The California Public Records Act: What Every Administrator Needs to Know July 19, 2016 L. Carlos Villegas, Esq. Jose A. Mendoza, Esq. 1
The PRA s Purpose Transparency concerning the conduct of the people s business. Provide access to record. General policy of the PRA favors disclosure. 2
What Is A Public Record? "any writing[s] 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. 3
What Is A Public Record? A writing, including: Handwritten, typewritten, emailed Photographs or video Electronic documents or combinations thereof... regardless of the manner in which the record has been stored. 4
What is a Public Record? PRA provides public access to existing documents No duty to create documents 5
Really, What Is A Public Record? Not everything is a public record Is the record required to be kept? Is the record kept because it is necessary or convenient to school district business? 6
Examples of Public Records Financial records District reports and memorandums Communications with public District emails 7
Receipt of PRA Request Does the request reasonably describe an identifiable record? 10-day response Prompt production of records 8
District s Obligations First Step: 10 calendar days Does the District have responsive records? Yes or no? Estimated date and time when records will be made available Duplication costs? 9
District s Obligations Unusual circumstances extend initial 10-day notice up to an additional 14 days: Need to search for records at other locations Voluminous, separate and distinct records Need to consult with another agency or two or more departments in same agency Need to create means to compile or extract data 10
Is it Even a PRA request? Reasonably describes identifiable record(s)? Only poses questions? Seeks existing records? 11
District s Duty to Assist District has duty to assist Requester Duty satisfied once records are provided or if records exempt from disclosure 12
Records Exempt From Production Dozens of Exemptions from Disclosure Several apply to public school districts Exemptions permissive Narrowly construed District must establish exemption applies Also a catch-all balancing test exemption 13
Exempt Information Can exempt information be redacted? Are portions of the record disclosable? 14
Exempt Records Preliminary / Not Retained Drafts and notes not retained in ordinary course of business, Public interest must also favor non-disclosure 15
Exempt Records Pending Litigation Records pertaining to pending litigation to which the District is a party, until finally adjudicated or settled 16
Exempt Records Personnel Personnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy 17
Exempt Records Personnel (continued) Employment contracts are disclosable Public employee salaries are disclosable Special cases: public interest may outweigh privacy of personnel records. E.g., substantial and well founded complaints/allegations against public employees. 18
Exempt Records Confidential/Privileged under law for example: Attorney-Client Privileged Right to Privacy Cal. Const. Art. I sec. 1 19
Exempt Records Other records protected from disclosure by outside law: Student Records FERPA; Ed Code Medical Records HIPAA; State Law 20
Exempt Records Catch-All Exception Balancing test Public interest in non-disclosure outweighs disclosure 21
Exempt Records Catch-All Exception Examples: applications for employment evaluations/recommendations discussing applicant's fitness for employment personal phone records of elected officials 22
PRA Lawsuits Requester can challenge a school district s withholding of a record Court decides whether or not the records should be disclosed The court shall award costs and reasonable attorney fees to a prevailing plaintiff Courts rarely award fees and costs to public agencies 23
Hot Topic #1: Personal Devices/Emails Text messages. Emails. Whatsapp. Snapchat. 24
Hot Topic #1: City of San Jose City resident sued for disclosure of private voicemails, e-mails, and text messages relating to city business. Are private communications, which are not stored on City servers, public records within the meaning of the PRA? 25
Hot Topic #1: City of San Jose Appellate Court: PRA does not extend to writings sent or received on private devices, including smartphones and personal email accounts. Under review by California Supreme Court. 26
Hot Topic #2: Morgan Hill Not a PRA Case Discovery request for student information Federal court initially ruled that educational records may be released Court backtracked after overwhelming parent opposition 27
Hot Topic #2: Student Information Family Educational Rights and Privacy Act (FERPA) California Education Code 49073 et. seq. 28
Hot Topic #3: Employee Information International Federation of Professional and Technical Engineers v. Superior Court Employee names and salaries are public records. Commission on Peace Officer Standards and Training v. Superior Court Employee names, employing departments, hiring and termination dates are public. 29
Hot Topic #3: Employee Information Contracts are public records Includes settlement agreements Employee discipline Depends... 30
Hot Topic #4: Caldecott v. Superior Court Former employee (administrator) requested records concerning employee s own complaint against the school district School district denied request based on: Personal privacy Official information Attorney-Client privilege Deliberative process 31
Hot Topic #4: Caldecott v. Superior Court School district also refused because employee already possessed the documents Court held that school district must provide records 32
Hot Topic #5: Large Data Requests Requests for electronic records in electronic format For-profit marketing Non-profit legal organizations Data Research Partners Schoolie, Inc. 33
Hot Topic #5: Large Data Requests Emails and PDFs are digital records. What about databases? Student Database Employee Records Cloud Data 34
Hot Topic #5: Large Data Requests Sander v. State Bar of Cal. How to treat records or information in databases? Creating new records? Unduly burdensome? 35
PRA Tips and Best Practices Talk to the Requester. What are they looking for? Why are they looking? Limit the scope. What types of files must be searched for? What is the time frame that must be searched for? 36
PRA Tips and Best Practices Waiver School Districts are permitted to waive privileges and exemptions. However, whenever a public employer discloses a public record which is otherwise exempt from disclosure pursuant to the Act, the disclosure constitutes a waiver of the exemption to the same public record for all requestors. 37
PRA Tips and Best Practices Display the District s commitment to transparency. Provide access to records promptly. 38
Caution: Unintended Consequences Negative media attention Community concern Law enforcement investigation Assume 99% of documents you create, read, and receive are public records Public records include PDF s, Word documents, audiotapes, and video recordings 39
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41 Information in this presentation, including but not limited to PowerPoint handouts and the presenters' comments, is summary only and not legal advice. We advise you to consult with legal counsel to determine how this information may apply to your specific facts and circumstances.
Information in this presentation, including but not limited to PowerPoint handouts and the presenters' comments, is summary only and not legal advice. We advise you to consult with legal counsel to determine how this information may apply to your specific facts and circumstances. 42
Information in this presentation, including but not limited to PowerPoint handouts and the presenters' comments, is summary only and not legal advice. We advise you to consult with legal counsel to determine how this information may apply to your specific facts and circumstances. 43