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The California Public Records Act:What Every Administrator Needs to Know
July 19, 2016
L. Carlos Villegas, Esq.
Jose A. Mendoza, Esq.
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The PRA’s Purpose
Transparency concerning theconduct of the people’sbusiness.
Provide access to record.
General policy of the PRAfavors disclosure.
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What Is A Public Record?
"any writing[s] containing informationrelating to the conduct of the public'sbusiness prepared, owned, used, or retainedby any state or local agency regardless ofphysical form or characteristics.”
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What Is A Public Record?
A “writing,” including:
Handwritten, typewritten, emailed
Photographs or video
Electronic documents
“or combinations thereof . . . regardlessof the manner in which the record hasbeen stored.”
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What is a Public Record?
PRA provides public access toexisting documents
No duty to create documents
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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 orconvenient to school district business?
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Examples of Public Records
Financial records
District reports and memorandums
Communications with public
District emails
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Receipt of PRA Request
Does the request reasonably describean identifiable record?
10-day response
“Prompt” production of records
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District’s ObligationsFirst Step:
10 calendar days
Does the District have responsiverecords? Yes or no?
Estimated date and time whenrecords will be made available
Duplication costs?
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District’s Obligations
“Unusual circumstances” extend initial10-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 ormore departments in same agency
Need to create means to compile or extractdata
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Is it Even a PRA request?
Reasonably describes identifiable record(s)?
Only poses questions?
Seeks existing records?
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District’s Duty to Assist
District has duty to assist Requester
Duty satisfied once records are provided orif records exempt from disclosure
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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
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Exempt Information
Can exempt information be redacted?
Are portions of the record disclosable?
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Exempt Records
Preliminary / Not Retained
Drafts and notes not retained in ordinarycourse of business,
Public interest must also favor non-disclosure
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Exempt Records
Pending Litigation
Records pertaining to pending litigation towhich the District is a party, until finallyadjudicated or settled
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Exempt Records
Personnel
Personnel, medical, or similar files, the disclosureof which would constitute an unwarrantedinvasion of personal privacy
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Exempt Records
Personnel (continued)
Employment contracts are disclosable
Public employee salaries are disclosable
Special cases: public interest may outweighprivacy of personnel records. E.g., “substantial”and “well founded” complaints/allegations againstpublic employees.
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Exempt Records
Confidential/Privileged under law
for example: Attorney-Client Privileged
Right to Privacy – Cal. Const. Art. I sec. 1
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Exempt Records
Other records protected from disclosure byoutside law:
Student Records – FERPA; Ed Code
Medical Records – HIPAA; State Law
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Exempt RecordsCatch-All Exception
Balancing test
Public interest in non-disclosure outweighsdisclosure
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Exempt RecordsCatch-All Exception
Examples:
applications for employment
evaluations/recommendations discussingapplicant's fitness for employment
personal phone records of elected officials
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PRA Lawsuits Requester can challenge a school district’s
withholding of a record
Court decides whether or not the recordsshould be disclosed
The court shall award costs andreasonable attorney fees to aprevailing plaintiff
Courts rarely award fees and costs to publicagencies
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Hot Topic #1:Personal Devices/Emails
Text messages.
Emails.
Whatsapp.
Snapchat.
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Hot Topic #1: City of San Jose
City resident sued for disclosure ofprivate voicemails, e-mails, and textmessages relating to city business.
Are “private” communications, which arenot stored on City servers, “publicrecords” within the meaning of the PRA?
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Hot Topic #1: City of San Jose
Appellate Court: PRA does notextend to writings sent orreceived on private devices,including smartphones andpersonal email accounts.
Under review by CaliforniaSupreme Court.
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Hot Topic #2: Morgan Hill
Not a PRA Case
Discovery request for student information
Federal court initially ruled that educationalrecords may be released
Court backtracked after overwhelmingparent opposition
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Hot Topic #2:Student Information
Family Educational Rights and Privacy Act(FERPA)
California Education Code 49073 et. seq.
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Hot Topic #3:Employee Information International Federation of Professional and
Technical Engineers v. Superior CourtEmployee names and salaries are public records.
Commission on Peace Officer Standards andTraining v. Superior CourtEmployee names, employing departments,
hiring and termination dates are public.
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Hot Topic #3:Employee Information
Contracts are public records
Includes settlement agreements
Employee discipline
Depends . . .
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Hot Topic #4:Caldecott v. Superior Court
Former employee (administrator) requestedrecords concerning employee’s owncomplaint against the school district
School district denied request based on:
Personal privacy
Official information
Attorney-Client privilege
Deliberative process
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Hot Topic #4:Caldecott v. Superior Court
School district also refused becauseemployee already possessed the documents
Court held that school district must providerecords
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Hot Topic #5: Large DataRequests
Requests for electronic records in electronicformat
For-profit marketing
Non-profit legal organizations
Data Research Partners
Schoolie, Inc.
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Hot Topic #5: Large DataRequests
Emails and PDFs are digital records.
What about databases?
Student Database
Employee Records
Cloud Data
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Hot Topic #5: Large DataRequests
Sander v. State Bar of Cal.
How to treat records orinformation in databases?
Creating new records?
Unduly burdensome?
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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?
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PRA Tips and Best Practices
Waiver
School Districts are permitted to “waive” privilegesand exemptions.
However, whenever a public employer discloses apublic record which is otherwise exempt fromdisclosure pursuant to the Act, the disclosureconstitutes a waiver of the exemption to the samepublic record for all requestors.
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PRA Tips and Best Practices
Display the District’scommitment totransparency.
Provide access to records“promptly.”
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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
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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.
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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
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.
