The California Public Records Act

C e r r i t o s | F r e s n o | I r v i n e | M a r i n | P a s a d e n a | P l e a s a n t o n | R i v e r s i d e | S a c r a m e n t o | S a n D i e g o

Presented by:

Kathryn E. Meola, Partner

[email protected] (916) 923-1200

A. Christopher Duran, Senior Counsel [email protected] (559) 225-6700

The California Public Records Act

March 17, 2021

Santa Clara County Board of Education

Santa


©2021 Atkinson, Andelson, Loya, Ruud & Romo 1

Cerritos • Fresno • Irvine • Marin • Pasadena • Pleasanton • Riverside • Sacramento • San Diego

PRESENTED BY: Kathryn E. Meola, PartnerA. Christopher Duran, Senior Counsel


March 17, 2021

Santa Clara County Board of Education

Agenda

• Brief Recap — Brown Act & Training

• The Law

• Disclosable Documents

• Exemptions

• Considerations When Denying Access

• Records Created on a Private Device (City of San Jose)

• Identity of the Requestor

• Deadlines for Responding

• Questions

1



Brief Recap — Brown Act & Training at Board Meetings

• Brown Act — Temporary Advisory Committee

– Composed solely of less than a quorum.

– Serves a limited or single purpose.

– Will be dissolved once the specific task is completed.• Versus a “meeting” — ANY

congregation of a majority of members.

• To hear, discuss and deliberate.

• Training at Public Board Meetings

– BB 9005 — Participate in professional development and commit time and energy necessary to be an informed and effective leader;

– BB 9240 — Training is encouraged; Workshops and consultations may be presented that the entire governance team.

2

CPRA — The Law

• Enacted in 1968.

• “Access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.” (Gov’t. Code §6250.)

• In 2004, voters made this principle part of the Constitution.

• “The people have the right of access to information concerning the conduct of the people’s business, and therefore, the writings of public officials and agencies shall be open to public scrutiny.” (Cal. Const., art. I, § 3.)

3



CPRA — The Law

• Public access laws serve a critical function.

• “Openness in government is essential to the functioning of a democracy.”

• Implicit in the democratic process is the notion that government should be accountable for its actions.

• In order to verify accountability, individuals must have access to government files.

• Such access permits checks against the arbitrary exercise of official power and secrecy in the political process.

4

CPRA — The Law

• Government Code § 6250

– “In enacting this chapter, the Legislature, mindful of the right of individuals to privacy, finds and declares that access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.”

• Proposition 59 (Cal. Const., Art. I, Sec. 3(b))

– Requires that statutes or other types of governmental decisions, including those already in effect, be broadly interpreted to further the people’s right to access government information and narrowly construed if it limits the right of access.

5



CPRA — The Law

• The General Rule

– All records must be disclosed unless they fall under an exemption.• General public policy favors disclosure.

– Unless an individual’s right to privacy outweighs the public’s interest in disclosure, or if disclosure is exempted by statute, a record retained by a public agency in the course of business must be disclosed upon request. (BRV, Inc. v. Superior Court (2006) 143 Cal.App.4th 742.)

6

CPRA — Disclosable Documents

• What is a public record?

– “Public records include any writing 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.” (Gov’t. Code § 6252(e)).

– “Writing means any handwriting, typewriting, printing, photostating, photographing, photocopying, transmitting by electronic mail or facsimile, and every other means of recording upon any tangible thing any form of communication or representation…” (Gov’t. Code § 6252(g))

– Unless otherwise exempt, a public record in electronic format is subject to disclosure. (Gov’t. Code § 6253.9.)

7



CPRA — Disclosable Documents

• Disclosure of Public Records

– Do responsive records currently exist?• The CPRA does not require a public agency to “create” records. (Haynie v. Superior Court

(2001) 26 Cal.4th 1061, 1075; Fredericks v. Superior Court (2015) 233 Cal.App.4th

209,227.)

– If so, remember the General Rule:• Public policy dictates there is a fundamental right to access.

– Determine if either category of exemptions applies:• Exemptions under Government Code section 6254.

• “Catchall” Exemption under Government Code section 6255.

8

CPRA — Exemptions

• Government Code section 6254, et seq.

– Contains numerous exemptions (e.g. draft documents, personnel records, records exempt under other statutes, etc.)

– Based on two general principals;1. Individual privacy interests; and

2. The Government’s need to perform its assigned functions in a reasonably efficient manner.

9



CPRA — Exemptions

• Government Code section 6254(c)

– Personnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy.

– This exemption comes into play frequently with school districts and requires a careful balancing of interests.

– Just because a document is in a personnel file, that fact does not automatically make it a “personnel document” exempt from disclosure.• The individual’s privacy interest in non-disclosure must be balanced against the public’s

interest in disclosure.

• In order to withhold a document, there must be a “clear overbalance” on the side of the employee confidentiality.

10

CPRA — Exemptions

• Government Code section 6254(a)– “Preliminary drafts, notes, or inter-agency or intra-agency memoranda which are not retained

in the ordinary course of business are exempt, provided that the public interest in withholding those records clearly outweighs the public interest in disclosure.”

• Government Code sections 6254(b) and 6254.25– “Documents specifically prepared for litigation to which the agency is a party…”

• These documents are exempt until the pending litigation or claim has been finally adjudicated or otherwise settled.

• Included may be investigation reports prepared in anticipation of or in preparation for litigation.

11



CPRA — Exemptions

• Government Code section 6254(k)– “Records, the disclosure of which is exempted or prohibited pursuant to federal or state law,

including, but not limited to, provisions of the Evidence Code relating to privilege.”

• This includes documents reflecting deliberative or policy-making processes, as well as attorney-client privileged material.

• This also includes documents protected by other provisions of the Education Code (e.g. section 49073 through 49079 concerning confidentiality of student records) and federal law (e.g. Family Educational Rights and Privacy Act).

12

CPRA — Exemptions

• Government Code section 6254(g)

– “Test questions, scoring keys, and other examination data used to administer a licensing examination for employment, or academic examination…”

• Government Code section 6254.3

– Public employees’ home addresses, phone numbers, and personal email addresses.

13



CPRA — Exemptions

• Catchall Exemption — Government Code section 6255– “The agency shall justify withholding any record by demonstrating… that based on the facts

of the particular case, the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.”

• Case-by-case basis if document does not fall within a specific exemption under Section 6254.

• Balancing test (public v. public) differs from the basis for statutory exemptions (private vs. public).

– Proceed with caution.

– Section 6255 is narrowly construed.

– The agency opposing disclosure bears the burden of proving that one or more of the exemptions apply in a particular case.

– When in doubt, consult legal counsel.

14

CPRA — Considerations when Denying Access

• Attorney’s Fees– If a plaintiff brings a lawsuit under the CPRA and prevails, an award of attorney’s fees is

mandatory. (Los Angeles Times v. Alameda Corridor Transp. Auth. (2001) 88 Cal.App.4th

1381.)

– A plaintiff “prevails” if the litigation motivated the agency to release documents. (Motorola v. Dept. of Gen. Servcs. (1997) 55 Cal.App.4th 1136.)

15



CPRA — Records Created on Private Device

• City of San Jose v. Superior Court (2017) 2 Cal.5th 608– Are writing concerning the conduct of the public business beyond the CPRA’s reach merely

because they were created, sent or received using a private device or a nongovernment account?

– Answer: NO

– When a public employee uses a personal account or device to communicate about the conduct of public business, the writings may be subject to disclosure under the California Public Records Act.

16

CPRA — City of San Jose

• A public employee’s or official’s communications related to the conduct of the public business do not cease to be public records just because they were sent or received using a personal account.

• Important Considerations– Work-related versus primarily private communications,

• “[A]t a minimum, a writing must relate in some substantive way to the conduct of the public’s business.”

• Does not include “every piece of information the public may find interesting.”

– Excludes communications that are primarily personal in nature (e.g. a public employee casually discussing a colleague’s personal shortcomings through email.)

17




• The Court determined that records in an entity’s actual or constructive possession must be disclosed.– Constructive possession: agency has the right to control the records, directly or through

another person.

– Records do not lost public record status because they are located in an employee’s personal account.

– A writing has been constructively “retained by” an agency even if the writing is retained in the employee’s personal account.

18

CPRA — City of San Jose — Guidance

• Supreme Court’s Limited Guidance for Agencies1. When a CPRA request seeks records believed to be in an employee’s personal account or

device, communication the request to that employee.

• Relay on employee (or official) to search his or her own files.

• Train employees.

• Obtain an affidavit attesting to the search.

• Final determination of whether to produce a record rests with the agency.

19




• Supreme Court’s Limited Guidance for Agencies2. Preventative Measures — develop policies that reduce the incidence of public records

being maintained solely in private accounts and devices.

• Require all emails involving agency business, sent by an employee or official through a private account, to be copied to the employee’s agency email account.

• Discourage employees and officials from using personal accounts to conduct agency business.

20

CPRA — The Identity of the Requestor

• The CPRA defines a “member of the public” as “any person, except a member, agent, officer, or employee of a federal, state, or local agency acting within the score of his or her membership, agency, office or employment” (Gov’t Code 6252(b)) – A “member of the public” also includes other public agencies. (Los Angeles Unified School

District v. Superior Court (2007) 151 Cal.App.4th 759)

– A “person” under the PRA “includes any natural person, corporation, partnership, limited liability company, firm or association.” (Gov’t Code § 6252(c))

• Unions (Associated Chino Teachers v. Chino Valley Unified School District (2018) 30 Cal.App.5th

530)

• Sub-agencies

• Individual Board Members

21



CPRA — The Identity of the Requestor

• The CPRA “does not allow limitations on access to a public record based upon the purpose for which the record is being requested, if the record is otherwise subject to disclosure.” (Gov’t Code 6257.5.)

• The motive of the requester is irrelevant; the question is whether disclosure serves the public interest. (County of Santa Clara v. Superior Court (2009) 170 Cal.App.4th 1301, 1324.)

• This does not mean an agency must ignore the potential uses of the records if those uses would disrupt operations or be contrary to the public interest.

22

CPRA — Deadlines for Responding

• Determination of Whether Records Exist– Upon receipt of a CPRA request, an agency has 10 days to determine whether the request

seeks disclosable public records.

– 10 days to determine if records exist, not to produce records.

• In “unusual circumstances,” the agency may take up to 14 additional days to determine whether the request seeks disclosable records.

• If there are disclosable records, the agency must provide an estimate as to when the records will be made available.

23



CPRA — Electronic Records on Websites

• The CPRA allows an agency to direct a member of the public to the website location where a public record is posted.

• However, if the requesting party is unable to access or reproduce the record from the website, the agency must “promptly provide a copy of the public record.”

24

QuestionAnswer

Session

25



For questions or comments, please contact:

Thank YouKathryn E. Meola(916) 920-6971

[email protected]

A. Christopher Duran(559) 225-6700

[email protected]

26

Disclaimer

This AALRR presentation is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR presentation/publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process.

©2021 Atkinson, Andelson, Loya, Ruud & Romo

27

www.aalrr .com

Kathryn E. Meola Partner

916-923-1200

[email protected]

Kathryn Meola provides representation and legal counsel to school districts

and county offices of education in the areas of personnel matters, contracts,

policy development, general and special education, charter schools, open

meeting laws, public records act requests, and administrative hearings and

litigation.

Prior to joining AALRR, Ms. Meola was General Counsel and Director of the

Education Legal Alliance (ELA) for the California School Boards

Association. She was the first woman to serve as General Counsel in the

organization’s 88-year history. As General Cousel, Ms. Meola provided

legal counsel to the leadership and management of CSBA and oversaw all

legal department programs and services. She also led the ELA, a

consortium of school districts, county offices of education and regional

occupational centers/programs that pooled resources to pursue and defend

public education interests in the courts and before state agencies.

Prior to joining CSBA, Ms. Meola also worked for the San Mateo County

Counsel’s Office, where as Chief Deputy she advised school districts

across the county in both general education and special education law. As

Chief Deputy, Ms. Meola served as general counsel for the San Mateo

County Superintendent of Schools and the San Mateo County Board of

Education, and as counsel to the Clerk of the Board of Supervisors and the

Deputy County Manager responsible for Criminal Justice and Realignment.

She also represented the San Mateo County Community College District,

the San Mateo Union High School District, and the Sequoia Union High

School District. In addition, Ms. Meola supervised the County’s public safety

departments, as well as its School Deputy and Special Education Deputy

teams.

OFFICE

2151 River Plaza Drive

Suite 300

Sacramento, CA 95833

INDUSTRIES

Educational Agencies

EDUCATION

J.D., University of San Diego School of

Law

B.A., Trenton State College (renamed

The College of New Jersey)

ADMISSIONS

1994, California

PRACTICE AREAS

ADA, IDEA & Section 504

Board Governance

Contract Enforcement & Collective

Bargaining

Discrimination & Harassment

Education Litigation

Employee Performance & Evaluation

Student Discipline

Student Services and Disabilities

Kathryn E. Meola

p 2

www.aalrr .com

Prior to joining the County Counsel's Office, Ms. Meola worked as a Deputy

District Attorney for San Mateo County. In this role, she tried more than 50

jury trials to verdict including cases of homicide, domestic violence, sexual

assault and insurance fraud.

Honors & Recognitions

2005, San Mateo County Employee of the Year

1994, recipient of the Joseph P. Busch Criminal Justice Award

Representative Matters

Co-counsel on San Mateo County Community College District v. Locus

Point Networks, et. al., 17CIV01534, $114 million claimed in damages

resulting from breach of contract and FCC auction;

Co-counsel in the initiation of a Consumer Choice Aggregation (“CCA”),

resulting in a new public entity formation (Joint Powers Agreement),

Peninsula Clean Energy (“PCE”) comprised of all Cities within the

Peninsula, along with San Mateo County (2015-2016);

Integral in the initiation of a County-wide Coalition of Safe and

Supportive Schools and Communities, led by Congresswoman Jackie

Speier, by creating the “Big Five” Coordinated emergency response for

law enforcement, schools and public agencies and drafting a

Memorandum of Understanding for Information Sharing (2013-2016);

Student (MT) v. Sequoia Union High School District (ALJ Marson)

expedited student discipline administrative due process tried to

successful verdict (2017) and upheld on appeal in front of the County

Board of Education;

Student (CM) v. Sequoia Union High School District (ALJ Martin) special

education administrative due process hearing tried to successful verdict

(2015);

Yevgeniy Davidovich v. County of San Mateo (2012) USDC 12-CV-

02148-JST – § 1983 cause of action for excessive force alleged against

San Mateo County Sheriff’s staff when Plaintiff was placed in custody

following an arrest for DUI. Successful resolution was reached after filing

a Motion for Summary Judgment.

Marisol Carbonel v. County of San Mateo (2010) Superior Court,

#483706, employee alleged wrongful termination, harassment and

discrimination claim, settled with a §998 offer of compromise.

Kathryn E. Meola

p 3

www.aalrr .com

In the Matter of RL (2008) – Portola Valley School District credentialed

teacher termination tried to a Commission on Professional Competence

(ALJ Benjamin). The verdict affirmed termination of employment.

Events & Speaking Engagements

ACSA Special Education Academy, Presenter, 2013-2019

NLB, Presenter, Special Education and General Education topics, 2016-

2019

Alerts, Articles & Publications

Ms. Meola contributes to the firm’s education law publications.

Community & Professional

Women Lawyers of Sacramento, Board Member, 2019-present

City of Belmont, Planning Commission, Commissioner, (2017-2019)

San Mateo County Charter Review Committee, Member, 2017

State of California Special Education Advisory Committee, Committee

Member, (2016-2018)

Women in County Government Leadership – New Leaders – Taking the

Next Step, Panel Member, (2015)

www.aalrr .com

A. Christopher Duran Senior Counsel

559-225-6700

[email protected]

A. Christopher Duran is a skilled litigator with over 16 years of experience

representing both public and private sector clients in education law, labor

and employment, and a variety of civil litigation matters. He practices

primarily in the areas of employee discipline, unfair labor practice, and

employment discrimination.

Mr. Duran has successfully negotiated numerous permanent teacher,

classified employee, and classified management dismissals. He regularly

represents school district clients with grievance arbitrations and unfair labor

practice cases, which usually result in favorable settlements or case

dismissals.

Mr. Duran’s representation of school districts also includes the defense of

civil rights cases in both state and federal courts concerning discrimination

based upon race, gender, and disability. He has achieved remarkable

results with his motion practice work in particular, with many successful

summary judgment motions and motions to dismiss.

Mr. Duran’s private sector experience includes eight years of civil litigation

and insurance defense, including extensive trial and arbitration experience.

He has obtained numerous successful arbitration awards, judgments, and

settlements in defense of automobile, bad faith, and premises liability

cases.

Publications

Mr. Duran contributes to the firm’s publications and blogs and is the author

of “New California Law Seeks to Protect Student-Athletes from Sudden

Cardiac Arrest,” Sports Litigation Alert (Jan. 2017).

OFFICE

10 River Park Place East

Suite 240

Fresno, CA 93720

INDUSTRIES

Educational Agencies

EDUCATION

J.D., Southwestern University School

of Law

B.S., California State University,

Fresno

ADMISSIONS

1997, California

U.S. District Court, Eastern District of

California

PRACTICE AREAS

Construction—School Facilities

Labor & Employment Law

Litigation

The California Public Records Act

Documents

Transcript of The California Public Records Act