PUBLIC RECORDS ACT TRANSPARENCY IN GOVERNMENT Public expects

PUBLIC RECORDS ACT TRANSPARENCY IN GOVERNMENT Public expects public agency to be transparent which the public equates with having nothing to hide Access to information is fundamental. Allows monitoring

CALIFORNIA CONSTITUTION • Constitutional amendment added by Proposition 59 • Provides generalized right of access • Public records access statutes must be liberally construed • Expressly preserves individual rights of privacy

Public Records Act • PRA: Government Code Sections 6250 -6276. 48 – Provides public access to state and local government records • General Rule-Records created or maintained by the local agency is presumed to be a public record unless a specific exception applies

PRA: Definitions • Public record – Any writing that is owned, used or retained by a governmental agency in the conduct of its official business regardless of physical form or characteristics • Writing – Any means of recording information including paper, audio tape, video tape, compact disc, DVD, computer diskette, computer hard drive, etc. – E-mail is included

Exemptions • Expressly provided in Govt. Code 6254 • Other provisions of state or federal law • Public interest balancing test under Govt. Code 6255

Litigation Exemption • Pending Litigation-Govt. Code 6254(b) – Exempts records specifically prepared for use in litigation – Exemption lasts only for duration of litigation – Settlement itself is disclosable – Claims are disclosable – Depositions are disclosable

Legal Advice Exemption • Attorney-client privilege – Protects confidential communications between attorney and client – Exemption is permanent – Public disclosure generally waives privilege • Attorney work product – Protects impressions and conclusions of attorney – Exemption is permanent – Applies to legal advice in litigation and nonlitigation contexts

Personnel Records Exemption • Applies to personnel, medical or similar records whose disclosure would constitute an unwarranted invasion of personal privacy – Defined by content, not location • Usually involves personal information required by employer • Does not cover information that would ordinarily be exchanged in casual conversation – Educational background, employment background, training

Personnel Records Exemption • Performance evaluations are exempt • Peace officer disciplinary records filed with CSC are confidential records • Salaries

Investigatory Records Exemption • Protects investigatory records used for law enforcement, licensing or correctional purposes • Protects records indefinitely • Exemption applies to entire record; redaction not necessary • Police incident reports, rap sheets and arrest records are exempt

Investigatory Records Exemption • If non-licensing administrative authority, must use public interest balancing test to protect investigative records • Public interest in nondisclosure is strongest during pendency of investigation

Deliberative Process Privilege • Affords some privacy to decision makers • Protects records involved in decisionmaking process, but does not protect records which reflect final decision and reasoning • Balancing test • If record contains both factual and deliberative materials, redact deliberative material

Drafts, Notes and Memoranda • Protects preliminary drafts, notes and memoranda that are not retained in ordinary course of business if public interest in nondisclosure outweighs public interest in disclosure

Other Express Exemptions • Trade Secrets • Personal financial data used to establish license applicant’s personal qualifications • Home addresses

Public Interest Balancing Test Exemption • Catch-all exemption • Protects records where public interest in nondisclosure clearly outweighs public interest in disclosure • Public interest is not administrative inconvenience. Refers to broader interests of public in general

Public Interest Balancing Test • Three step test for public interest balancing test: – Public interest in disclosure – Public interest in nondisclosure – Less intrusive alternatives to satisfy the public interest in disclosure

Public Interest Balancing Test. Example • Press requested copies of citizen complaints about airport noise • Public interest in disclosure – Monitor govtl response to complaints • Public interest in nondisclosure – Complainant privacy – Chilling effect on citizen complaints • Less burdensome alternatives – Attend meetings at council/board meetings – Contact interest groups – Visit affected neighborhoods • Court ruled in favor of withholding names of complainants

Waiver of Exemptions • Once disclosed, exempt record loses its exemption • No waiver if disclosure is made: – In legal proceedings – As otherwise required by law – To any governmental agency that agrees to treat the material as confidential

Duties Under the Public Records Act • Open for disclosure-records must be available for public inspection at any time during business hours • Assistance to requestors required • Make reasonable efforts to locate

Making a Request • Request may be made orally or in writing • Written requests are preferred – Reduce confusion about records requested – Permit tracking of the request • Confirm oral requests in writing

Specificity of Request • Request need not identify an exact record • Request may identify records by their general content – Must be sufficiently precise to permit County to locate records

Specificity of Request-Duty to Assist • If request is not specific and focused, County has a duty to assist the public in focusing the request – Assist in identifying requested information – Describe physical location of the record – Describe technology in which the record is housed – Help public to overcome practical barriers to access

Duty to Search • County must make reasonable efforts to locate requested records. • At a minimum, such efforts include: – Consulting record indexes – Consulting knowledgeable people – Looking in logical places

Duty to Search-Electronic Records • Special rule for electronic records • Record must be provided in electronic format used by the County if requested • Software developed by the County is not disclosable • Commercial software is not disclosable • Data housed in protected software may still be disclosable

Responding to a Request • County has up to 10 days to: – Determine if it will comply, in whole or in part and – Notify the requestor of its determination – County is not required to produce the records w/in 10 days • Response should be in writing and should indicate – Whether records exist – That they will be produced upon payment of estimated duplication costs – If records will be withheld, identify basis for withholding records, but not required to provide list identifying withheld records – If records will be withheld, must set forth names and titles/positions of each person responsible for denial

Responding to Request • 14 Day Extension May be Requested only in “unusual circumstances” • Need to search for and collect documents from field facilities/other locations • Need to search for, collect and examine voluminous amount of records • Need for consultation with another agency having substantial interest in request • Need to compile data, write programming language or computer program, or to construct a computer report to extract data

Inspection or Records • General Rule: County records may be inspected at any time during regular office hours • Appointment to inspect may be necessary due to County’s need to: – Location of requested records – Gather multiple records – Redact exempt information prior to inspection • Can impose reasonable restrictions to prevent interference with business operations • Employee should be present at all times

Production of Records • County has reasonable period of time to provide records after receipt of costs of duplication • Must produce existing reasonably identifiable records not exempt from disclosure • Electronic records

Costs of Production • County may charge the direct cost of duplication – Pro rata cost of duplication equipment – Pro rata cost of equipment operator – County charges $. 25/per page • Direct costs do not include – Research – Retrieval – Redaction • Must provide good faith estimate of when copies will be available

Costs of Production-Electronic Records • Special rules for electronic records • County may recover full costs when it is required to: – Extract or compile data – Undertake programming to produce data

Withholding Records • Exemptions are generally discretionary, not mandatory • County may redact exempt information; remainder of record must be disclosed • County need not provide privilege or exemption log of exempt records • County must provide a sufficient explanation of reasons for withholding records • If exempt information disclosed, exemption is waived

Enforcement • Litigation • If plaintiff prevails, court costs and attorney’s fees awarded – Plaintiff prevails if lawsuit motivates disclosure – After lawsuit filed, any voluntary disclosure means plaintiff has prevailed

Handling of Requests • All requests should be forwarded to the department director or agency administrator for handling per departmental/agency protocols • All requests should be promptly referred as soon as received • If request seeks records from multiple departments or agencies, coordinate a joint response on behalf of County

Role of County Counsel • General advice as to PRA procedures requirements • General advice as to whether particular records are subject to exemption • Mandatory consultations if – PRA is submitted by attorney or in connection with claim or litigation – PRA involves controversial or sensitive matter