, § 6254, subd. (a); 5 U.S.C. § 552(b)(5).
26 Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325.
27 Citizens for a Better Environment v. Department of Food and Agriculture (1985) 171 Cal.App.3d 704.
28 Citizens for a Better Environment v. Department of Food and Agriculture (1985) 171 Cal.App.3d 704.
29 Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325.
30 Citizens for a Better Environment v. Department of Food and Agriculture (1985) 171 Cal.App.3d 704.
31 Citizens for a Better Environment v. Department of Food and Agriculture (1985) 171 Cal.App.3d 704.
32 Gov. Code, § 6254.4.
33 Elec. Code, § 2194.
34 Gov. Code, § 6254.4(c).
35 Elec. Code, § 2194, subd. (c).
36 Elec. Code, § 2194, subd. (c)(2).
37 Gov. Code, § 6253.6.
38 Gov. Code, § 6253.5.
39 Gov. Code, § 6253.5.
40 Evid. Code, § 1041;
People v. Navarro (2006) 138 Cal.App.4th 146.
41 People v. Hobbs (1994) 7 Cal.4th 948.
42 Gov. Code, § 6254, subd. (f).
43 Haynie v. Superior Court (2001) 26 Cal.4th 1061; 65 Ops.Cal.Atty.Gen. 563 (1982).
38 THE PEOPLE’S BUSINESS
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Chapter 4: Exemptions
44 Gov. Code, § 6254, subd. (f)(2).
45 Rackauckas v. Superior Court (2002) 104 Cal.App.4th 169.
46 Rivero v. Superior Court (1997) 54 Cal.App.4th 1048; Williams v. Superior Court (1993) 5 Cal.4th 337.
47 Haynie v. Superior Court (2001) 26 Cal.4th 1061 [911 tapes].
48 86 Ops.Cal.Atty.Gen. 132 (2003) [booking photos].
49 Gov. Code, § 6254, subd. (f).
50 Gov. Code, § 13951, subd. (b).
51 Gov. Code, § 6254, subd. (f).
52 Veh. Code, § 20012.
53 Gov. Code, § 6254, subd. (f)(1).
54 Rosenthal v. Hansen (1973) 34 Cal.App.3d 754.
55 Gov. Code, § 6253.9, subd. (a).
56 Gov. Code, § 6254, subd. (f)(2).
57 Pen. Code, § 841.5, subd. (a).
58 Gov. Code, § 6254, subd. (f).
59 Gov. Code, § 6254, subd. (f)(3); Pen. Code, § 841.5;
Los Angeles Police Dept. v. United Reporting Pub. Corp. (1999)
528 U.S. 32 [120 S.Ct. 483].
60 Welf. & Inst. Code, §§ 5150, 5328.
61 Welf. & Inst. Code, § 5330.
62 Welf. & Inst. Code, § 15633.
63 Welf. & Inst. Code, §15633.
64 Welf. & Inst. Code, § 15633.
65 Welf. & Inst. Code, §§ 827, 828; see Welf. & Inst. Code, § 827.9 [applies to Los Angeles County only]; see also
T.N.G.
v. Superior Court (1971) 4 Cal.3d 767 [release of information regarding minor who has been temporarily detained
and released without any further proceedings.]
66 Welf. & Inst. Code, § 827.
67 Welf. & Inst. Code, § 828, subd. (a); Cal. Rules of Court, rule 5.552(g).
68 Welf. & Inst. Code, § 828, subd. (b).
69 Pen. Code, §§ 11165.6, 11165.7, 11167.5 & 11169.
70 Pen. Code, § 11167.5, subd. (a).
71 Gov. Code, § 6254, subd. (j).
72 Gov. Code, § 6267.
73 Gov. Code, §§ 6254, subd. (j) & 6267.
74 Gov. Code, § 6254, subd. (n).
75 San Gabriel Tribune v. Superior Court (1983) 143 Cal.App.3d 762.
76 Evid. Code, § 990 et seq.; Civ. Code, § 56 et seq.; 42 U.S.C. § 1320d.
77 Gov. Code, § 6254, subd. (k).
78 Both section 6254, subd. (c) and section 6254, subd. (k) of the Act probably apply to most records protected under
the physician/patient privilege, the Confidentiality of Medical Information Act, or the Health Insurance Portability
and Accountability Act. Section 6254, subdivision (c) of the Act exempts from disclosure “[p]ersonnel, medical,
or similar files the disclosure of which would constitute an unwarranted invasion of personal privacy.” Section
6254, subdivision (k) of the Act exempts “[r]ecords, the disclosure of which is exempted or prohibited pursuant to
federal or state law, including, but not limited to, provisions of the evidence Code relating to privilege.” Protected
individually identifiable health information is probably also exempt from disclosure under the “public interest”
exemption in section 6255 of the Act.
79 Evid. Code, § 994.
80 Evid. Code, § 992.
81 Civ. Code, §§ 56.10, subd. (a), 56.05, subd. (g). “Provider of health care” as defined means persons licensed under
section 500 and following of the Business and Professions Code or section 1797 and following of the Health and
Safety Code, and clinics, health dispensaries or health facilities licensed under section 1200 and following of the
Health and Safety Code. “Health care service plan” as defined means entities regulated under Health and Safety
Code section 1340 and following. “Contractor” as defined means medical groups, independent practice associations,
pharmaceutical benefits managers and medical service organizations that are not providers of health care or health
care service plans.
82 Civ. Code, § 56.20.
83 Civ. Code, § 56.05, subd. (g).
84 Civ. Code, § 56.35.
THE PEOPLE’S BUSINESS
Q
Chapter 4: Exemptions 39
85 Civ. Code, § 56.36, subds. (a), (b).
86 Civ. Code, § 56.36, subd. (c)(1).
87 Civ. Code, § 56.36, subd. (c)(2).
88 Health Insurance Portability and Accountability Act of 1996, Pub.L. No. 104-192, § 261 (Aug. 24, 1996) 110 Stat.
1936; 42 U.S.C. § 1320d.
89 42 U.S.C. § 1320d-1–d-3, Health and Human Services Summary of the Privacy Rule, May, 2003. The final privacy
regulations were issued in December, 2000 and amended in August, 2002. The definitions of “health information”
and “individually identifiable health information” in the privacy regulations are in 45 Code of Federal Regulations
part 160.103. The general rules governing use and disclosure of protected health information are in 45 Code of
Federal Regulations part 164.502.
90 42 U.S.C. § 1320d-6. Federal law defines “individually identifiable health information” as any information collected
from an individual that is created or received by a health care provider, health plan, employer or health care clearing
house, that relates to the past, present, or future physical or mental health or condition of an individual, the
provision of health care to an individual, or the past, present or future payment for the provision of health care to
an individual, and that identifies the individual, or with respect to which there is a reasonable basis to believe that
the information can be used to identify the individual.
91 42 U.S.C. §1320d-5.
92 Gov. Code, § 6254, subd. (c).
93 Gov. Code, § 6254, subd. (k).
94 Lab. Code, § 138.7, subd. (a).
95 Lab. Code, § 138.7.
96 Lab. Code, §§ 5501.5 & 138.7.
97 Gov. Code, § 6254, subd. (c).
98 Lab. Code, § 138.7.
99 Evid. Code, § 1040.
100 White v. Superior Court (2002) 102 Cal.App.4th Supp. 1.
101 Evid. Code, § 1040, subd. (b).
102 Gov. Code, § 6255.
103 The term “in camera” refers to a review of the document in the judge’s chambers outside the presence of the
requesting party.
104 Shepherd v. Superior Court (1976) 17 Cal.3d 107.
105 Department of Motor Vehicles v. Superior Court (2002) 100 Cal.App.4th 363; California State University, Fresno Assn.,
Inc. v. Superior Court (2001) 90 Cal.App.4th 810; County of Orange v. Superior Court (2000) 79 Cal.App.4th 759.
106 Evid. Code, § 1040, subd. (a).
107 Department of Motor Vehicles v. Superior Court (2002) 100 Cal.App.4th 363.
108 Gov. Code, § 6254, subd. (b).
109 Fairley v. Superior Court (1998) 66 Cal.App.4th 1414; City of Hemet v. Superior Court (1995) 37 Cal.App.4th 1411.
110 Fairley v. Superior Court (1998) 66 Cal.App.4th 1414; City of Hemet v. Superior Court (1995) 37 Cal.App.4th 1411.
111 Wilder v. Superior Court (1998) 66 Cal.App.4th 77.
112 Poway Unified School Dist. v. Superior Court (1998) 62 Cal.App.4th 1496.
113 City of Los Angeles v. Superior Court (1996) 41 Cal.App.4th 1083.
114 Register Div. of Freedom Newspapers, Inc. v. County of Orange (1984) 158 Cal.App.3d 893.
115 See “Medical Privacy Laws,” p. 25.
116 Register Div. of Freedom Newspapers, Inc. v. County of Orange (1984) 158 Cal.App.3d 893.
117 See “Law Enforcement Records,” p. 22.
118 D.I. Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723; City of Hemet v. Superior Court (1995) 37 Cal.App.4th
1411.
119 Gov. Code, § 6255.
120 Evid. Code, § 950 et seq.
121 Code Civ. Proc., § 2018.030.
122 City of Los Angeles v. Superior Court (1996) 41 Cal.App.4th 1083.
123 Roberts v. City of Palmdale (1993) 5 Cal.4th 363 [attorney client privilege]; Fellows v. Superior Court (1980) 108 Cal.
App.3d 55 [work product protection].
124 Gov. Code, § 6259; Evid. Code, § 915, subd. (a).
125 Gov. Code, § 6255, subd. (a).
126 City of San Jose v. Superior Court (1999) 74 Cal.App.4th 1008.
127 CBS, Inc. v. Block (1986) 42 Cal.3d 646.
40 THE PEOPLE’S BUSINESS
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Chapter 4: Exemptions
128 New York Times Co. v. Superior Court (1990) 218 Cal.App.3d 1579.
129 California State University, Fresno Assn., Inc. v. Superior Court (2001) 90 Cal.App.4th 810.
130 See Gov. Code, § 6254.21, subd. (f) [containing a non-exhaustive list of individuals who qualify as “elected or
appointed official[s]”].
131 Gov. Code, § 6254.21.
132 Gov. Code, § 6254, subd. (c).
133 Black Panther Party v. Kehoe (1974) 42 Cal.App.3d 645; American Civil Liberties Union Foundation v. Deukmejian
(1982) 32 Cal.3d 440.
134 International Federation of Professional and Technical Engineers, Local 21, AFL-CIO v. Superior Court (2007) 42
Cal.4th 319; Commission on Peace Officer Standards And Training v. Superior Court (2007) 42 Cal.4th 278.
135 Gov. Code, § 6255;
BRV, Inc. v. Superior Court (2006) 143 Cal.App.4th 742; see also, Copley Press, Inc. v. Superior
Court (2006) 39 Cal.4th 1272; see Chapter 4(c).
136 International Federation of Professional and Technical Engineers, Local 21, AFL-CIO v. Superior Court (2007) 42
Cal.4th 319; Commission on Peace Officer Standards And Training v. Superior Court (2007) 42 Cal.4th 278; BRV, Inc.
v. Superior Court (2006) 143 Cal.App.4th 742; American Federation of State etc. Employees v. Regents of University of
California (1978) 80 Cal.App.3d 913.
137 American Federation of State etc. Employees v. Regents of University of California (1978) 80 Cal.App.3d 913;
Bakersfield City School Dist. v. Superior Court (2004) 118 Cal.App.4th 1041.
138 City of San Jose v. Superior Court (1999) 74 Cal.App.4th 1008; Detroit Edison Co. v. NLRB (1979) 440 U.S.
301 [court found a reasonable expectation of privacy in one’s personnel files]; American Civil Liberties Union
Foundation v. Deukmejian (1982) 32 Cal.3d 440.
139 Gov. Code, § 6254, subd. (k); Pen. Code, § 832.7;
City of Hemet v. Superior Court (1995) 37.Cal.App.4th 1411.
140 Pen. Code, § 832.7; Evid. Code, §§ 1043, 1046.
141 Pen. Code, § 832.8.
142 International Federation of Professional and Technical Engineers, Local 21, AFL-CIO v. Superior Court (2007) 42
Cal.4th 319; Commission on Peace Officer Standards And Training v. Superior Court (2007) 42 Cal.4th 278.
143 Sanchez v. City of Santa Ana (9th Cir. 1990) 936 F.2d 1027, cert. denied (1991) 502 U.S. 957; Miller v. Pancucci
(C.D.Cal. 1992) 141 F.R.D. 292.
144 Evid. Code, § 1043 et seq.; Guerra v. Board of Trustees (9th Cir. 1977) 567 F.2d 352; Kerr v. United States Dist.
Court for Northern Dist. (9th Cir. 1975) 511 F.2d 192, aff’d, (1976) 426 U.S. 394; Garrett v. City and County of San
Francisco (9th Cir. 1987) 818 F.2d 1515.
145 People v. Mooc (2001) 26 Cal.4th 1216; People v. Thompson (2006) 141 Cal.App.4th 1312; City of San Jose v. Superior.
Court (1998) 67 Cal.App.4th 1135.
146 Gov. Code, § 6254.8.
147 Braun v. City of Taft (1984) 154 Cal.App.3d 332.
148 International Federation of Professional and Technical Engineers, Local 21, AFL-CIO v. Superior Court (2007) 42
Cal.4th 319 [holding that the names and salaries of public employees earning $100,000 or more per year, including
peace officers, are subject to disclosure under the Act].
149 Commission on Peace Officer Standards And Training v. Superior Court (2007) 42 Cal.4th 278.
150 Lab. Code, § 1776.
151 Lab. Code, § 1776, subd. (b).
152 Lab. Code, § 1776, subd. (c).
153 Contractors and subcontractors that fail to do so may be subject to a penalty of $25 per worker for each calendar
day until compliance is achieved. Lab. Code, § 1776, subds. (d), (g).
154 Lab. Code, § 1776, subd. (e).
155 Lab
. Code, § 1776, subd. (e).
156 Lab. Code, § 1776, subd. (e).
157 Lab. Code, § 1776, subd. (i); see Lab. Code § 16400 et seq.
158 California Code Regs., tit. 8, §§ 16400, 16402.
159 Gov. Code, § 6254, subd. (g).
160 Ed. Code, § 99157, subd. (a);
Brutsch v. City of Los Angeles (1982) 3 Cal.App.4th 354.
161 Ed. Code, § 9915, subds. 7(a) & (b).
162 Ed. Code, §§ 99153 & 99154.
163 Ed. Code, § 99162.
164 California State University, Fresno Assn., Inc. v. Superior Court (2001) 90 Cal.App.4th 810.
165 Pub. Contract Code, § 22038.
166 Gov. Code, § 6255;
Michaelis, Montanari & Johnson v. Superior Court (2006) 38 Cal.4th 1065.
167 Pub. Contract Code, §§ 10165, 10506.6, 10763, 20101, 20111.5, 20209.7, 20209.26 & 20651.5.
THE PEOPLE’S BUSINESS
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Chapter 4: Exemptions 41
168 Gov. Code, § 6254, subd. (h).
169 Gov. Code, § 6245, subd. (h).
170 Gov. Code, § 7267.2, subd. (c).
171 Welf. & Inst. Code, § 18909.
172 Welf. & Inst. Code, § 10850.
173 Jonon v. Superior Court (1979) 93 Cal.App.3d 683.
174 Health & Saf. Code, § 34283.
175 Health & Saf. Code, § 34332, subd. (c).
176 Gov. Code, § 6254.1.
177 Gov. Code, § 6254, subd. (i); see also Rev. & Tax. Code, § 7056.
178 Rev. & Tax Code, §§ 7056 & 7056.5.
179 Evid. Code, §§ 1040 & 1060; Gov. Code, §§ 6254, subd. (k), 6255.
180 California State University, Fresno Assn., Inc. v. Superior Court (2001) 90 Cal.App.4th 810; Braun v. City of Taft
(1984) 154 Cal.App.3d 332; San Gabriel Tribune v. Superior Court (1983) 143 Cal.App.3d 762.
181 California State University, Fresno Assn., Inc. v. Superior Court (2001) 90 Cal.App.4th 810; San Gabriel Tribune v.
Superior Court (1983) 143 Cal.App.3d 762.
182 Civ. Code, § 3426.1, subd. (d). This trade secret definition is set forth in the Uniform Trade Secrets Act (“UTSA”)
at Civil Code section 3426.1, subdivision (d). However, Civil Code section 3426.7, subdivision (c) states that any
determination as to whether disclosure of a record under the Act constitutes a misappropriation of a trade secret
shall be made pursuant to the law in effect before the operative date of the UTSA. At that time, California used
the Restatement definition of a trade secret, which was lengthy. See Uribe v. Howie (1971) 19 Cal.App.3d 194.
Accordingly, it is not clear that the trade secret definition that applies generally under the UTSA is the trade secret
definition that applies in the context of a public records request.
183 Uribe v. Howie (1971) 19 Cal.App.3d 194.
184 Gov. Code, § 6254.2.
185 Gov. Code, § 6254.7.
186 Gov. Code, § 6254.15.
187 Gov. Code, § 6254, subd. (e).
188 Gov. Code, § 6254.16.
189 Gov. Code, § 6554.16, subd. (a).
190 Gov. Code, § 6254.16, subd. (b).
191 Gov. Code, § 6254.16, subd. (c).
192 Gov. Code, § 6254.16, subd. (d).
193 Gov. Code, § 6254.16, subd. (f).
194 Gov. Code, § 6265.16, subd. (e).
195 Gov. Code, § 6255;
Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325.
196 CBS Broadcasting, Inc. v. Superior Court (2001) 91 Cal.App.4th 892.
197 Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325.
198 City of San Jose v. Superior Court (1999) 74 Cal.App.4th 1008; Michaelis, Montanari & Johnson v. Superior Court
(2006) 38 Cal.4th 1065; Coronado Police Officers Assn. v. Carroll (2003) 106 Cal.App.4th 1001.
199 Coronado Police Officers Assn. v. Carroll (2003) 106 Cal.App.4th 1001.
200 American Civil Liberties Union Foundation v. Deukmejian (1982) 32 Cal.3d 440.
201 Michaelis, Montanari & Johnson v. Superior Court (2006) 38 Cal.4th 1065.
202 Black Panther Party v. Kehoe (1974) 42 Cal.App.3d 645.
203 CBS Broadcasting Inc., v. Superior Court (2001) 91 Cal.App.4th 892; Connell v. Superior Court (1997) 56 Cal.App.4th
601; Copley Press, Inc., v. Superior Court (1998) 63 Cal.App.4th 367; CBS, Inc. v. Block (1986) 42 Cal.App.3d 646;
Braun v. City of Taft (1984) 154 Cal.App.3d 332; California State University, Fresno Assn. v. Superior Court (2001) 90
Cal.App.4th 810.
204 Gov. Code, § 6255.
205 Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325.
206 Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325.
207 Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325.
208 Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325.
209 California First Amendment Coalition v. Superior Court
(1998) 67 Cal.App.4th 159; W
ilson v. Superior Court (1996)
51 Cal.App.4th 1136; Rogers v. Superior Court (1993) 19 Cal.App.4th 469.
210 Cal. Const., art. I, § 3, subd. (b)(1).
211 Cal. Const., art. I, § 3, subd. (b)(2).
212 Cal. Const., art. I, § 3, subd. (b)(2).
42 THE PEOPLE’S BUSINESS
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Chapter 4: Exemptions
213 Cal. Const., art. I, § 3, subd. (b)(2).
214 New York Times v. Superior Court (1990) 218 Cal.App.3d 1579; San Gabriel Tribune v. Superior Court (1983) 143
Cal.App.3d 762; Rogers v. Superior Court (1993) 19 Cal.App.4th 469.
215 Cal. Const., art. I, § 3, subd. (b)(5); International Federation of Professional and Technical Engineers, Local 21, AFL-
CIO v. Superior Court (2007) 42 Cal.4th 319.
216 BRV, Inc. v. Superior Court (2006) 143 Cal.App.4th 742.
217 87 Ops.Cal.Atty.Gen. 181 (2004); 88 Ops.Cal.Atty.Gen. 16 (2005); 89 Ops.Cal.Atty.Gen. 204 (2006).
218 International Federation of Professional and Technical Engineers, Local 21, AFL-CIO v. Superior Court (2007) 42
Cal.4th 319.
CHAPTER 5:
JUDICIAL REVIEW AND REMEDIES
OVERVIEW
THE TRIAL COURT PROCESS
AND DECISION
APPELLATE REVIEW
ATTORNEY FEES AND COSTS
44 THE PEOPLE’S BUSINESS
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Chapter 5: Judicial Review and Remedies
Q OVERVIEW
The Act establishes a special, expedited judicial process to resolve disputes over the public’s right to
inspect or receive copies of public records.
1
In contrast to other governmental transparency laws such as
the Ralph M. Brown Act,
2
the Act contains no criminal penalties for a local agency’s failure to comply with
the Act. Rather, the Act is enforced through an expedited civil judicial process in which any person may ask
a judge to compel a public agency to disclose a public record or a class of public records.
3
A person who
successfully enforces his or her rights under the Act is entitled to receive reasonable attorney fees and
court costs.
4
This chapter discusses the special rules that apply to lawsuits brought to enforce the Act.
Q THE TRIAL COURT PROCESS AND DECISION
Any person may file a civil action for injunctive or declaratory relief or writ of mandate to enforce his or her
right to inspect or receive a copy of any public record under the Act.
5
The action may be filed in any court
of competent jurisdiction, which typically is the superior court in the county where the records or some
part of them are maintained.
6
The Act does not contain a specific time period in which the action must be
filed. Therefore, such action must be filed in a manner consistent with traditional actions for injunctive or
declaratory relief or writ of mandate and would be subject to any limitations periods or equitable concepts
such as laches applicable to such actions.
A local agency may not commence an action for declaratory relief to determine the agency’s obligation to
disclose records to a member of the public under the Act.
7
Allowing a local agency to seek declaratory relief
to determine whether it must disclose records to a member of the public would frustrate the Legislature’s
purpose of furthering the fundamental right of every person in the state to have prompt access to
information in the possession of local agencies. However, a local agency is a “person” under the Act and
may maintain an action to compel the disclosure of records under the Act.
8
Practice Tip:
Although the Act does not
contain criminal penalties,
violations of the Act can
lead to public criticism of
both the local agency and
the individuals involved,
payment of attorney fees by
the local agency, and other
non-criminal sanctions.
Certain local agencies may
also have local “sunshine”
ordinance policies that
make violations of the Act
grounds for discipline of
employees or officials.
THE PEOPLE’S BUSINESS
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Chapter 5: Judicial Review and Remedies 45
A lawsuit brought to enforce the Act is not subject to the normal time periods that apply to other civil
actions. The judge in each case will establish the times for responsive pleadings and for hearings with the
object of securing a decision at the earliest possible time.
9
If the judge determines, based upon a verified
petition, that certain public records are being improperly withheld from a member of the public, the judge
will order the officer or person withholding the records to disclose the public record or show cause why he
or she should not do so.
10
In a typical action under the Act, the parties will file written arguments with the court to explain why the
records should be disclosed or withheld. The court will also hold a hearing to give the parties an opportunity
to argue the case. If permitted by the rules of evidence.
11
The
judge may examine the record or records at issue in camera, that
is, in the judge’s chambers and out of the presence and hearing
of others, to help decide the case.
12
The judge must decide the
case based on a review of the record or records (if such review is
permitted), the papers filed by the parties, any oral argument, and
additional evidence as the court may allow.
13
If the court finds that the public official’s decision to refuse
disclosure is not justified under the Act, the judge shall order the
public official to make the record public.
14
If the judge determines
that the public official was justified in refusing to make the record
public, he or she shall return the item to the public official without
disclosing its content with an order supporting the decision refusing
disclosure.
15
The court may also order some of the records to be
disclosed while upholding the decision to withhold other records.
In addition, the court may order that portions of the records be redacted and compel the disclosure of the
remaining portions of the records.
A local agency must disclose the public records pursuant to the trial court’s order unless a party obtains a
stay of the order or judgment through a petition to the appellate court. Absent a stay, any person who fails
to obey the order of the court shall be ordered to show cause why he or she is not in contempt of court.
16
Q APPELLATE REVIEW
As part of the expedited judicial review process established by the Act, a trial court’s order is not
considered to be a final judgment subject to the normal and often lengthy appeal process. In place of a
normal appeal, such orders are subject to immediate review through the filing of a petition to the appellate
court for the issuance of an extraordinary writ.
17
This manner of providing for appellate review through an
extraordinary writ procedure rather than a normal appeal has been held to be constitutional.
18
A party seeking review of a trial court’s order must file a petition for review with the appellate court within
20 days after he or she is served with a written notice of entry of the order, or within such further time not
exceeding an additional 20 days as the trial court may for good cause allow. If the written notice of entry of
the order is served by mail, the period within which to file the petition is increased by five days.
19
If a party wishes to prevent the disclosure of public records pending appellate review of the trial court’s
decision, that party must ask the appellate court for a stay of the order or judgment. The appellate court
shall not grant such a stay unless the petitioning party demonstrates both that it will sustain irreparable
damage because of the disclosure and that it is probable that the party will succeed on the merits of the
case in the appellate court.
20
46 THE PEOPLE’S BUSINESS
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Chapter 5: Judicial Review and Remedies
Because the trial court’s decision is not a final judgment for which there is an absolute right of appeal, the
appellate court may decline to review the case without a hearing or without issuance of a detailed written
opinion. However, since the intent of substituting writ review for the normal appeal process is to provide
for speedier appellate review, not to provide for less appellate review, an appellate court may not deny an
apparently meritorious writ petition that is timely presented and
procedurally sufficient merely because the petition presents no
important issue of law or because the court considers the case
less worthy of its attention than other matters.
21
Once a court of appeal accepts a petition for review, the appellate
process proceeds in much the same fashion as a normal appeal.
The appellate court will establish a briefing schedule and set the
matter for a hearing once briefing is complete. The scope of review
is equivalent to the scope of review on appeal, and an appellate
court will consider the merits of a trial court’s order as if the case
were on appeal.
22
The appellate court will conduct an independent
review of the trial court’s ruling, with the factual findings made by
the trial court being upheld if based on substantial evidence.
23
The decision of the appellate court, whether to deny review or on
the merits of the case, is subject to discretionary review by the California Supreme Court through a petition
for review.
While the trial court’s decision regarding disclosure of records is not subject to the normal appeal process,
other decisions of the trial court related to a lawsuit under the Act are subject to appeal. Thus, a trial
court’s decision to deny attorney fees and costs under the Act is subject to appeal and is not subject to the
extraordinary writ process.
24
Similarly, an award of sanctions in a public records case is subject to appeal
rather than a petition for an extraordinary writ.
25
Q ATTORNEY FEES AND COSTS
If the plaintiff prevails in the litigation, the judge must award court costs and reasonable attorney fees to
the plaintiff.
26
A plaintiff will be considered the prevailing party if the lawsuit results in the disclosure of
some or all of the requested records. This means that the plaintiff will likely be considered the prevailing
party even when he or she has only achieved a partial victory in the lawsuit.
27
In addition, a plaintiff may be
considered the prevailing party when the local agency discloses some or all of the records after the lawsuit
is filed but prior to a court order requiring such disclosure, if the agency’s disclosure was the result of or
prompted by the lawsuit.
28
On the other hand, if the local agency did not decline to provide the records but,
acting diligently, was only able to disclose them after the filing of the lawsuit, the plaintiff will likely not be
considered the prevailing party because the lawsuit did not result in or prompt the disclosure.
29
A member of the public may be entitled to an award of attorney fees and costs even when he or she is not
denominated as the “plaintiff” in the action.
30
If the party is the functional equivalent of a plaintiff in a Public
Records Act lawsuit—that is, if the party’s intent to invoke the Act prompted the litigation—that party may
be considered the prevailing plaintiff under the Act.
The local agency, not the public official who made the decision, must pay any award of costs and fees. The
award does not become a personal liability of the public official who made the decision not to disclose the
public records.
31
THE PEOPLE’S BUSINESS
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Chapter 5: Judicial Review and Remedies 47
The successful local agency defendant may seek an award of attorney fees and court costs against an
unsuccessful plaintiff, but the agency will only obtain such an award in very limited circumstances. Only
when the court finds that the plaintiff’s case is clearly frivolous may it award court costs and reasonable
attorney fees to the local agency.
32
Endnotes
1 Gov. Code, §§ 6258, 6259.
2 Gov. Code, § 54950 et seq.
3 Gov. Code, § 6258.
4 Gov. Code, § 6259, subd. (d).
5 Gov. Code, § 6258.
6 Gov. Code, § 6259, subd. (a).
7 Filarsky v. Superior Court (2002) 28 Cal.4th 419.
8 Los Angeles Unified School Dist. v. Superior Court (2007) 151 Cal.App.4th 759.
9 Gov. Code, § 6258.
10 Gov. Code, § 6259, subd. (a).
11 Evid. Code. § 915.
12 Gov. Code, § 6259, subd. (a).
13 Gov. Code, § 6259, subd. (a).
14 Gov. Code, § 6259, subd. (b).
15 Gov. Code, § 6259, subd. (b).
16 Gov. Code, § 6259, subd. (c).
17 Gov. Code, § 6259, subd. (c).
18 Powers v. City of Richmond (1995) 10 Cal.4th 85.
19 Gov. Code, § 6259, subd. (c).
20 Gov. Code, § 6259, subd. (c).
21 Powers v. City of Richmond (1995) 10 Cal.4th 85.
22 State Bd. of Equalization v. Superior Court (1992) 10 Cal.App.4th 1177.
23 Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325.
24 Los Angeles Times v. Alameda Corridor Transportation Authority (2001) 88 Cal.App.4th 1381.
25 Butt v. City of Richmond (1996) 44 Cal.App.4th 925.
26 Gov. Code, § 6259, subd. (d).
27 Los Angeles Times v. Alameda Corridor Transportation. Authority (2001) 88 Cal.App.4th 1381.
28 Rogers v. Super. Ct. (1993) 19 Cal.App.4th 469; Belth v. Garamendi (1991) 232 Cal.App.3d 896.
29 Motorola Communication & Electronics, Inc. v. State Dept. of General Services (1997) 55 Cal.App.4th 1340; Rogers v.
Superior Court (1993) 19 Cal.App.4th 469.
30 Fontana Police Depart. v. Villegas Banuelos (1999) 74 Cal.App.4th 1249.
31 Gov. Code, § 6259, subd. (d).
32 Gov. Code, § 6259, subd. (d);
Butt v. City of Richmond (1996) 44 Cal.App.4th 925.
48 THE PEOPLE’S BUSINESS
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Chapter 5: Judicial Review and Remedies
CHAPTER 6:
RECORDS MANAGEMENT
PUBLIC MEETING RECORDS
ELECTRONIC RECORDS
ELECTRONIC DISCOVERY
RECORDS RETENTION AND
DESTRUCTION LAWS
50 THE PEOPLE’S BUSINESS
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Chapter 6: Records Management
Q PUBLIC MEETING RECORDS
Any person may request to receive a copy of a local agency meeting agenda or agenda packet by mail.
1
If
requested, the agenda material must be made available in appropriate alternative formats to persons with
disabilities.
2
If a local agency receives a written request to send agenda materials by mail, the materials
must be mailed when the agenda is posted or distributed to a majority of the agency’s legislative body,
whichever occurs first.
3
Requests for mailed copies of agendas or agenda packets are valid for the calendar
year in which they are filed, but must be renewed after January 1 of each subsequent year.
4
Local agency
legislative bodies may establish a fee for mailing agenda materials.
5
The fee may not exceed the cost of
providing the service.
6
Failure of a requester to receive agenda material is not a basis for invalidating action
taken at the meeting for which agenda material was not received.
7
Writings that are distributed to all or a majority of all members of a legislative body in connection with a
matter subject to discussion or consideration at a public meeting of the body are public records (subject
to the exemptions in the Act) and must be made available upon request without delay.
8
Where such
nonexempt writings are distributed during a public meeting, in addition to making them available for public
inspection at the meeting (if prepared by the agency or member of its legislative body) or after the meeting
(if prepared by another person), they must be made available in appropriate alternative formats upon
request by a person with a disability.
9
The agency may charge a fee for a copy of this record; however, no
surcharge may be imposed on persons with disabilities.
10
Records pertaining to agenda items must be
made available for public inspection at a location listed in the meeting agenda if the records are distributed
less than 72 hours prior to the meeting.
11
Practice Tip:
Some agencies have
found it useful to adopt
electronic records policies
governing such issues as:
what electronic records
(for example, emails) are
considered “retained in
the ordinary course of
business” for purposes of
the Act; whether personal
electronic devices (like
computers, personal data
assistants, cell phones,
etc.) may be used to
store or send electronic
communications concerning
the agency, or whether
agency devices must be
used; etc.
THE PEOPLE’S BUSINESS
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Chapter 6: Records Management 51
Q ELECTRONIC RECORDS
“Public records” subject to the Act include “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.”
12
Therefore, records subject to the Act include records in any media, including
electronic media, in which government agencies may possess records. This is underscored by the definition
of “writings” treated as public records, which includes any “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.”
13
Some provisions of the Act deal
explicitly with electronic records.
The Act obligates agencies to provide electronic copies of existing, nonexempt records that are requested
in an electronic format that the agency has already used for itself or transmission to another agency, 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.
14
Duplication costs of electronic records are
limited to the direct cost of producing the electronic copy.
15
However, requesters may be required to bear
additional costs of producing the electronic copy, such as programming and computer services costs, if the
records are only produced at regularly scheduled intervals, or production of the record would require data
compilation, extraction or programming.
16
Agencies are not required to reconstruct electronic copies of
records no longer available to the agency in electronic format.
17
Electronic records may include “metadata,” or data about data contained in a record that is not visible in
the text. For example, metadata may describe how, when or by whom particular data was collected, and
contain information about document authors, other documents, or commentary or notes. No provision
of the Act expressly addresses metadata, and no reported court opinions have considered whether or
the extent to which metadata is subject to disclosure. Nor does the Act or its case law provide guidance
on whether agencies have a duty to disclose electronic public
records that contain exempt metadata if the agency is unable to
electronically remove the metadata.
Electronic records maintained by local agencies may also include
geographic information system (GIS) records and GIS technology
that permits storage, processing and display of geographical
information. Many local agencies use GIS programs and databases
for a broad range of purposes, including the creation and editing
of maps depicting property and facilities of importance to the
agency and the public. As with metadata, the Act does not
expressly address, and no published cases discuss, GIS information
disclosure.
The Act permits government agencies to develop and
commercialize computer software and to benefit from copyright protections for agency-developed
software. Computer software developed by state or local agencies, including computer mapping systems,
computer programs, and computer graphics systems, is not a public record subject to the Act.
18
As a result,
public agencies are not required to provide copies of agency-developed software pursuant to the Act. The
Act authorizes state and local agencies to sell, lease, or license agency-developed software for commercial
or noncommercial use.
19
The exception for agency-developed software does not affect other public agency
electronic records.
20
Practice Tip:
Local agencies should
consult with legal
counsel concerning
disclosure of metadata
or GIS information.
52 THE PEOPLE’S BUSINESS
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Chapter 6: Records Management
Q ELECTRONIC DISCOVERY
The importance of maintaining a written document retention policy is evident by revisions to Rule 26 of the
Federal Rules of Civil Procedure, which took effect December 1, 2006. Rule 26 requires parties in federal
court litigation to address the production and preservation of electronic records. These rule changes do
not require a local agency to alter its routine management or storage of electronic information. They do,
however, illustrate the importance of having formal document retention policies.
In general, once federal court litigation begins, a local agency has a duty to preserve information for
discovery. In some cases, the local agency may have to suspend the routine operation of its information
systems in order to preserve information relevant to the litigation.
Q RECORDS RETENTION AND DESTRUCTION LAWS
The Act is not a records retention statute. The Act does not prescribe what type of information a public
agency may gather or keep, or provide a method for correcting records.
21
Its sole function is to provide for
disclosure.
22
Other provisions of state law govern retention of public records.
Local agencies generally must retain public records for a minimum of two years, although some records
may be destroyed sooner.
23
For example, duplicate records that are less than two years old may be
destroyed if no longer required.
24
State law does not permit destruction of records affecting title to or
liens on real property, court records, records required to be kept by statute, and the minutes, ordinances,
or resolutions of the legislative body or city board or commission.
25
Most local agencies adopt records
retention schedules as a key element of a records management system. The Secretary of State has
provided local governments with records management guidelines.
26
However, there is no definition of the “public records” subject to
state records retention statutes.
27
The Attorney General has opined
that the definition of “public records” for purposes of the records
retention statutes is “a thing which constitutes an objective lasting
indication of a writing, event or other information, which is in the
custody of a public officer and is kept either (1) because a law
requires it to be kept or (2) because it is necessary or convenient
to the discharge of the public officer’s duties and was made or
retained for the purpose of preserving its informational content
for future reference.”
28
Under this definition, local agency officials
retain some discretion concerning what agency records must be
kept pursuant to state records retention laws. Similarly, the Act
allows for local agency discretion concerning what preliminary
drafts, notes or interagency or intra-agency memoranda are
retained in the ordinary course of business.
29
Practice Tip:
The definition of “public
records” for purposes of
the Act and state records
retention laws are different,
and because local agency
officials retain some
discretion under the Act and
state records retention laws
concerning what records
an agency retains, the fact
that a particular type of
public record is subject to
disclosure under the Act
does not necessarily mean
that local agencies must
retain such records.
THE PEOPLE’S BUSINESS
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Chapter 6: Records Management 53
Endnotes
1 Gov. Code, § 54954.1.
2 Gov. Code, § 54954.1.
3 Gov. Code, § 54954.1.
4 Gov. Code, § 54954.1.
5 Gov. Code, § 54954.1.
6 Gov. Code, § 54954.1.
7 Gov. Code, § 54954.1.
8 Gov. Code, § 54957.5, subd. (a).
9 Gov. Code, § 54957.4, subd. (c)
10 Gov. Code, § 54957.5, subd. (d).
11 Gov. Code, § 54957.5, subds. (b)(1),(2).
12 Gov. Code, § 6252, subd. (e), emphasis added.
13 Gov. Code, § 6252, subd. (g).
14 Gov. Code, § 6253.9, subd. (a).
15 Gov. Code, § 6253.9, subd. (a)(2).
16 Gov. Code, § 6253.9, subd. (b).
17 Gov. Code, § 6253.9, subd. (c). See “No Duty to Create a Record or to Create a Privilege Log,” p. 13.
18 Gov. Code, § 6254.9, subds. (a), (b).
19 Gov. Code, § 6254.9, subd. (a).
20 Gov. Code, § 6254.9, subd. (d).
21 Los Angeles Police Dept. v. Superior Court (1977) 65 Cal.App.3d 661.
22 Los Angeles Police Dept. v. Superior Court (1977) 65 Cal.App.3d 661.
23 Gov. Code, § 34090, subd. (d).
24 Gov. Code, § 34090.7.
25 Gov. Code, § 34090, subds. (a), (b), (c), (e).
26 The Secretary of State’s Local Government Records Management Guidelines may be viewed at
http://www.sos.ca.gov/archives/locgov/localgovrm7.pdf.
27 64 Ops.Cal.Atty.Gen. 317 (1981).
28 64 Ops.Cal.Atty.Gen. 317 (1981).
29 Gov. Code, § 6254, subd. (a). See “Drafts,” p. 20.
54 THE PEOPLE’S BUSINESS
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Chapter 6: Records Management
THE PEOPLE’S BUSINESS:
A Guide to the California Public Records Act
APPENDIX:
FREQUENTLY REQUESTED
INFORMATION AND RECORDS
56
Information/Records Requested Must the Information/Record
Generally Be Disclosed?
Applicable Authority
Agenda materials distributed to
a legislative body relating to an
open session item
Yes Gov. Code, § 54957.5. F
or additional information, see p. 50
of “The People’s Business: A Guide to the California Public
Records Act,” hereafter referred to as “the Guide”.
Calendars of Elected Officials
Probably not, but note that
ther
e is no published appellate
court decision on this issue
post- Prop. 59.
1
Times Mirror Co. v. Superior Court (1991) 53 Cal.3d. 1325
and Rogers v. Superior Court (1993) 19 Cal.App.4th 469 for
a discussion of the deliberative process privilege. See also,
87 Ops.Cal.Atty.Gen. 181 (2004); 88 Ops.Cal. Atty.Gen. 16
(2005); 89 Ops.Cal.Atty.Gen. 204 (2006), as to scope of Prop.
59. For additional information, see p. 35 of the Guide.
Contact information – Names,
addresses
, and phone numbers of
crime victims or witnesses
No Gov. Code, § 6254(f)(2). F
or additional information, see p. 29
of the Guide.
Citizen complaints against peace
officers – annual summary report
to
AG
Yes Pen. Code, § 832.7(c). F
or additional information, see p. 30
of the Guide.
Citizen complaint information –
names
, addresses, and telephone
numbers
No City of San Jose v
. San Jose Mercury News (1999) 74 Cal.
App.4th 1008. For additional information, see p. 30 of the
Guide.
Claims for damages
Yes Poway Unified School District v
. Superior Court (1998) 62
Cal.App.4th 1496.
Election petitions
(initiative
, referendum and
recall petitions)
No, except to proponents if petition
found to be insufficient.
Gov
. Code, § 6253.5; Elec. Code, §§ 17200, 17400, and
18650; Evid. Code, § 1050. For additional information,
see p. 21 of the Guide.
Emails between government staff
It depends. Generally, emails are deleted by administrative policy and
ar
e not retained in the ordinary course of business. (See §
6254(a)). See also Times Mirror v. Superior Court (1991) 53
Cal.3d 1325; Rogers v. Superior Court (1993) 19 Cal.App.4th
469 for a discussion of the deliberative process privilege.
For additional information, see p. 35 of the Guide.
1 The analysis with respect to elected officials may not necessarily apply to executive officers such as City Managers or Chief Administrative Officers,
and there is no case law directly addressing this issue.
Frequently Requested Information and Records
This table is intended as a general guide on the applicable law and is not intended to provide legal advice. The facts and circumstances of each request
should be carefully considered in light of the applicable law. A local agency’s legal counsel should always be consulted when legal issues arise.
THE PEOPLE’S BUSINESS:
A Guide to the California Public Records Act
57
Information/Records Requested Must the Information/Record
Generally Be Disclosed?
Applicable Authority
Employment Agreements/
Contracts
Yes Gov. Code, §§ 6254.8 and 53262(b). F
or additional
information, see p. 30 of the Guide.
Form 700 (Statement of
Economic Interests) and
Campaign Statements
Yes
2
Gov. Code, § 81008
Grading documents including
geology reports
, compaction
reports, and soils reports
submitted in conjunction with an
application for a building permit
Yes 89 Ops.Cal.Atty.Gen. 39 (2006); but see Gov. Code, §
6254(e).
For additional information, see p. 19 of the Guide.
Juvenile Court Records
No T
.N.G. v. Superior Court (1971) 4 Cal.3d. 767; Welf. & Inst.
Code, §§ 827 and 828. For additional information, see p. 24
of the Guide.
Legal billing statements
Generally, yes, as to amount billed.
No
, as to any billing detail which
reflects an attorney’s impressions,
conclusions, opinions or legal
research or strategy.
Gov. Code, § 6254(k); Evid. Code, § 950, et seq.; Smith v.
Laguna Sun Villas Community Assoc. (2000) 79 Cal.App.4th
639; United States v. Amlani, 169 F.3d 1189 (9th Cir. 1999);
Clarke v. American Commerce National Bank, 974 F.2d.
127 (9th Cir. 1992); but see Gov. Code, § 6254(b) as to the
disclosure of billing amounts reflecting legal strategy in
pending litigation. For additional information, see p. 19, 28
of the Guide.
Library Circulation Records
No Gov. Code, § 6254(j) and 6267. F
or additional information,
see p. 25 of the Guide.
Medical Records
No Gov. Code, § 6254(c). F
or additional information, see p. 25
of the Guide.
Mental Health detentions
(5150 reports)
No Welf. & Inst. Code, § 5328. F
or additional information,
see p. 24 of the Guide.
Minutes of Closed Sessions
No Gov. Code, § 54957.2(a). F
or additional information,
see p. 19, 34, 35 of the Guide.
Notices/Orders to property
owner re:
housing/building code,
violations
Yes Gov. Code, § 6254.7(c). F
or additional information, see p. 20
of the Guide.
Official Building Plans
(ar
chitectural drawings and plans)
Inspection only. Copies provided
under certain cir
cumstances.
Health & Saf. Code, § 19851; see also 17 U.S.C. §§101 and
102. For additional information, see p. 19 of the Guide.
Personal Financial Records
No Gov. Code, § 7470, 7471, 7473; see also Gov. Code, §
6254(n).
For additional information, see p. 25 of the Guide.
Frequently Requested Information and Records, Continued
2 It should be noted that these statements must be made available for inspection and copying not later than the second business day following the
day on which the request was received.
58
Information/Records Requested Must the Information/Record
Generally Be Disclosed?
Applicable Authority
Personnel
• Employee inspection of own
personnel file
• Names and salaries (including
performance bonuses and overtime)
of public employees,
including peace
officers
• Test Questions, scoring keys, and
other examination data.
Yes, with exceptions.
Yes, absent unique, individual
circumstances. However, other
personal information such as social
security numbers, home telephone
numbers and home addresses are
generally exempt from disclosure
per Gov. Code, § 6254(c).
No
For additional information, see p. 29-31 of the Guide.
•
Lab. Code, § 1198.5. This section applies to charter cities.
See Gov. Code, § 31011. For peace officers, see Gov.
Code, § 3306.5.
• International Federation of Professional and Technical
Engineers, Local 21, AFL-CIO, et al. v. Superior Court
(2007) 42 Cal.4th 319.
•
Gov. Code, § 6254(g)
Police
• Citizen complaint policy
• Criminal history
• Criminal investigative r
eports
including booking photos, audio
recordings, dispatch tapes, 911
tapes and in-car video
• Crime reports
• Gang intelligence information
• In custody death reports to AG
• List of concealed weapon permit
holders
• Concealed weapon permits and
applications
•
Officer’s personnel file
•
Peace officer’s name, employing
agency and employment dates
• Names of officers involved in critical
incidents
•
Traffic accident reports
Yes
No
No
Yes
No
Yes
Yes
Yes, except for home/ business
address and medical/psychological
history.
No
Yes, absent unique, individual
circumstances.
Yes, absent unique, individual
circumstances.
Yes, to certain parties.
For additional information, see p. 22-25 of the Guide.
•
Pen. Code, § 832.5(a)(1)
• Pen. Code, § 13300 et seq.; Pen. Code, § 11105 et seq.
• Gov. Code, § 6254(f); Haynie v. Superior Court (2001) 26
Cal.4th 1061.
• Gov. Code, §§ 6254(f), 6255
• Gov. Code, § 6254(f); 79 Ops.Cal.Atty Gen. 206 (1996).
• Gov. Code, § 12525
• Gov. Code, § 6254(u)(1); CBS, Inc. v. Block (1986) 42
Cal.3d 646.
• Gov. Code, § 6254(u)(1); CBS, Inc. v. Block (1986) 42
Cal.3d 646.
This information can only be disclosed through a Pitchess
motion. Pen. Code, §§ 832.7 and 832.8; Evid. Code, §§
1043-1045.
• Commission on Peace Officer Standards and Training
v. Superior Court (2007) 42 Cal.4th 278.
• Commission on Peace Officer Standards and Training v.
Superior Court (2007) 42 Cal.4th 278; New York Times v.
Superior Court (1997) 52 Cal.App.4th 97.
• Veh. Code, § 16005 [only disclose to those needing the
information, such as insurance companies, and the
individuals involved].
Frequently Requested Information and Records, Continued
59
Information/Records Requested Must the Information/Record
Generally Be Disclosed?
Applicable Authority
Public Contracts
• Bid Proposals,
RFP proposals
• Financial information submitted
for bids
• Trade secrets
Yes, but only after negotiations are
complete.
No
No
•
Michaelis v. Superior Court (2006) 38 Cal. 4th 1065;
but see Gov. Code, § 6255 and Evid. Code, § 1060.
For additional information, see p. 31-32 of the Guide.
• Gov. Code, §§ 6254(a),(h) and (k), 6254.15 and 6255;
Schnabel v. Superior Court of Orange County (1993) 5
Cal.App.4th 704, 718. For additional information,
see p. 31-32 of the Guide.
• Evid. Code, § 1060; Civ. Code, § 3426, et seq. For
additional information, see p. 33 of the Guide.
Purchase price of real property
Yes, after the agency acquires the
property
.
Gov. Code, § 7275
Real Estate
• Property information (such as selling
assessed value
, square footage,
number of rooms)
• Appraisals and offers to purchase
Yes
Yes, but only after conclusion of the
property acquisition.
For additional information, see p. 32 of the Guide.
•
88 Ops.Cal.Atty.Gen. 153 (2005)
•
Gov. Code, § 6254(h); Note that Gov. Code, § 7267.2
requires release of more information to the property
owner while the acquisition is pending.
Report of arrest not resulting in
conviction
No, except as to peace officers or
peace officer applicants
.
Lab. Code, § 432.7
Settlement Agreements
Yes Register Division of Freedom Newspapers v
. County
of Orange (1984) 158 Cal.App.3d 893. For additional
information, see p. 28 of the Guide.
Software, including mapping
systems
No Gov. Code, § 6254.9; 88 Ops.Cal.Atty.Gen. 153 (2005).
F
or additional information, see p. 51 of the Guide.
Taxpayer information received
in connection with collection of
local taxes
No Gov. Code, § 6254(i). F
or additional information, see
p. 33 of the Guide.
Telephone Records of Elected
Officials
Yes, as to expense totals. No,
as to phone numbers called.
See Rogers v. Superior Court (1993) 19 Cal.App.4th 469.
For additional information, see p. 35 of the Guide.
Utility usage data
No, with certain exceptions. Gov. Code, § 6254.16. F
or additional information, see p. 33
of the Guide.
Voter information
No Gov. Code, § 6254.4. F
or additional information, see p. 21
of the Guide.
Frequently Requested Information and Records, Continued
60
THE PEOPLE’S BUSINESS:
A GUIDE TO THE CALIFORNIA PUBLIC RECORDS ACT
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