Records Disclosure Laws for California Public Agencies – How to Comply

1. Records DisclosureLaws for CaliforniaPublic Agencies – How to Comply

2. Overview of Records Laws • California Public Records Act (“CPRA”) v. Freedom of Information Act (“FOIA”) • Education Code - Ed. Code § 49060 • Family Educational Rights and Privacy Act (“FERPA”) - Pub. L. 103-382, 34 C.F.R. 99 • Subpoenas – Criminal and Civil

3. California Public Records Act (“CPRA”) and Freedom of Information Act (“FOIA”) • CPRA applies to local agencies. Local agencies include boards, commissions, advisory bodies • FOIA applies to federal agencies only • Duty to construe FOIA requests as CPRA requests

4. CPRA • Government Code sections 6250-6276.48: • “..access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in the state…”

5. Types of Documents • What is a “writing”? • Any document prepared, owned, used, retained by local agency in any form • Emails/Computer • Videos • DVDs/CDs • Photographs • What is not a “writing”? • Not required to create something that doesn’t exist

6. Disclosure is the Rule, Unless a Specific Exemption Applies • Preliminary drafts, notes not retained in ordinary course where public interest in nondisclosure outweighs • Pending litigation • Personnel, medical or similar files • Arrest records, investigations

7. Disclosure is the Rule, Unless a Specific Exemption Applies (cont’d) • Library circulation records • Privileged documentation • Social services records • Medical insurance program records • Exam materials • Taxpayer information

8. Some Specific Exemptions • Attorney-Client Privilege or Work Product • Closed Session Materials • Deliberative Process Privilege • Trade Secrets • Settlement Discussions • Patient-Doctor/Psychotherapist • Constitutional or Statutory Privacy

9. Privacy Rights • California and U.S. Constitutional Right to Privacy - duty to invoke for third parties • Confidentiality of Medical Information Act • Criminal History Summaries - DOJ • Consumer Credit Reporting Act - Background Investigations • Other Specific Statutes: ex., Ed Code § 49558 - applications for free/reduced meals

10. Duty of the Public Agency to Assist With Request • Assist public in formulating request for record • Provide suggestions to overcome objection to nondisclosure • Accept oral requests for records, or assist individual to prepare the request in writing

11. When May Records Be Inspected? • Public records are to be open for inspection during normal business hours • Staff need not disrupt operations to allow immediate access, but must make prompt decision as to whether to grant immediate access • No ability to limit the hours records may be inspected

12. Walking Through the Steps of CPRA Compliance • Request for public records made • Agency written response within 10 days as to whether record will be produced. • Is the request for a public record? • Any exemption, privilege or other basis apply? • Does the record exist? • Letter confirming request and agency’s response • If unable to decide within 10 days, send a letter to extend the written response time by 14 days; letter must provide a valid reason for the extension • Do NOT withhold records without Board approval!

13. Tips for Written Response • Confirm the date the CPRA request was actually received • Memorialize each item requested and its response • The District received your request for personnel records of Jane Doe dated January 1, 2002. Your request is denied. Any documents that may exist responsive to this request are exempt. (See Gov. Code, § 6254.)

14. Tips for Written Response, cont’d • Advise re estimated costs per policy • Get “deposit” in advance • We have received your request for all Board agendas prepared in 2008, 2009, and 2010. We estimate that your request seeks 5,000 pages. Pursuant to District policy, the District charges $.10 per page for public record requests. Accordingly, please deposit $500.00.

15. Actual Production of Records • Within “reasonable time” of written response. • No undue delay. • Agency cannot delay or obstruct copying of public records.

16. Direct Costs • Direct cost of copying only • Personnel time not included • Statutory Fees • Cost of programming and computer services necessary to produce a record not otherwise readily available?

17. Penalties • Injunctive/Declaratory Relief • Writ of Mandate • Court Costs and Attorney Fees

18. Other Means to Access Records • Educational Records • Ed. Code § 49069 - 5 days • Permissive, Mandatory, Non-records • Legal Custody • Subpoenas – Criminal/Civil • Labor Code – Personnel File • Union Requests for Information

19. Subpoenas • Civil and Criminal • Code of Civil Procedure sections 1985.3, 1985.4 and 1985.6 require “CONSUMER NOTICE” • Timelines for serving pursuant to Code of Civil Procedure

20. Roadmap to a Response • Analyze the request under the CPRA and find the field of available documents • Look at any exemptions which may prevent disclosure of a document • Analyze the request under the Education Code, Code of Civil Procedure, then the Labor Code

21. Questions? Scott Huber, Partner 2261 Lava Ridge Court Roseville, CA  95661 916-780-9009 - Main phone 916-787-7511 - Direct dial 916-780-9050 - Fax Email: shuber@cotalawfirm.com Website: http://www.cotalawfirm.com/