1. Records Disclosure Laws for California Public 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 , 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”? What is not a “writing”?
Any document prepared, owned, used, retained by local agency in any form
s/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 § 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, 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 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 $

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 Statutory Fees
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 § 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 , and 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
Main phone
Direct dial
Fax
Website: